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Nepal's Constitution (I): Evolution not Revolution International Crisis Group 2012-08-27

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Asia Report N°233 - 27 August 2012
Crisis Group
A. Frustrated in Federalism 3
1. The sticking points 3
2. Bogeymen 5
3. Missing all the signs 6
4. The final weeks ofthe assembly 8
5. The mood outside Kathmandu 10
B. What Happened on 27 May 12
1. Talks 12
2. Breakdown 13
3. Emergency 15
4. Election 16
A. Reviving the Assembly 18
B. The Election Option 19
1. Elections are democratic and (relatively) legal 20
2. Elections will be violent and will not change things 20
3. Election challenges 21
C. Making Negotiations Better 22
1. Protecting Constituent Assembly functions 22
2. Improving broader negotiations 23
D. Outstanding Issues 23
E. Game Changers 24
A. India and China 27
B. Other International Players 28
A. Map of Nepal 31
B. Glossary 32
C. About the International Crisis Group 34
D. Crisis Group Reports and Briefings on Asia since 2009 35
E. Crisis Group Board of Trustees 37
Crisis Group
Asia Report N°233
27 August 2012
Nepal's peace process was to end with a new constitution.
Yet, after four years of delays and disputes, the country's
main political parties were unable to agree on federalism,
a core demand of large constituencies. On 27 May 2012, the
term ofthe Constituent Assembly, which also served as parliament, ended without the new constitution being completed. The parties must now decide what to do next: hold
an election for a new assembly or revive the last one. This
will be hard. Obduracy on federalism, bickering over a unity government, a changing political landscape and communal polarisation make for complex negotiations, amid
a dangerous legislative vacuum. The parties must assess
what went wrong and significantly revise the composition
and design of negotiations, or risk positions hardening
across the political spectrum. Talks and decision-making
need to be transparent and inclusive, and leaders more accountable . The public needs much better information. None
of this will necessarily mend the deep social rifts, but it
would reduce space for extremists and provocateurs.
Until there is a new constitution, Nepal is guided by the
2007 Interim Constitution and the 2006 Comprehensive
Peace Agreement (CPA), which provides for the state to
be restructured to address entrenched inequalities, often
rooted in discrimination based on identity. But federalism is
not only about devolution or quotas. For groups that feel
their culture, history or language have been sidelined by a
unitary state-sponsored Nepali identity, it is also about
dignity and recognition. A standoff has emerged between
upper class and dominant hill-origin upper-caste populations on the one hand, and ethnic communities often described as historically marginalised on the other.
These divisions map clearly onto party politics. The traditional parties are the Nepali Congress and the Communist
Party of Nepal (Unified Marxist-Leninist), commonly
known as UML, which emerged as the second and third
largest parties in the 2008 elections to the Constituent
Assembly. These parties, currently in the opposition, are
sceptical about acknowledging identity in a federal model. They have been encouraged by an upper-class, upper-
caste backlash against the new pro-federal and pro-identity
politics order. The two main forces in the ruling coalition,
the Maoist party and the Madhesi Morcha, a front of par
ties representing Madhesi populations ofthe southern
Tarai belt, were the largest and fourth largest in the assembly, respectively. They coalesced with a cross-party
caucus of assembly members from janajati groups (the
numerous ethnic groups outside the Hindu caste system
who claim distinct languages, cultures and sometimes historical homelands) into a powerful pro-federalism alliance, with connections to social movements. They say the
agenda should be set by the majority, namely themselves.
Public discussions have focused on whether "ethnic states"
should be established. Sceptics of federalism sometimes
define these as mono-ethnic entities where populations
other than the majority ethnicity would be unwelcome.
Yet discussions in the assembly made it clear that no group
would enjoy a majority in any state. Nepal's extraordinary
ethnic diversity simply does not allow this. Demands for
preferential political rights to be granted to the dominant
ethnic groups in each state were ceded two years ago. Madhesi, janajati and Maoist actors do, however, care about
how many states there will be, naming rights, and boundaries that give them a slight demographic and possibly
electoral edge. Madhesi parties also focus on inclusion in
state institutions.
The assembly ended because leaders of all parties, new and
old alike, made secretive, top-down decisions. They were
dismissive oftheir own members and never explained the
issues at stake to the public, relying instead on fear-mon-
gering and extreme rhetoric. Throughout the peace process,
decisions on the main points, whether the constitution or
the former Maoist army, have been hostage to bargains on
government formation, enmeshing power sharing with substantive issues.
The peace process has relied extensively on a tired idea of
consensus between the parties. Until the constitution was
completed, the main parties were to agree on all major
decisions to ensure broad buy-in. This sometimes prevented the worst case scenario, but it also devalued democratic
participation. Instead of discussions in the assembly on
real issues, senior leaders cobbled together inadequate or
unrealistic deals purportedly to save the peace process,
but often about their personal futures or getting a share of
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page ii
government. Deep disagreements between the parties were
papered over. Donor activity has sometimes unwittingly
supported this tendency.
As no single party won an absolute majority in the 2008
elections, the contingencies of unstable coalition politics
allowed the parties to throw government formation into
the fray with constitutional issues. The deep polarisation
over federalism meant that on 27 May 2012, any constitution could have elicited violent protests. The situation has
calmed, but triggers remain. There is no agreement on the
way forward and no minimum common understanding of
When the assembly ended, Nepal also lost its legislature.
The absence of an elected parliament, coupled with the
high trust deficit between the government and opposition
parties, bodes ill for stability. For all the parties, deciding
on how to resume constitution writing is inextricably linked
to government coalitions and electoral calculations. Indeed, the discussion between the parties since the assembly
ended has been dominated by questions of whether, when
and how the government will change. A broader constitutional crisis looms ifthe opposition leans on the largely
ceremonial president to challenge the government. The
political context is shifting; parties are trying out new
agendas and alliances and new actors are emerging. Divisions are rife within the parties - the Maoists have already
split - and contradictions run deep in the alliances.
Denying moderate identity-based claims makes the polarisation worse and risks stoking communal tensions, as
does dismissing the fears of groups that feel they will lose
out. Explaining the debate will clarify it, but resolve little.
Parties need to present a roadmap with broad buy-in before either going to elections or bringing back the assembly. Fortius, they can build on the work already done. Between themselves, they need guarantees on power sharing.
Elections now could help clarify the context, but they will
in effect be a referendum on federalism and risks of violence are real. For once, issues matter in Nepali politics.
Mainstream parties are best positioned to reflect the country's ethnic complexity, especially as the balance of political and social power is such that no single party will capture the votes of an entire group.
To address and reduce the social polarisation and
democratic deficit, redesign decision-making processes
and enforce transparency
To the Three Largest Parties, namely,
the Maoist party, the Nepali Congress and
the Communist Party of Nepal (UML),
as well as the Madhesi Morcha:
1. Make an early decision in consultation with smaller
parties on whether to hold elections to a new assembly and when or whether to revive the lapsed Constituent Assembly.
2. Recommit to the Comprehensive Peace Agreement
and acknowledge the changed political landscape by
including in discussions emerging, ignored or resurgent groups, such as Tharu, Dalit, Muslim and women's bodies, as well as upper-caste groups and pro-
Hindu monarchists.
3. Acknowledge that the legislative vacuum cannot persist without dangerous consequences and separate
government formation and functioning from constitution writing by:
a) agreeing on a full budget for the current fiscal
year beyond the current partial budget;
b) endorsing an unchangeable timetable for polls or
decisions on a constitution;
c) deciding on sequencing of government formation,
elections and compromises on federalism that involve all parties ceding some ground, perhaps by
designing an all-party government with a rotating
cabinet or prime ministership; and
d) committing to a code of conduct for protests and
government responses to them.
