Nepal Adopts Secular Constitution Amid Violent Protests
On September 16, 2015, the Constituent Assembly of Nepal adopted a new constitution almost a decade after the end of its civil war. The country’s constitution, the first to be drafted by popularly elected representatives, establishes Nepal as a secular federal republic. The constitution also divides Nepal into seven provinces and establishes a proportional electoral system to elect federal and state officials. While on the one hand, the constitution has received praise for its provisions protecting lesbian, gay, bisexual, and transgender (LGBT) rights, there has also been strong criticism about other aspects of the constitution. For example, the Madhesi and Tharu ethnic minority groups continue to protest provisions concerning the proposed provincial boundaries, on the basis that their political representation will be more limited. Additionally, women’s rights groups have protested on the basis that certain constitutional provisions discriminate against women. Scholars have also expressed concerns regarding the lack of public participation in the process of drafting and implementing the constitution. Protests against the constitution have already resulted in more than 40 deaths since August 2015. [NY Times: Amid Protests; BBC: Why is Nepal’s Constitution Controversial?]
Background of the Civil War in Nepal
The United Communist Party of Nepal (Maoist), established in 1994 by Pushpa Kamal Dahal (“Prachanda”), launched a “People’s War” in 1996, with the aim of ousting the existing government and creating a single-party communist republic, benefiting marginalized sectors of Nepali society, including Dalits (formerly known as “untouchables,” Dalits have the lowest status in the Hindu caste system), women, and ethnic and indigenous groups. Between 1996 and 2001, the Maoists gained control of rural areas in Nepal while the government continued to control cities and towns. The conflict escalated in 2001, when the Maoists withdrew from peace talks and attacked army barracks, district capitals, and army posts in more than half of Nepal’s 75 districts. In response, the government declared a national state of emergency and mobilized the Royal Nepalese Army. In 2005, King Gyanendra was involved in a royal coup to consolidate power, dismissing the entire government, assuming executive powers, and declaring another state of emergency during which period civil liberties were restricted. Following this, the Maoists engaged in more violent attacks against government targets and security forces. [BBC: Profile; Insight on Conflict; Reuters]
Later in 2005, the Maoists announced a unilateral ceasefire and joined an alliance with Nepal’s seven main political parties. Shortly after this, the “People’s Movement” (known as Jana Andolan II) was established to restore democracy. On November 21, 2006 the government and the Maoists signed the Comprehensive Peace Accord, bringing about the end of the civil war, establishing a Constituent Assembly to draft the constitution, and putting into place an interim government. See Human Rights Watch, Children in the Ranks, The Maoists’ Use of Child Soldiers in Nepal (February 2007). [BBC: Profile; BBC: Nepal’s Ousted King; ICTJ; Insight on Conflict; BBC: Timeline]
While figures vary widely as a result of under-reporting, according to Nepal’s Peace and Reconciliation Ministry, during the 10-year civil war, at least 1,300 people were forcibly disappeared, more than 16,000 people were killed, and tens of thousands were displaced. [Al Jazeera: Seeking Justice] In addition, all parties to the armed conflict arbitrarily detained people, and committed torture, rape and other forms of sexual violence. See International Center for Transitional Justice, To Walk Freely with a Wide Heart: A Study of the Needs and Aspirations for Reparative Justice of Victims of Conflict-Related Abuses in Nepal (September 2014).
Background of the Drafting of the Constitution
The recently adopted constitution is the first of Nepal’s constitutions to be drafted by elected representatives, as the previous six constitutions were drafted by a small select group of people. At the end of the civil war in 2006, it was agreed that a Constituent Assembly would be elected to draft a new constitution; an interim constitution was adopted in 2007.
The following year, the monarchy was abolished and the Constituent Assembly (CA) was popularly elected to a two-year term. The CA was comprised of different political parties, including the United Communist Party of Nepal (Maoist), Nepali Congress, Communist Party of Nepal (Unified Marxist-Leninist), and Madhesi-based regional parties including the Madhesi Janadhikar Forum, the Tarai-Madhes Democratic Party (TMDP), and the Sadbhavana Party (SP). See Krishna Khanal, The Participatory Constitution Making Process in Nepal: An Assessment of the CA Process (2008–2012), in Participatory Constitution Making in Nepal: Issues of Process and Substance (2014), 1-2, 8, 12.
