On 20 September, a constituent assembly in Kathmandu promulgated a new constitution. It was nine years since the end of a civil war, when Maoist rebels had demanded, among much else, that the kingdom of Nepal be transformed into a federal republic. In that time, the country had sworn in seven different prime ministers, seen one constituent assembly come and go, and stumbled along with an interim body of laws. By promulgating the new constitution, the latest assembly, elected in late 2013 and controlled in almost equal share by the Nepali Congress and the Communist Party of Nepal (United-Marxist-Leninist), transformed itself into a legislative parliament, with another two years of tenure. Nepal, meanwhile, was divided into seven provinces—each numbered but temporarily nameless, and with borders that angered large sections of the population.
The discontent was greatest in the Madhes, or Terai—Nepal’s populous southern plains, contiguous with the plains of north India, with which they share an open border and firm bonds of culture and history. Ethnic Madhesis have long complained of marginalisation at the hands of Nepal’s historical ruling elite—high-caste men of the Pahadi people of the hills, with their power centralised in Kathmandu. Recently, the plains-dwellers had been warning against any Pahadi encroachment upon federal borders and constitutional provisions that they hoped would ensure Madhesi empowerment. In August, dissatisfaction had already turned into violence as politicians in Kathmandu unilaterally drew and redrew the borders of proposed provinces.
At the start of October, protests in the Madhes continued to escalate in the face of violent state repression, and over 45 people had lost their lives. The government had made no real attempt at dialogue. A damning report by the international advocacy group Human Rights Watch, released later in the month, criticised both the government and protestors, and called on both to desist from using violence. Soon after the promulgation, India reportedly sent the government a seven-point wish list of amendments largely sympathetic to the Madhesi cause. It also stopped supply convoys headed into Nepal on the pretext of the instability, in what appeared an undeclared blockade that violated India’s treaty obligations to its northern neighbour. In the last week of October, the Madhes remained defiant, the government had finally issued a formal invitation for dialogue, and the country had ground to a standstill. The blockade is estimated to have cost the country’s economy more than the disastrous earthquakes that rocked it in April and May.
The first step out of this crisis is resolving Madhesi grievances. Dipendra Jha, a lawyer and vocal Madhesi-rights activist, told me in Kathmandu last month that if Nepal wants “to address the dissatisfaction in the Madhes,” amending the constitution “is the only option.” The government seemed to agree. Only two weeks after passing the new constitution, it tabled an amendment proposal that would address two key Madhesi demands: guarantee proportional representation of minority groups in all state agencies, and delineate electoral constituencies based on population, so that more populous provinces receive a proportionally larger share of seats in the federal parliament. Madhesi groups rejected it, saying it ignored other concerns—particularly the redrawing of provincial borders to keep what they consider Madhesi territory politically cohesive—but still, it was a start. As this piece went to press, though, the parliament was on a festival break, and the proposal’s fate remained unclear.
If it is taken forward, the proposal will be a crucial test of how Nepal’s new legislative and political system handles amendments. The question facing Nepal now is how, and how soon, it can adjust its laws to placate its discontents—who include, among others, numerous ethnicities that have voiced solidarity with the Madhes, and feminists criticising patriarchal citizenship laws. The trouble is that the provisions of the constitution, and the fallout from its passing, promise more confusion than clarity. Politically and procedurally, there is a danger that Nepal has backed itself into a corner.
According to the constitutional lawyer Chandra Kanta Gyawali, the amendment proposal “is politically and constitutionally illegitimate.” Nepal’s interim constitution, put in place in 2007 as part of a transitional peace deal with the Maoists, gave an elected assembly the right to shape and pass all new laws on its own. “Now that the interim constitution is dissolved,” Gyawali told me, that assembly, as a legislative parliament, “does not have that right.” By the new constitution, Nepal’s federal parliament can only pass, by a two-thirds majority, bills that do not interfere with the structures or workings of the federated provinces. There isn’t full clarity on what falls under the federal parliament’s purview alone and what does not, Gyawali said, but the current amendment proposal, which would have far-reaching consequences for provincial government, should require approval from the provinces. That would mean having provincial parliaments, which would first require provincial elections—and the responsibility for holding those falls to the federal government.
That leaves Nepal in a quandary. Provincial elections seem out of the question before some settlement is reached to end the unrest in the Madhes. Without those elections, however, the federal parliament remains technically unable to make the kinds of legal changes that protestors are demanding. This becomes especially thorny in addressing demands for redrawing provincial boundaries. The new constitution lays out a procedure for any amendments pertaining to demarcation: they must be tabled and passed in the federal parliament, before being sent to the relevant provincial parliaments for approval. If they are approved there, with a two-thirds majority, they come back to the federal parliament for final confirmation. Without resolving the Madhes crisis, this avenue to local buy-in on decisions about provincial boundaries is not available.