4. Reduce the risk of violence if new elections are held by:
a) signing a code of conduct committing to abjuring
hate speech and to participating in direct discussion rather than through innuendo in the media;
b) implementing, before campaigning starts, a public
information and consultation program on federalism staffed by former assembly members, academics and lawyers associated with the drafting process;
c) maintaining contact with each other, their representatives on the ground and local actors and avoiding
scheduling public party events that may clash with
those of others;
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page iii
5. Ensure better functioning of a revived or new assembly by planning for more plenary discussions; enforcing rules of procedures, timetables and strict penalties
for absentees, including expulsion; electing sub-committee chairs; and disallowing party whips.
6. Improve negotiations and decision-making by:
a) agreeing at an early date on the role ofthe report
ofthe State Restructuring Commission, and the
status of all previous agreements between governments and various protesting groups;
b) making negotiations public, even televised if necessary;
c) taking into consideration the new census data;
d) accepting technical and academic support where
it might be helpful; and
e) avoiding the trap of leaving decisions up to "expert panels" or commissions that will certainly be
politicised and possibly even less in touch with
the general public.
7. Initiate consultations for policy discussions on inclusion, including classification of groups, criteria for
quotas and the relationship between federalism and
8. Address discontent and factionalism within their ranks.
To the Nepali Congress and UML:
9. Contribute to the speedy resolution of the present
crisis by:
a) clarifying their bottom lines on federalism and inclusion;
b) communicating more democratically with party
organisation in the districts; and
c) protesting if need be, but allowing some ordinances
necessary for governance to go through.
To the Main Maoist party:
10. Minimise conflict with the new party by agreeing to
negotiate division of countrywide assets; keeping
open channels of communication with cadres in the
To the New Maoist party:
11. Clarify party positions on the current impasse and a
program sooner rather than later.
12. Agree to negotiate division of countrywide assets
with the original party.
To the Monarchist or Pro-Hindu Right:
13. Refrain from using a divisive fundamentalist religious
To the Government of Nepal:
14. Maintain trust and help create a conducive environment for decisions by:
a) maintaining constant, open and flexible communication with the opposition;
b) ensuring responses to protests are even-handed
and proportionate; and
c) focusing on governance, but remaining sensitive
to concerns about accountability in the absence of
a legislature.
To the President of Nepal:
15. Ensure that the office is responsive to the widest
range of interests and resist pressure to transcend his
ceremonial role to take strong positions against either
the government or the opposition.
To the Judiciary:
16. Refrain from involvement in the political process and
exercise judicial restraint.
To the Nepal Army:
17. Resist the urge to support any actor or pronounce on
the legitimacy of governments.
To India and China:
18. Resist pressure from interest groups and instead promote dialogue between all parties.
19. Give Nepali actors space to negotiate their own decisions on constitutional issues.
To UK, U.S. and European Union (EU)
Donors and the UN:
20. Work more transparently within the framework of
the CPA and the Peace and Development Strategy by:
a) not withholding the analysis of linkages between
ethnicity, access to social services and poverty
rates that informs programming;
b) addressing concerns that donors have preferred
outcomes incongruent with the CPA;
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012 Page iv
c) taking Nepali partners into confidence but suspending support if pressured to work against CPA
commitments and international charters; and
d) refusing support to negotiations or confidence-
building measures that are not transparent or are
driven primarily by a few leaders in the big parties.
Kathmandu/Brussels, 27 August 2012
Crisis Group
Asia Report N°233
27 August 2012
The end ofthe Constituent Assembly on 27 May 2012 focused attention on two critical issues. One was the destructive potential ofthe main parties' wilfulness and highhandedness. The other was the complexity ofthe challenge
Nepal has set itself with regard to federalism and inclusion. In theory, most say they want a fair and equitable society. In practice, the political, social and personal recali-
brations that must take place for that to happen are deeply
discomfiting to many.1
Federalism is seen as a way to simultaneously devolve power and acknowledge the histories and cultures of Nepal's
many ethnic groups. These groups say that the dominant
narrative in Nepal makes the historical experience of upper-caste hill elites the norm and ignores the structural
causes of inequality between social groups. In this debate,
"inclusion" means greater and more effective representation in state institutions of janajati, Madhesi, Dalit and
other groups who have been significantly under-represented or actively excluded.2 The Maoists, Madhesi parties
1 For previous Crisis Group reporting on the peace process,
constitution writing, federalism debates and the Maoist party,
see Crisis Group Asia Reports N°128, Nepal's Constitutional
Process, 26 February 2007; N° 132, Nepal'sMaoists: Purists or
Pragmatists, 18 May 2007; N°156, Nepal's New Political
Landscape, 3 July 2008; N°199, Nepal: Identity Politics and
Federalism, 13 January 2011; N°211, Nepal: From Two Armies
to One, 18 August 2011; and Crisis Group Asia Briefings N° 120,
Nepal's Fitful Peace Process, 7 April 2011 and N° 131, Nepal's
Peace Process: The Endgame Nears, 13 December 2011. Full
Nepali translations of all papers from 2007 onwards are available The Comprehensive Peace
Agreement is available at and the
Interim Constitution of Nepal, 2063 (2007) is available at:
2 For the purposes of this report, "janajati" refers to the umbrella term for a large number of ethnic groups, mostfromthe hills,
who are outside the Hindu caste system and claim distinct languages, cultures and, often, historical homelands. Since the 1990s,
this ethnic or "nationalities" definition has included a claim of
indigenousness. "Madhesi" refers to the umbrella term for a
population of caste Hindus residing in the Tarai region, who
speak plains languages and often have extensive economic, social and family ties across the border in northern India. "Tharu"
and newly influential ethnic actors in the mainstream parties and outside them are the strongest proponents of what
is sometimes called "identity-based federalism", or federalism which, with other policy measures, will address these
The Nepali Congress and UML, Nepal's traditional democratic parties, are sceptical at best about placing identity
at the centre of debates on federalism and inclusion. They
argue that doing so will be dangerously divisive to Nepali
society and that it will weaken the state. These parties and
other opponents of federalism tend to argue that poverty,
not identity should determine who counts as excluded.
They would prefer to see federalism as a primarily administrative arrangement related to devolution of power.
Political preferences and attitudes to federalism are not
determined solely by people's membership in demographic
groups. Yet, there is a clearly emerging dynamic in which
the Congress and UML are seen to represent elite and upper-
caste interests, and the other parties a more progressive
agenda. These labels are overly simplistic, but their easy
adoption is an expression of how deep differences in Nepali
society can go.
It is not yet clear how constitution writing will be restarted. The decision on how to go back to constitutional negotiations is inextricably linked to decisions on a change of
government. When the term ofthe Constituent Assembly
ended on 27 May, Nepal also lost its parliament, as the same
body performed both functions. The Maoist-Madhesi coalition continues as caretaker and the Congress and UML
lead the opposition. The November 2012 election date
Prime Minister Bhattarai announced has to be formally
cancelled, as there is no agreement between the parties
yet and the election commission needs more time to make
refers to the indigenous populations ofthe Tarai plains. Other
terms include "Dalits", or Hindus considered "untouchable" by
upper-caste groups of "Muslims", who can be of both plain and
hill origin, though they predominantly live in the Tarai. "Upper
caste" refers to members ofthe two highest castes hill- orpa-
hadi-origin Hindus, Brahmins and Chhetris. Similar upper-
caste groups are also part of Madhesi Hindu populations, but
unlike the hill upper-caste groups, they are not closely associated with the dominant culture of Nepal. For more on identity
politics, see Crisis Group Report, Nepal: Identity Politics and
Federalism, op. cit.