Once the CA was elected, civil society groups began an outreach program to engage the public in the constitution drafting process. For example, citizens, political parties, and civil society were encouraged to submit their views regarding the constitution to relevant government committees. In response to the opinions received, the CA thematic committees developed detailed questionnaires. However, critics questioned the effectiveness of these questionnaires, noting that many found the questions to be too lengthy, technical, and complex.
In addition to the CA outreach program, in 2008, with the Nepali government’s consent, the United Nations Development Programme (UNDP) coordinated the participatory constitution-making process among donors, forming a consortium that included the Department for International Development (DFID), the Danish International Development Agency (DANIDA), the Norwegian Embassy and the United States Agency for International Development (USAID). Additionally, the Support to Participatory Constitution Building in Nepal (SPCBN) project was created to gather international assistance and promote public participation.
NGOs also made submissions on a number of issues including women’s rights (e.g., Pro-Public); children’s rights (e.g., CZOPP); and issues related to Dalits, indigenous groups, including the Madhesis (indigenous population of the flat southern region of Nepal, known as the Terai), and persons with disabilities. See id. at 14-19.
Drafting, Negotiation, and Constitutional Crisis
In 2009, the CA thematic committees started formulating drafts of the constitution. This process included consulting hundreds of experts. There were a number of issues upon which committee members had differing opinions, which led to the creation of a Dispute Resolution Subcommittee. Disagreements arose with respect to a number of issues including the form of government, type of electoral system, composition of the judiciary, and right to self-determination and citizenship. However, federalism was the most contentious issue, because of the impact it could have on caste and ethnic and regional groups, particularly in the context of Nepal’s diverse population , with approximately 125 caste or ethnic groups and about 123 languages.
In determining how to divide Nepal into provinces, members of the CA had to consider whether the new boundaries should be demarcated on the basis of the country’s geographic features, capacity for governance, access to resources, and potential for development, or whether the boundaries should be based on ethnicity, which would allow members of the same ethnicity, caste, or language to exercise greater control in a particular region. See International Institute for Democracy and Electoral Assistance, Creating the New Constitution: A Guide for Nepali Citizens (2008), 177-178.
The CA’s term was extended because the political parties could not agree on the number and political boundaries of the country’s provinces. Although parties came to an agreement in May 2012, the Madhesi parties began protesting, and the United Communist Party of Nepal (Maoist) withdrew from the agreement. This led to the dissolution of the first CA, thus stalling the constitution making process.
Elections for the second CA were held in November 2013, after which the constitution-making process was resumed in 2014. See id. at 1, 19-24. See also The Carter Center, Political Transition Monitoring in Nepal 2009-2014, 2014, 18. [CNN; NY Times: Amid Protests]
The Effect of the Earthquakes on the Constitution-drafting Process
In April and May 2015, Nepal was hit by a 7.8 and 7.3 magnitude earthquake, respectively; these earthquakes killed more than 8,800 people, and damaged or destroyed almost 800,000 homes. Almost three million people were still in need of urgent assistance as of July 23, 2015. [Al Jazeera: Timeline; IFRC Press Release] Following this, Nepal’s political parties began compromising on issues on which they had been deadlocked, including whether Nepal should adopt a federalist system, noting that dividing the country into provinces would allow all major political parties to assist with post-earthquake reconstruction. [NY Times: Earthquake Prods Nepal]
The draft constitution was endorsed by the Constituent Assembly on September 16, 2015 with 507 votes, significantly more than the required two-thirds majority. Out of 598 CA members, 532 participated in the voting process; 25 members, all belonging to the Rastriya Prajatantra Party Nepal, voted against the draft constitution. The majority of the votes in favor of the draft constitution belonged to members of the Nepali Congress, the Communist Party Nepal (Unified Marxist-Leninist), and the Unified Communist Party of Nepal (Maoist). Sixty representatives boycotted the vote, many of whom were members of Madhesi-based regional parties, and five representatives were absent. [The Himalayan Times: Overwhelming Majority Endorses Draft Constitution; CNN]