Legally, the only way out may be the use of a special provision of the constitution—the pungently named “power to remove difficulties.” It allows the government to enact temporary laws to find a way out of an impasse—much like the Indian constitution’s provisions for temporary executive ordinances are meant to. In Nepal, such laws must be recommended by the council of ministers and approved by the president in order to come into force. Then, they must be tabled for approval by the federal parliament within 60 days. “This does not mean that the constitution can be amended” via this provision, Gyawali explained, but it could allow the government to take the first steps in addressing constitutional grievances in the present situation. For instance, it could be used to redraw provincial boundaries after negotiation with the protestors, putting a compromise proposal into temporary effect to placate them and buying time to form regional parliaments that can then see the compromise through into permanent law.
Of course, turning any temporary laws into permanent amendments would also require the approval of the federal parliament. That, though, would require enough representatives to vote for the government’s proposed amendments, and there is no guarantee that they will. “Alliances that came together to pass this constitution are already breaking,” Dipendra Jha told me, and it’s unclear whether anyone can muster the two-thirds majority required for passing new laws or amendments. Less than a week after the constitution came into force, Baburam Bhattarai, a former prime minister and the chief ideologue of the United Communist Party of Nepal (Maoist), quit the outfit of former Maoist rebels, splitting the third largest party in the parliament. Two weeks later, the alliance between the only nominally communist CPN(UML), which holds 175 of the 601 parliamentary seats, and the Congress, which controls 196, also shattered.
In its place, the CPN(UML) created an alliance involving over a dozen other parties, including the Maoists and the Hindu-right Rashtriya Prajatantra Party–Nepal. On 11 October, it successfully elected KP Oli, a CPN(UML) stalwart, as Nepal’s new prime minister—after his Congress predecessor fulfilled a pledge to step down after seeing a new constitution into law. But with the many interests the new alliance brings together, whether it will maintain unity on any amendments remains to be seen.
The elevation of Oli and the CPN(UML) adds new complications to the politics of the Madhes crisis. Prior to the party’s split with the Congress, it was reported to have opposed the amendment resolution, though the Congress tabled it anyway. Several Madhesi commentators have decried Oli as a divisive figure, a stalwart of the ruling elite with little in his history to suggest he will pursue meaningful compromise. Oli has publicly spoken out against Madhesis and Nepali indigenous groups, calling them “losers” and “nameless, faceless and useless parties.” In January, he told Madhesi activists demanding that Nepal’s plains be declared a unitary state to also claim Uttar Pradhesh and Bihar, if they thought “every piece of flat land is Madhes.” Presumably to bolster his standing in the south, Oli appointed a Madhesi leader—Bijaya Kumar Gachhadar of the Madhesi Rights Forum, Democratic—as one of his two deputies. The Madhes did not welcome this, and activists accused Gachhadar of being motivated by a lust for power rather than the good of the region. The Samyukta Loktantrik Madhesi Morcha, the principle alliance of agitating Madhesi parties, continued its protests unabated.
Nobody in Nepal can claim not to have seen the present crisis coming. At the time of the earthquakes this spring, Nepal’s parties were still at loggerheads about the country’s future. Just as the battered country turned to the enormous task of reconstruction, the Congress, the CPN(UML) and the Maoists came together and—many say cynically—put the constitution-writing process into overdrive.
In the following months, the four parties signed a 16-point agreement on creating eight provinces, with their names and shapes to be determined by a commission after a new constitution had been passed. That agreement was blocked by Nepal’s supreme court, but protests had already begun. By late July, the Madhes was demanding that the naming and demarcation of states be finalised, with proper consultation, before finalising the constitution. In early August, the four parties scrapped the eight-province idea, and presented a six-province model instead—again without accounting for Madhesi concerns, and setting off riots. More protestors died, and finally a tweaked seven-province model was enshrined by the constitution. By that time, the Nepal Army had been deployed in many southern districts, several towns in the Madhes had been under government curfew for almost a month, and many others were shut down by protestors.
In shaping amendments now, the government will have to avoid the temptation of again resorting to unilateral tinkering. Gachhadar, on assuming his new post as deputy prime minister, told reporters that “the issues, differences and demands of the Madhesi and other groups will be resolved by adjusting the states through amendments in the constitution.” What neither he nor anyone else in the new cabinet has done is outline how those amendments will be shepherded through a legislative structure Nepal has not yet tested, or how the government plans to bring a broad cross section of Madhesi voices to bear on shaping them. It is in the latter process, perhaps even more than in legislative battles, that Oli’s government will face its most delicate political challenges.