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 2
preparations and comply with regulations. The next chance
for elections is between March and May 2013. Some leaders say the assembly should be revived through a consensus
decision by the parties. They argue that agreement is possible on the constitution before any elections are held and
that the new statute can be issued by the revived assembly.
The next elections would then be for a new parliament.
The tussle is not only between actors and pro- or anti-
federalism alliances, however. There is also a deep divide
between the ruling coalition and opposition parties. The
ruling Maoist party and the Samyukta Loktantrik Madhesi Morcha (SLMM or Madhesi Morcha), a front of some
Madhesi parties, are allies in both government and for
federalism. Yet, some of their potential janajati allies are
in the Congress and UML. The splinter Maoist party and
another front of some Madhesi parties, the Brihat Madhesi Morcha (BMM or Broader Madhesi Morcha) are both
for federalism and present themselves as truer to the issue
than the ruling Maoists and Madhesi Morcha. However,
their priority is also unseating the present government,
which puts them on the same side of that fight as the
Congress and UML. There are similar contradictions even
within parties.
This paper surveys the options available to resume the
constitution-writing process. It first examines the trajectory of the federalism and inclusion debates in terms of
substance and procedure, and explains the contentious
issues as well as areas where the behaviour ofthe parties
and design flaws in the process were obstacles. This report then assesses the constraints and opportunities ofthe
election option as well as revival ofthe assembly. It outlines the challenges the parties face regardless of which
they choose, and identifies possible game-changers.
A companion report published simultaneously, Nepal's
Constitution (II): The Expanding Political Matrix,examines the changing landscape as established parties split,
new political forces emerge, and various actors attempt
alliances for or against federalism. Many are struggling to
find agendas or distinguish themselves from competitors.
These efforts are influencing the debate on federalism.
But the parties, their factions and individual leaders are
concerned as much with electoral calculations as with
ideology. The positions they will finally take will be driven
by more than only ideas. Personality clashes and factional
divides further complicate the motivations at work. Together, these two reports describe the interplay of issues,
political behaviours and the constantly shifting balance
between actors that will determine whether and when Nepal will get a constitution and what it will look like.
The policy recommendations in this report are in many
cases straightforward repetitions of basic guidelines for
negotiations and the rules ofthe Constituent Assembly.
Implementing them does not force any actor to accept par
ticular options, only to negotiate more clearly and inclusively. This is a relatively low-cost measure, except for
those whose primary aim is to spoil. The immediate priorities for the parties are evident: to negotiate a convincing
roadmap that will also be acceptable to various interest
groups and the public; and to be a credible, sensitive and
viable alternative to those who purvey dangerously simplistic and irreversibly polarising alternatives.
Research for this report was carried out primarily in Kathmandu between May and August 2012. Interviews were
conducted with a wide range of political actors at all levels, including senior leaders, activists and organisers, as
well as journalists and some members ofthe international
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 3
As has so often been the case, Nepal's politicians left the
tough issues until last. After years of delay, the Constituent Assembly only started discussing federalism during
its final months. Prior to that, constitutional negotiations
were linked to the future of Maoist combatants, who remained under their party's command until April 2012.3
Once the issue ofthe combatants had been resolved, discussion of federalism became inevitable. After four years
of functioning and four extensions ofthe assembly's term,
pressure from interest groups and the general public was
building on the parties to complete the constitution. All
actors, those for and against federalism, in parties, factions
and other groups, saw their final chance to influence the
future context. This could have meant increased flexibility; instead positions hardened. Earlier concessions were
withdrawn and new alliances were formed.
The assembly finally ended because each side felt further
concessions would render the new constitution meaningless and that the other side was more invested in the assembly and so would compromise at the last minute. "We
thought the Maoists would save the assembly at any cost",
said a senior UML negotiator, a sentiment echoed by some
in the Nepali Congress, too.4
A. Frustrated in Federalism
1.    The sticking points
Most Maoists and Madhesi and janajati groups put forward core considerations.5 They demand that state bound-
The constitutional negotiations began after a 10 April decision
handed command of Maoist combatants, weapons and cantonments to the Nepal Army. Phanindra Dahal, "Army takes charge
of PLA fighters, weapons", The Kathmandu Post, 11 April
2012; "Why the cantonments imploded", Republica, 11 April
2012. See Crisis Group Asia Report N°234, Nepal's Constitution
(II): The Expanding Political Matrix, 27 August 2012 for more.
4 Crisis Group interview, Kathmandu, May 2012.
5 For the purposes of this report, "Madhesi" refers to the umbrella term for a population of caste Hindus residing in the
Tarai who speak plains languages and often have extensive
economic, social and familial ties across the border in northern
India. "Janajati" refers to the umbrella term for a large number
of ethnic groups, most from the hills, who are outside the caste
Hindu system and claim distinct languages, cultures and often,
historical homelands. Since the 1990s, this ethnic or "nationalities" definition has included a claim of indigenousness. For more
on identity politics, see Crisis Group Report, Nepal: Identity
Politics and Federalism, op. cit. The Maoist party split in June
2012. This paper refers to the pre-split party as "the Maoists".
Forthe post-assembly context, it uses "the Maoists" to refer to
aries be demarcated so that marginalised groups together
gain a slight demographic, and possibly electoral, advantage
over upper-caste Brahmin and Chhetri groups. In many
present administrative units, the latter are dominant. Districts could also be divided between the new states. Speakers of some languages other than Nepali would be able to
use their mother tongues officially in their states, giving
Nepal's linguistic diversity the chance to develop in the
mainstream. For marginalised groups, federalism is also
about recognition and dignity. All these measures would
help modify the monolithic Hindu, hill upper-caste Nepali
identity codified by the monarchy in the mid-20th century.6
The assembly was the most representative body in Nepal's history, thanks to quotas for population groups and
proportional representation for parties.7 For identity-based
movements, such as Madhesis, and to a smaller extent,
the main party and "the new Maoist party" for the breakaway
6 After removing the ruling multiparty government and replacing it with direct royal rule in 1960, King Mahendra enforced a
narrow definition of Nepali national identity where the language,
history, customs and dress of hill-origin upper-castes were declared as those of all Nepalis. Members of ethnic and other minority groups who assimilated wholly had significantly more opportunities. This school of nationalism was notably anti-Indian
and fuels some of the anti-Indianism in contemporary Nepali
politics too.
7 Voters cast two ballots in the 2008 elections. One was for a
representative for their constituency and the other for a party of
their choice. 240 members were elected from the same number
of constituencies through First Past the Post (FPTP) contests,
where the candidate receiving the most votes in a single-member
constituency won. Almost 4,000 candidates contested the FPTP
races. 335 members were elected from a nationwide constituency through party list-based Proportional Representation (PR).
Each party list needed to have at least 34 candidates and there
were about 6,000 candidates for PR seats. This list and the parties' final selection for the assembly after the results were in
had to meet quotas for demographic groups based on the Election Act of 2007 and provisions in the Interim Constitution.