The constitution was promulgated by President Ram Baran Yadav on September 20, 2015. [The Kathmandu Post: Constitution of Nepal 2015]
Key Constitutional Provisions with Respect to Governance
The new constitution, the first to be drafted by a popularly elected Constituent Assembly, contains eight parts and 305 articles. [The Himalayan Times: Nepal Embarks on Journey; The Indian Express: Nepal’s Latest Constitution; UN News Centre] Some key components of the new constitution include the following:
The new constitution, which establishes Nepal as a secular republic rather than a Hindu Kingdom, as it was until the monarchy was abolished, defines secularism as “religious and cultural freedom including protection of religion and culture prevalent since ancient time.” [The Indian Express: Nepal’s Latest Constitution; WSJ Blog]
Nepal will shift from a unitary (where most of the powers of the State are exercised by the government at the national level) system of governance to a three-tier federal structure, with federal, provincial, and local governments. The country will be divided into seven provinces, which will be carved out of the currently existing 75 administrative districts. [The Himalayan Times: Nepal Embarks on Journey]
The constitution adopted a proportional representation electoral system to give marginalized groups, including women, ethnic minority groups, and low caste groups, more opportunities to participate in government. [The Indian Express: Nepal’s Latest Constitution]
Reaction to the New Constitution
Protection of LGBT Rights
The Human Rights Campaign praised the provisions in Nepal’s Constitution which provide protection against discrimination and violence for the LGBT population. Specifically, the constitution states that “sexual and gender minorities” cannot be discriminated against by the State or the judiciary; citizens may choose their preferred gender identity on their citizenship documents; and gender and sexual minorities have the right to participate in State mechanisms. However, the constitution does not mention same-sex marriage. Sunil Babu Pant, Asia’s first openly gay federal member of parliament and founder of the Blue Diamond Society, a Nepali NGO that fights on behalf of gender and sexual minorities, stated: “This new Constitution makes clear that we can be proud of our LGBT identities, and that we can be proud citizens of Nepal.” [Human Rights Campaign Blog; Human Rights Campaign: The New Constitution of Nepal and LGBT Rights]
Opposition to the Constitution
More than 40 people have been killed since August 2015 as a result of conflicts between protesters and the police; the victims include two children. [Channel News Asia; CNN] After the promulgation of the constitution, protesters blocked off two of the main border crossings to India, thereby reducing Nepal’s supply of supplies such as sugar, salt, and petrol. [BBC: Nepal Constitution: New Border Protests] Most recently, protesters have blocked a trading checkpoint between India and Nepal, as a result of which Nepal has faced shortages of petrol, diesel, kerosene, aviation fuel, and cooking gas. Nepal has claimed that this has been due to a blockade put into place by the Indian government, while India has asserted that it is due to protests that have disrupted trade across the India and Nepal border. [Al Jazeera: Minority groups; Al Jazeera: Fuel crisis]
As a way to demonstrate opposition to the constitution, Rajendra Mahato, a leader of the Unified Madhesi Democratic Front, an umbrella organization comprised of Madhesi parties, stated: “We are burning the document [the Constitution] as it curtailed our rights.” [NY Times: Amid Protests]
Expressing dissatisfaction with the new constitution’s provisions concerning marginalized groups, including women, indigenous groups, ethnic groups, Dalits, and emphasizing the need for a fair and progressive constitution, some Nepalese have declared that: “Such Constitution is not and will not be my Constitution” and have started a movement called “Not My Constitution.” [Community Empowerment and Social Justice Foundation]
Failure to Protect Ethnic Minority Groups’ Rights
According to the representatives of the Madhesi and Tharu ethnic minority groups, the constitution dilutes their representation in the national parliament; while under the interim constitution 58% of the parliament was elected by proportional representation, under the new constitution, only 45% of parliament will be elected according to this method. The proportional representation system has tended to result in greater numbers of individuals from indigenous and low-caste groups being elected. Representatives of these communities are therefore concerned that they will now be under-represented in the government. [BBC: Why is Nepal’s Constitution Controversial?; Al Jazeera: Nepal anti-constitution protests turn violent; CNN; Crisis Group]