However, there were two caveats: the Election Act granted the
parties 10 per cent flexibility in filling these quotas, so they
could select a few less or a few more candidates for each category. The Election Act also waived all quotas except those for
women for PR lists that had 100 or less candidates. The lists
were not ranked and nominees could be chosen from anywhere
on the list. This meant that voters could not be sure which of
the many candidates on their party's list would be sent to the
Constituent Assembly. Nils A. Butenschon and Kare Vollan,
"Electoral Quotas and the Challenges of Democratic Transition
in Conflict-Ridden Societies", The Norwegian Resource Bank
for Democracy and Human Rights, September 2011. See also
Crisis Group Asia Report N° 149, Nepal's Election and Beyond,
2 April 2008, Section III.A.
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 4
Dalits8 and Muslims, increased political participation, power
and representation in state institutions are an important
way to achieve recognition. Ethnic groups have stepped
down from their initial maximalist demands. They had
initially lobbied for political preferential or prime rights,
including through reserving the position of state chief minister for members ofthe dominant groups for a fixed period.9 This demand was barely mentioned after early 2010,
when attention shifted to state names.
Madhesi groups had argued for a single Madhes state
stretching across the Tarai in southern Nepal, saying a large
state would be stronger in relation to the centre.10 Now,
they agree to two states and show flexibility on some contested parts ofthe region claimed by hill-origin groups.
Tharu groups,11 after which the second Tarai state would
be named, are considered the Tarai's indigenous population and are stronger in the west.
Sceptics in the Congress, UML and some other parties
argue that the federal structure these groups want will not
be economically viable and will threaten national integrity. Hill states with no outlet to the southern border would
be overly reliant on the Madhesi states. To access government services, citizens would have to travel to new state
capitals, possibly inconveniently located, rather than district headquarters they are used to. Allowing the use of
other languages would put Nepali speakers at a disadvantage. The Congress argues that the current districts should
be used to build the new states, which ought to resemble
the current development regions, organised along a north-
south axis. Each development region includes river basins
and slabs ofthe high Himalayas, middle hills and southern plains.12
The Congress and UML argue that acknowledging ethnic
identity will set Nepal on the path of rupture. For example, ethnic references in state names would provoke those
groups not mentioned. All of Nepal's scores of ethnicities
could demand their own states.13 The Congress is particularly hostile to the idea of strong Madhesi-dominated states,
claiming these could threaten national unity and even secede. It argues that hill- or pahadi -origin groups, whose
presence is relatively important in some pockets ofthe
Tarai, could face discrimination. There is a deep-seated
perception that Madhesi leaders are more sympathetic to
Indian interests than Nepali. Madhesi populations are bound
by close cultural, familial and economic ties to groups across
the border in India, which is another source of anxiety to
many hill-origin leaders. Still others argue that "ethnic
federalism" will not lead to "empowerment".14
Some concerns have merit. For example, Nepal has often
been crippled by shutdowns ofthe highway dividing the
north and the south, due to protests, so the anxiety about
access has some reasonable grounds.15 Other concerns
appear to be from force of habit. Federalism could indeed
yield benefits, such as new roads across the hills to new
state capitals or decentralisation through new sub-regional
administrative centres. The Nepali language is increasingly
widespread and unlikely to disappear, given the opportunities it provides for speakers and its overwhelming dominance in government, administration, education and commerce. In very few parts of Nepal and almost none ofthe
proposed states would any single group be in the majority;
rather, there would be "largest minorities". Despite all this,
the arguments ofthe traditional parties give pro-federalists
ammunition to say that the Congress and UML are against
all change. "The Maoists made many compromises, at least
the Congress and UML could have reciprocated. Instead,
they obstructed", said a Madhesi leader from Dhanusha.16
"Dalits", among the most underprivileged and discriminated
against groups in Nepal, are Hindus formerly considered "untouchable" by upper-caste groups.
9 For more on the preferential rights debate and how it slipped
out ofthe mainstream, see Crisis Group Report, Nepal: Identity
Politics and Federalism, op. cit., Section IV.E.
10 For long, the Madhes movement's slogan was "One Madhes,
One State". "Madhes" is in this case used synonymously with
"Tarai", as a way for Madhesi activists to lay claim to the entire
1: "Tharu" refers to the indigenous populations ofthe Tarai plains.
12 In April 2012, the Congress proposed a map for state restructuring with seven states based on "identity and capability". The
model included two Tarai-only states and four ofthe five hill-
mountain states had access to the southern border. Thus, the
Tarai was divided between six states. The model also kept all
75 districts intact and most states were named after rivers, as most
of the present administrative zones are. Maoist and Madhesi
leaders immediately criticised this proposal. Kamal Dev Bhattarai, "Cong comes up with 7-state model", The Kathmandu
Post, 28 April 2012.
According to the 2001 census there were 103 ethnicities in
Nepal. "Rastriya Janaganana, 2058 (Jaat/Jaatiko Janasankhya)",
Central Bureau of Statistics, 2008.
14 For example, two former foreign secretaries argued that in a
federal structure, increased political space for minorities would
not be sufficient for empowerment, which had to be consolidated with economically viable states. "Put it to a vote", Republica, 16 June 2012. Proponents of this argument also generally
oppose quotas for most groups and say that economic growth is
the best way to reduce inequalities. See "Chaar pradesh nai
upayukta", Kantipur, 20 January 2012.
15 For example, a thirteen-day strike in 2009 by Tharu agitators
along the east-west highway led to majorprice rises inKathman-
du and other hill centres. "Strike in the Tarai sends vegetable
prices soaring",, 28 April 2009. Madhesi mobilisation has also often shut down the highway. Smaller parts are
often blocked, including by loyal groups demanding compensation for deaths on the road.
16 Crisis Group telephone interview, Madhesi leader, Dhanusha,
May 2012.
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Negotiations in the assembly and later among senior party
leaders moderated maximalist positions and led all groups
and parties to acknowledge Nepal's complex ethnic mosaic. States would be formed on the basis of "identity" and
"capability", namely their ability to be viable economically,
though it was not clarified how this would be judged.17
Towards the end ofthe assembly, janajati leaders agreed
that the ethnic elements in state names could be toned
down by addition of geographic or cultural references.18
Madhesi actors were open, albeit cautiously, to negotiations on competing claims over parts ofthe Tarai. Tharu
groups would negotiate the disputed parts in their area.19
In the lead-up to 27 May, Madhesis, Tharus and janajatis
also agreed not to interfere with each other's demands or
2.    Bogeymen
Despite these many compromises and the clear agreement
that all Nepalis would have the same rights to live, work,
travel and own property anywhere, parties and activists
on all sides continued to talk about "ethnic federalism",
feeding the public phantom fears, misrepresentation and
hate speech.20 Congress and UML sympathisers raised the
In April 2012, the parties agreed to specify five vectors of
"identity": geography, ethnicity, population, language and culture. "Pahichanka panch adharma sajha antarvastu khojne sa-
hamati", Annapurna Post, 20 April 2012.
18 For example, the hill state in the far east that pro-federalists had
conceived as the "Limbuwan" state, based on a historical polity,
would be named Limbuwan-Koshi, after the Koshi River.
19 In the farwest, there is a strong, largely upper-caste hill movement claiming some parts ofthe Tarai. Many hill-origin families in this area live, do business and own property in both the
hills and plains. Some senior national leaders hail from the hills
but their voters reside in the plains. Claims for other parts of
the Tarai, such as its eastern districts of Jhapa, Morang and
Sunsari are more driven by national leaders, who fear their constituencies will be split. They are able to play on the fears of
hill-origin people who live in the Tarai, including janajatis, to
be displaced as some pahadi families were following the Madhes
movement. (Many of these families are reportedly returning, as
tensions have been low for some time now. "Madhesma mel-
milap", Kantipur, 14 April 2012.) A recent UN report suggests
that both Madhesi and hill populations are migrating to urban
areas in the Tarai, then to areas along the highway and to Kathmandu, if they can afford it. "Migration patterns in the Central
Tarai: Has an equilibrium been disrupted?", Field Bulletin, UN
Resident and Humanitarian Coordinator's Office, July 2012.