Under the new constitution, 14 districts in the southern plains (Terai region) would be joined with provinces occupied predominantly by individuals living in the mountains, thereby diluting the political representation of the Madhesi and Tharu communities who largely live in the plains. [Al Jazeera: Unveiling Nepal’s Constitution; The Diplomat; The Kathmandu Post: Over 140 Lawmakers Seek Revision; Channel News Asia; CNN]
While the new constitution can be amended, the Madhesi and Tharu representatives have rejected the government’s request for talks because the government allegedly has not “created a suitable environment for talks.” At the international level, while China, Japan, the United Kingdom, and the United States have welcomed the new constitution, they also remain concerned that minority groups were not fully consulted during the process. India recently urged Nepal to adopt seven amendments to its constitution in support of the Madhesi representatives’ demands. In response, Nepal has criticized India’s interference. [Al Jazeera: Nepal Passes Secular Constitution; BBC: Nepal Constitution; Channel News Asia; CNN; The Indian Express]
Failure to Protect Women and Children’s Rights
Under the new constitution, Nepali women do not have the right to pass on citizenship to their children and the Constituent Assembly rejected a recent amendment to this provision. Almost two weeks before the Constituent Assembly adopted the drafted constitution, 45 members representing the Terai and Tharu constituencies submitted a 25-point memorandum, in which they urged Prime Minister Sushil Koirala to review a number of provisions, including the ones concerning citizenship. [The Kathmandu Post: Over 140 Lawmakers Seek Revision]
According to the new constitution, if a Nepali woman marries a foreign man, their children cannot become Nepali citizens unless the husband becomes a Nepali citizen; however, if a Nepali man marries a foreign woman and they have children, they can be Nepali citizens regardless of the mother’s nationality. In response, women rights’ activists participated in a 24-hour relay hunger strike for two weeks, noting that the new constitution renders them “second class citizens.” [BBC: Why is Nepal’s Constitution Controversial?; The Kathmandu Post: CA Snubs Proposal]
The Madhesi communities residing in the Terai region close to the Indian border have also expressed concern that the citizenship provisions will have a disproportionate effect on them because of the number of cross-border marriages in the region. [BBC: Why is Nepal’s Constitution Controversial?]
Renu Rajbhandari, president of the Women’s Rehabilitation Centre, noted that the citizenship provisions violate the international conventions that Nepal has ratified, including Article 9 of the UN Convention for the Elimination of All Forms of Discrimination against Women (CEDAW), according to which women have equal rights with men with respect to their children’s nationality. [OHCHR Status of Ratification] Additionally, the citizenship provisions will render thousands of children stateless, adding to the already 800,000 stateless people in Nepal. [The Kathmandu Post: CA Snubs Proposal]
Additionally, renowned Nepalese writer Manjushree Thapa has noted that the new constitution bars the children of Nepali women and foreign men from high political and security positions, while placing no similar restriction on the children of Nepali men married to foreign women. As a form of protest, Thapa burned a copy of the new Constitution. [Scroll.in Editorial; WSJ Blog]
Lack of Public Participation in the Constitution Making Process
During the drafting of the constitution, the International Commission of Jurists (ICJ) urged the Constituent Assembly to protect human rights in accordance with internationally accepted standards and emphasized that the drafting process should be inclusive and participatory. However, according to the ICJ, the four major political parties agreed on contentious issues and established a fast-track process to promulgate the constitution, thereby potentially undermining individuals’ ability to participate in the process. The ICJ released a detailed briefing noting its concerns with the draft constitution in July 2015. [Kathmandu Post: ICJ: Ensure Rights]
Concerns Regarding Excessive Force against Protesters
According to investigations conducted by Nepal’s National Human Rights Commission and civil society organizations such as Amnesty International, Nepali security forces have exercised “excessive, disproportionate, or unnecessary” force to quell protests, thereby violating internationally accepted standards. [Amnesty International] Additionally, UN Secretary-General Ban Ki-Moon expressed concern about the violence in Nepal and emphasized the need for dialogue and non-violence, and the importance of respecting the right to peaceful protest and freedom of assembly. [UN News Centre]