There is also a drive to keep Chitwan district, in the middle of
the Tarai, intact. This reportedly has the support of Maoist
Chairman Pushpa Kamal Dahal "Prachanda" himself, as he is
from Chitwan. A fourth passage to the Indian border between
the hills and plains has been suggested through Nawalparasi
district in the western Tarai.
20 Academic Krishna Hachhethu argues that while the proposals
of the assembly's Committee on State Restructuring and the
spectre of "new minorities" (that is, hill upper castes) being deprived of rights in mono-ethnic states. Sceptics of
federalism play on genuine fears, but they invoke frightening images of communities being expelled from their
homes.21 Ethnic leaders and activists could have taken the
lead in clarifying the debates about federalism and inclusion to address these concerns. They did not do so, possibly to leverage their position. This failure has been damaging, particularly when taken with the inflammatory, extremely provocative language used by some in their ranks.
The perception that any mention of identity-related issues
is dangerously polarising has only been reinforced.22
The truth barely matters when communal tensions are rife
and insinuation and rumour prevail over calm dialogue.
There are many ways of being marginalised in Nepal, including through poverty. Claiming a demographic advantage will not necessarily unite all ethnic groups either, as
hierarchies make for complex relations between them. Individual identities are themselves multidimensional and
social boundaries between groups are often more blurred
than fixed definitions assume. All this needs to be factored
in while making policy decisions and can be used to moderate the debate. Yet these arguments tend to be raised largely to dismiss demands for greater inclusion of historically
marginalised groups or for more respectful recognition of
their identities and history, rather than to start a dialogue.
As the discussion has spilled over from the assembly into
society at large, local communities and groups have framed
their demands in a variety of ways, including through appeals to different kinds of identity, including region and
caste. The unexpected alliance of Madhesis, Maoists and
janajatis has also taken the edge off the "ethnicity" claim,
given how diverse it is. This coalition does, however, shift
the focus squarely onto the historically dominant groups,
putting the onus on them to compromise.
Identity claims have historically been ignored. For example,
during the drafting ofthe 1990 constitution, suggestions
were solicited from the public. The drafting commission's
Distribution of State Power and ofthe State Restructuring Commission appear to emphasise ethnicity, they are "non-ethnic".
This argument implies that it is the present state that privileges
a dominant, mono-ethnic culture, and not the states proposed in
"identity-based federalism" which recognises Nepal's diversity.
Krishna Hachhethu, "Prastavit sanghiyata: Rupmajatiya, saar-
ma gairjatiya", Nepal Samacharpatra, 9 June 2012.
21 There have been alarming warnings that identity-based federalism will lead to ethnic cleansing of Chhetris and Brahmins.
Akhanda Bhandari, "Mero rajya kaha parcha?", Kantipur, 12
February 2012; "Jatiyarajnitiko raap", NayaPatrika, 5 June 2011.
22 In January 2012, ethnic leaders warned of "bloodshed" ifthe
new constitution did not address indigenous demands. "Adiva-
siko pakshyama samvidhan nabaney mktapat", Annapurna Post,
22 January 2012.
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chairman, Justice Bishwanath Upadhyaya, "expressed dismay overthe fact that the vast majority of suggestions ...
concerned linguistic, religious, ethnic, and regional issues",
all of which were, according to him, "peripheral" issues.
Many pro-federalism activists feel the same is happening
3.    Missing all the signs
Federalism and inclusion are distinct issues, but closely
connected. State restructuring was proposed specifically
to make the Nepali state more representative and inclusive. The debate has developed narrowly and procedural
and substantive problems have persisted.
Early discussions: bringing up federalism
The first phase of this discussion predates the Constituent
Assembly. In response to the 2007 Madhes Andolan or
movement, which demanded recognition of Madhesi mar-
ginalisation and increased inclusion of Madhesis in state
institutions, the Interim Constitution was amended to include federalism. The same year, in response to an agitation by the influential network of janajati NGOs, the Nepal
Federation of Indigenous Nationalities (NEFPN), and other
janajati groups, the interim government signed a deal which
guaranteed at least one representative in the assembly from
each officially recognised janajati community, greater
inclusion of janajati in state institutions and committed to
establishing a state restructuring commission.24
These agreements only occurred after the government had
been pushed against the wall for trying to ignore earlier
commitments in the CPA. The deals were made in haste
and with little consultation, under strain and with considerable hostility. It is no surprise that many mainstream
23 Michael Hutt, "Drafting the Nepal Constitution, l990",Asian
Survey, vol. 31, no. 11(1991), pp. 1020-1039. In a striking echo
of the current debate, Hutt writes: "Rather than attempting to
accommodate these grievances, the commission and the interim
government simply perceived them as a threat to national unity,
and virtually dismissed them out of hand. Thus, Justice Upadhyaya said it was 'unfortunate' that most suggestions had been
about 'peripheral' issues, and he called upon all political parties
to educate the people on basic constitutional subjects".
24 The Fourth Amendment ofthe Interim Constitution in May
2008 came about after two waves of protests in the Tarai. The
first was a 21-day long movement in which at least 24 people
died. The second was a year later in January-February 2008 where
six protesters were killed. The state restructuring commission,
as envisioned in the deal with NEFIN, would "present recommendations to the Constituent Assembly regarding a federal
state structure based on ethnicity, language, geographic region,
economic indicators and cultural distinctiveness while keeping
national unity, integrity and sovereignty of Nepal at the forefront". "Agreement between the Government and Janajatis", 7
August 2007.
actors have continually tried to back away from them, including the Congress and UML, which were leading members of the interim government. This cycle of promises
made and broken, aggressive protests and sullen capitulation with even more promises continues uninterrupted.
The Constituent Assembly's limited input
The second phase is the work done by the Constituent
Assembly's committee on state restructuring and distribution of state power that completed its report in January
2010. The majority in the committee voted for a fourteen-
state model based on "identity and capability" of states to
be viable, with names and boundaries along ethnic lines.
Preferential political rights through temporary reservations of select political offices for majority groups in each
state were also proposed.25 UML janajati representatives
voted against their official party line, which allowed the
proposal to pass with a simple majority in the committee.
A Congress leader presented a dissenting minority opinion
that suggested a six-state, north-south federal model similar to today's development regions, and this became the
reference point forthe party. In both proposals, states would
have limited power compared to the centre.
A plenary discussion ofthe proposals was attempted, but
this led to shouting and disruption of assembly proceedings by members who felt they were being ignored. The
report was kicked to the constitutional committee, which
simply added the federalism proposals to a growing list of
"contentious issues". Although assembly regulations allowed for a vote on issues when the committees could not
agree, senior leaders were asked to reach consensus on
them, which they often did informally and away from the
assembly. An unwillingness to allow parliamentarians to
debate and resolve the difficult questions that they had
been elected to address - and their fatalistic acceptance at
being sidelined - have plagued the entire peace process.
The fourteen-state model was a longstanding Maoist proposal.
States were named after ethnic groups that claimed close historical ties to the territory. Some, like the proposed Limbuwan state
in the east and Newa state in Kathmandu Valley, were recognisable as historically informed. Others were less so, such as
the Gurung-majority Tamuwan in the western hills. Boundaries
were such that formerly minority groups would have a demographic edge over hill upper-caste groups in many states. This
count included all ethnic groups in the proposed states, not only
titular or dominant groups. Madhesi parties agreed to two
Madhes states, instead of one. Preferential rights meant that the
position of governor would be reserved for candidates from the
titular ethnic group for two terms, or the first ten years ofthe new
dispensation. "Report on Concept Paper and Preliminary Draft,
2066", Assembly Committee on State Restructuring and Devolution of State Power, January 2010. For more on the assembly's
various thematic committee reports, see Crisis Group Report,
Nepal: Identity Politics and Federalism, op. cit., Section IV.
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Plenary discussions could have indicated the limits of compromise or even outlined practical, creative and broadly
acceptable compromises.
The UML clearly had not thought federalism a serious
matter and had taken its janajati members for granted. It
sent ethnic nominees to the state restructuring committee,
assuming that this was "their issue" rather than a national
one, and that they would be the docile, undemanding minority. This was not the case, and it is still not. In fact,
UML ethnic leaders are now upset with their party's leadership. "My party was ultimately the biggest opponent of
janajati demands", said one.26
The State Restructuring Commission:
yet another failed step
In November 2011, the parties sceptical of federalism, the
Congress and UML, urged the formation ofthe constitutionally mandated State Restructuring Commission. They
were earlier against it as a way of opposing federalism in
general. At this point, some in these two parties thought
the commission could comprise technocrats or experts who,
they were convinced, would counter proponents of identity-
based federalism. The parties ended up dividing the positions on the commission among themselves. Some nominees were indeed experts or academics, but they also had
party sympathies and did not all adopt a unique position
on the role of identity in federalism; some argued it was
workable, others that it would harm national integrity.27
The commission proposed ten states, with similar characteristics to those suggested by the parliamentary committee, limited preferential rights and a "non-territorial" state
for the highly marginalised Dalit communities.28
This bickering over commissions, committees and the
agreements has repeatedly taken up the parties' time and
attention. Yet, the status oftheir work is usually unclear.
For example, the State Restructuring Commission's report was called "reference material" when it was tabled in
the assembly in March 2012.29 In any case, these bodies
have also become sideshows or distractions, as decisionmaking has been concentrated in the hands of a few leaders
who are usually asked to find consensus. "Senior leaders
never bothered with the [assembly's] thematic committee ' s report, they were too fixated on power politics", said
a constitutional expert.30
The first report on federalism had the imprimatur ofthe
assembly, even if it had not been discussed. The second
was written by a constitutionally mandated body. But both
were completely ignored in the final weeks ofthe assembly, when the leaders tried to adopt an entirely new deal.
Such relentless disregard for rules and commitments will
continue if no new safeguards are put into place.
Institutional representation: a stumbling block
In January and February 2012, bureaucrats and the government tussled over an inclusion bill that increased reservations for marginalised communities in government
services from 45 to 48 per cent.31 The cabinet bills committee reportedly held the bill up for weeks. One sticking
point was that Brahmins, Chhetris and some smaller associated castes, which total just over 30 per cent ofthe population, were classified as "others". They objected to the
perceived insult in being treated dismissively; and to the
fact that other groups had specific quotas to their names
while positions left over after those quotas were not spe-
Crisis Group phone interview, Kathmandu, May 2012.
27 The CPA also envisions such a commission. Ethnic activists
were promised that it would be formed "soon", in the monsoon
of 2007, but it was ignored in favour of the assembly's state
restructuring committee. For more on the commission an& janajati and Madhesi concerns about overrides of assembly suggestions, see Crisis Group Briefing, Nepal's Peace Process:
The Endgame Nears, op. cit., Section IV. In the commission
too, Maoist and Madhesi nominees were on one side, and the
UML's janajati nominee joined them at the end to push through
an identity-based model.
28 The Congress continued to propose its north-south states that
would maintain the demographic balance ofthe current districts,
where hill upper castes are often the largest group. Political
preferential rights were included in the commission's report but
not pertaining to the states' chief ministers positions. They
were, instead, for autonomous and special areas within states
that were going to be granted to very small local ethnic groups.
"How majority, minority reports differ", The Kathmandu Post,
2 February 2012; "SRC submits report.", Republica, 1 February
"SRC report only for reference: Lawmakers", Republica, 24
March 2012. The Interim Constitution says that the commission's report is supposed to guide the work ofthe assembly.
30 Purna Man Shakya, "Review ofthe Four Year Period of CA
and the Preview of the Declared 'CA Election'", Dr Harka
Gurung Lecture Series, Kathmandu, 1 June 2012.
31 Quotas were first introduced in August 2007 following the
deal with NEFIN, when the civil service was directed to allot
45 per cent of all vacancies for historically marginalised groups.
Many laws, such as those governing recruitment into the civil
service, and admissions and promotions in universities were
amended to reflect this. There was, however, no overarching
law about quotas, an omission the 2012 bill was supposed to
address. The bill also specified sub-quotas for members of
marginalised communities within the quota for women, and reiterated quotas for marginalised groups in the security forces.
This bill was seen as a push by the Madhesi front in government to once again highlight the need to include Madhesis in
the army, in particular. "Bill on inclusion has Madhesi bias",
The Himalayan Times, 15 February 2012. For more on this
fraught subject, see Crisis Group Briefing, Nepal's Peace Process: The Endgame Nears, op. cit., Section V.
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cifically earmarked for upper castes.32 Where quotas have
been implemented, such as higher education and public
service, there are bitter debates about recruitment, promotions and admissions patterns, including complaints from
marginalised groups.33
This episode demonstrates the power of state institutions.
Nepal's bureaucracy, like its judiciary, is not entirely representative ofthe populations it serves, is often seen as
close to the traditional parties, and wields enormous influence.34 Institutional loyalties remain with the old order,
not the new. This dynamic of contestation and resistance
from state institutions is likely to continue.35 A member
ofthe Madhesi Morcha, the front of five Madhesi parties
in government, described it thus: "As long as the formal
peace process is on, the judiciary poses the greatest potential obstacles [by ruling conservatively on peace process issues such as the term ofthe Constituent Assembly].
"Rastriya Janaganana, 2058 (Jaat/Jaatiko Janasankhya)", op.
cit. "Inclusion bill mired in stiff opposition by secretaries", Republica, 6 January 2012; "Brahmin, Chhetri listed as 'others'",
The Kathmandu Post, 6 January 2012. Crisis Group's attempts
to understand how government servants had the authority to stop
a bill failed, when bureaucrats said that cabinet rules of procedure were classified. Crisis Group telephone interview, Kathmandu, January 2012. In a democratic dispensation, it is difficult to imagine both that civil servants can stop law-making and
that regulations governing the functioning of cabinet or the legislature are not transparent.
33 The complaints about quotas are legion and similar in most
contexts. Most often heard in Nepal from upper-caste speakers
is that there are poor upper-caste people too, just as there are rich
janajatis and even Dalits. Marginalised groups complain that
their best candidates are forced into reserved quotas, rather than
being allowed to compete in the open category. They argue that
the quotas should only be for candidates who cannot meet the
standards for open competition. The inference is that slotting all
candidates from minority groups into quotas, rather than allowing some to compete, in effect "reserves" the open category -
currently 55 per cent - for upper-caste candidates.
34 In2009,83.93 per cent ofNepal's bureaucracy was from upper-caste hill-based Hindu communities - mainly Brahmins and
Chhetris. The combined population share of these groups was
just under 31 per cent of the total population in the 2001 census. In comparison, Madhesis comprised only 8.93 per cent of
the bureaucracy (while they are about 40 per cent ofthe population) and Dalits were not represented in any numerically significant way, although they make up almost 13 per cent ofthe
population. Mahendra Lawoti, "Ethnic Politics and the Building
of an Inclusive State" in Nepal in Transition: From People's
War to Fragile Peace (New York, 2012), p. 143. All population
figures are from "Rastriya Janaganana, 2058 (Jaat/Jaatiko Janasankhya)", op. cit. and "Dalits and Labour in Nepal: Discrimination and Forced Labour", International Labour Organization,
35 Crisis Group interview, Kathmandu, January 2012.
Once the new constitution is in place, it will be the bureaucracy hindering implementation".36
One ofthe greatest policy challenges will be to devise inclusion strategies that are targeted and sensitive to the
broad range of experience within groups, rather than just
crudely proportionate. Increasing the numbers of members
of marginalised groups in various institutions is important,
but numbers alone do not guarantee appropriate representation or benefit to the community. There will also have
to be sunset clauses on some quotas, as not all may need
to be permanent. Assembly members, including from pro-
inclusion parties, have barely discussed the relationship
between affirmative action or quotas and federalism.37
4.    The final weeks of the assembly
Discussions on federalism between the top leaders began
in earnest only in March and intensified in April 2012. In
mid-April, the Maoist party formally handed control of
its former fighters, their weapons and cantonments to the
Nepal Army. This addressed a longstanding Congress demand. The Maoists and Congress had also renewed discussions about a change of government to allow the Congress
to return to power.
There were whispers about leaving federalism for later,
with only an in-principle commitment in the new constitution. But Madhesi, janajati and Tharu groups opposed
this, arguing there could be "no constitution without federalism and no federalism without identity".38 They also
rejected the idea of constitution-by-commission or anything less than the Constituent Assembly.39 The dissident
faction ofthe Maoist party would also have split from the
party immediately if any of these suggestions had been
pushed through. (The split occurred soon after the assembly ended.) Mid-level leaders from all pro-federalism parties
had also cautioned their leaders that they would respond
negatively to such decisions.
Crisis Group interview, member of the Madhesi Morcha,
Kathmandu, January 2012.
37 A Congress assembly member said, "though there need to be
constitutional principles for this, we will discuss them once we
have a new constitution and are writing laws". Crisis Group interviews, Congress and Madhesi Morcha assembly members,
Kathmandu, January-February 2012.
38 Crisis Group interview, Madhesi negotiator, journalist, Kathmandu, December 2011.
39 Top political leaders had discussed finalising a draft constitution without decisive clauses on federalism as early as March.
The possibility of state restructuring decisions being postponed
beyond the term of the assembly was also enough to bring
Madhesi and Tharu leaders - often hostile towards each other
in the past - together. "Morcha calls for statute with federalism,
identity", The Kathmandu Post, 1 April 2012.
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These discussions occurred in the context of a November
2011 Supreme Court ruling that another extension ofthe
assembly would be illegal, directing the assembly to finish drafting the constitution by the end of its term, on 27
May. If it could not, the parties were to use the referendum provision as needed to resolve difficult questions,
conduct new elections to a new Constituent Assembly, or
take other unspecified necessary measures. Each option
would require some sort of constitutional amendment or
voting, but this never happened. Some actors see this and
the court's numerous rulings on peace process issues as
judicial overreach. They argue that most of these issues
are political and therefore out ofthe court's jurisdiction.40
Public pressure was mounting. Some newspapers positioned themselves against extending the assembly, even
as it appeared increasingly clear in May that there would
be no constitution. They argued that this would "force"
the politicians to reach consensus on federalism, but this
urging instead encouraged parties to take uncompromising positions.41
In late April, the Maoists, Congress, UML and Madhesi
Morcha reached an informal agreement. This did not address the demands of any single group entirely, but was
put together from earlier proposals and would have been
palatable to most. The number of states would be reduced,
as per the Congress's demand, to just six to eight states,
and there would be no more than two in the Tarai. State
names would refer to more than one ethnicity and hill
states would have direct access to the border with India.42
In early May, the parties signed a formal agreement. The
Congress and UML would join the government and the
parties would resolve all constitutional issues. Prime Minister Bhattarai would step down and a Congress nominee
would lead an all-party government that would promul-
Crisis Group interviews, constitutional lawyers, March and
May 2012. Thejudiciary is known to be unhappy about some
provisions proposed for inclusion in the new constitution including that for a constitutional court. For example, see Sundar
Khanal, "Judges, top leaders meet to iron out differences", Republica, 28 March2012. Formore on tensions between thejudiciary and politicians, particularly Maoists, see Crisis Group
Briefing, Nepal's Peace Process: The Endgame Nears, op. cit.,
p. 14. In December 2011, the Supreme Court also disallowed the
recruiting of 3,000 Madhesis into the Nepal Army, a key issue
for the Madhesi parties in government. The Supreme Court
eventually reversed its decision in April 2012. "SC quashes
writ on Madhesis' hiring", The Kathmandu Post, 13 April2012.
41 Many of these same newspapers now push for a revival of
the assembly, rather than elections to a new one.
42 Crisis Group interview, senior negotiator, Kathmandu, June
gate the new constitution before 27 May and hold the next
general election.43
It seemed a realistic goal forthe parties to prepare a near-
complete draft by 27 May. This would either allow some
sort of constitution to be passed, or would be enough progress to convince the Supreme Court to allow the assembly to be extended by another few weeks or even months.
On 15 May, the parties came up with an agreement that
bore no resemblance to any proposal floated before. The
federal set-up would have eleven states whose names and
boundaries would be decided later by a commission. The
Tarai would be divided between five states. Parts ofthe
far-western plains districts claimed by the Tharu community would be allotted to a hill state. The deal did not address
government formation or the prime minister's resignation,
which are perennial concerns ofthe opposition.44
The agreement might have been acceptable to Maoist and
Madhesi Morcha leaders, but by this time, the issue was
out oftheir control in the assembly and had spread to the
streets. Crossing party lines, 320 Maoist, Madhesi and
janajati assembly members immediately signed amotion
objecting to the deal. "The deal was an attempt by top
leaders to sabotage federalism", a UML janajati leader
said.45 This strong rejection ofthe agreement crystallised
the broad "pro-federalism" alliance between the Maoists,
Madhesis and janajatis.46 For some months, various activists
for identity issues and movements, such as the Limbuwan
groups,47 NEFIN, and Tharu groups had been discussing in-
43 This agreement, reached on 3 May, built on an informal deal in
2011 to assuage the Congress's fears about not having a turn in
government before the next election. See Crisis Group Briefing,
Nepal's Peace Process: The Endgame Nears, op. cit., Section
VLB; Kamal Dev Bhattarai, "Parties agree on unity govt under
Bhattarai", The Kathmandu Post, 3 May 2012; and Crisis Group
interviews, Kathmandu, April-June 2012. On the March developments, see "Turning Point", The Kathmandu Post, 28 March
2012. On the handover of the former combatants, see Sectionll.
The unity government including the Congress lasted only seventeen days. Having agreed to extend the assembly, the Congress
changed its mind and withdrew after the bill to do so was tabled.
"NC quits govt after 17 days",, 24 May 2012.
44 Phanindra Dahal and Kamal Dev Bhattarai, "Finally, deal on
11 states, mixed governance model", The Kathmandu Post, 16
May 2012.
45 Crisis Group interview, UML janajati leader, Kathmandu,
June 2012.
46 "Finally, deal on 11 states, mixed governance model", op. cit.
"Dahal seeks revision to deal on 11 states", The Kathmandu
Post, 20 May 2012; "PM says will review 11-state deal", The
Kathmandu Post, 19 May 2012.
47 Limbuwan groups, active in the eastern hills of Nepal, demand a state named after the historic "Limbuwan" homeland of
the Limbu ethnic group. These groups also pushed assertively
for preferential rights and the right to self-determination when
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formal alliances. They supported the loose Madhesi-Maoist-
janajati alliance at the national level.
The 15 May agreement had not been discussed in the assembly and was viewed as lacking both moral legitimacy
and constitutional sanction. Once again, negotiations were
handled privately by senior leaders. They did not even
represent all the positions within their own parties and ignored members who might have been more representative
or who had worked seriously on these issues in the assembly. They also did not take seriously the bottom lines of
various groups.
This agreement came in the context of a growing backlash against federalism by upper-caste and upper-class
groups. Madhesi, janajati, Tharu and other identity-based
groups, already restive and suspicious, reacted both to
this new assertiveness of upper-caste groups perceived to
be against federalism and to agreement between the parties
which they said was an attempt to "postpone federalism"
and "dismiss the question of identity".48 Sporadic instances
of communally-tinged violence across the country threatened to spill over.
When the 15 May agreement fell apart, it was clear that
the assembly desperately needed more time. On 22 May,
the parties tabled a bill for one last three-month extension. Two days later, the Supreme Court ruled on a writ
challenging this and upheld its November 2011 position
that the constituent body could no longer be extended. It
further charged the prime minister and deputy prime minister with contempt and ordered them to appear personally
to explain themselves.49
As had happened repeatedly earlier, government formation
and the parties' immediate access to power was a constant
factor in both substantive discussions and in negotiations
the movement was at its most radical in 2009 and 2010. Authority in the Limbuwan movement is fragmented between many
smaller groups, but the movement demonstrated a wide-ranging
set of tactics to pushfor its demands. These included forming a
militant youth group, installing signboards welcoming visitors
to "Limbuwan", and collecting "taxes" on commercial goods
passing through territory the movement claimed. For more, see
Crisis Group Report, Nepal: Identity Politics and Federalism,
op. cit, Section III.CI.
48 Crisis Group interview, UML janajati leader, Kathmandu,
June 2012. "Morcha, Janajatis slam states 'sans identity'", The
Kathmandu Post, 16 May 2012; "Broader Madhesi Front all set
to protest 11-state model", The Kathmandu Post, 18 May 2012.
Some ethnic leaders also argued that all eleven states proposed
in the 15 May agreement would have been dominated by upper-
caste groups.
49 This is extremely unusual in Nepal, where laxity is often the
order of the day. If found guilty, a contempt charge carries a
jail sentence of up to one year and/or a fine of up to Rs. 10,000
(approximately $110). The case now appears to be dormant.
about extending the assembly. Even as the parties were
trying to discuss federalism, some leaders in the Congress
and the dissident Maoist faction led by Vice Chairman
Mohan Baidya were also gathering support to depose Prime
Minister Baburam Bhattarai. Much ofthe UML's establishment joined them, along with a small Madhesi front in
opposition, called the Brihat Madhesi Morcha or Broader
Madhesi Morcha. This influenced calculations on all sides.50
5.    The mood outside Kathmandu
Mobilisation had been increasing outside the assembly
and Kathmandu in the weeks leading up to the failed mid-
May 2012 deal. As federalism looked inevitable, upper-
caste groups and the urban elite, who feared reduced influence and opportunities in the restructured state, saw
their last chance to contain the changes or gain concessions. Chhetri groups mobilised particularly in the central-western hills, and other upper-caste groups organised
popular protests in the far west in April and May.51 Tharu
groups responded to the latter with an agitation oftheir own,
prompting clashes between the two sides. The 15 May deal
confirmed the worst fears of pro-federalism forces and
NEFIN enforced a tight three-day national shutdown in response. Both sides occasionally resorted to violence and security forces sometimes used force to disperse crowds. Various Madhesi groups shut down parts ofthe Tarai for weeks
and Limbuwan groups also shut down parts ofthe east.
The various movements also had the tacit or explicit support of party factions or leaders, regardless oftheir parties'
official positions on federalism. Many national and mid-
level leaders are thinking about a future in state politics and
are therefore becoming increasingly concerned with local
or regional issues.
When clashes or other violence occurred, it was because
competing protesters had crossed paths, one side felt threatened by the other, inflammatory speech or rumours had
spread, or the police response had been seen as unfair.52
NEFIN and other critics point to biased media coverage
of many pro-federalism protests in comparison to cover-
Crisis Group interviews, senior Congress negotiators, Maoist
members, opposition Madhesi leaders, Kathmandu, June 2012.
For more on the rivalries and factionalism in the Congress, see
Section II.B. 3 and Crisis Group Briefings, Nepal's Peace Process: The Endgame Nears, op. cit., p. 11 and Nepal's Fitful
Peace Process, op. cit., p. 12.
51 For more on the far-west movement and Tharu politics, see
Crisis Group Report, Nepal's Constitution (II), op. cit., Sections
IV.B and C.
52 For example, Tharu groups and some human rights defenders
alleged that the police response was biased in the mid and far
west. "THRD call for urgent action to stop communal violence
in Western Tarai", Tarai Human Rights Defenders Alliance, 9
May 2012.
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age ofthe "success" ofthe upper-caste movement in the
far west, for example. Neither of these factors justifies the
violence of responses, as in the NEFIN shutdown, for example, but credible allegations of state and media bias only
sharpen radical impulses.53
Most of the protests ended, as they often have in recent
years, with a deal between the agitating groups and the
government. For example, deals with the far-west movement, NEFIN and finally Tharu groups were reached.54
The agreements were signed forthe sole purpose of stopping protests, without any coherent policy or logic behind
them. They contained many contradictory commitments
and it is clear there was no intention of actually implementing them.55
The inclusion question also arose. In early and mid-May,
Hindu upper-caste communities claiming indigenous status enforced nationwide shutdowns. The "indigenous"
designation is important because it gives groups access to
special quotas and reservations.56 The protesters also asked
that the state not be restructured along ethnic lines. Caste
Hindus do not claim homelands and are dispersed across
Nepal. Dalits did not participate in this movement, but
were also included in the deal the government signed with
upper-caste groups.57 Janajati activists were sharply criti-
For an excellent summary of some of these arguments, see
"Tactical mistakes", The Kathmandu Post, 22 May 2012.
54 The NEFIN strike led to the government agreeing on 22
May, once again, to political preferential rights. "Nefin-govt
deal displeases NC, UML", The Kathmandu Post, 24 May 2012.
55 Commentator and researcher Deepak Thapa notes that all
governments are tempted to sign contradictory agreements with
agitating groups to paper over genuine concerns. Instead, he calls
for a "mammoth roundtable" to sort out competing claims. "Piecemeal approach", The Kathmandu Post, 24 May 2012. For some
examples of agreements signed between the government and
ethnic and regional activists, see Crisis Group Report, Nepal:
Identity Politics and Federalism, op. cit, p. 8.
56 For more on quotas, see Section II.A.2 above. The protests
included Chhetri, Brahmin and Thakuri organisations. Here,
"Thakuri" refers to a high-caste hill-origin Hindu community
that has long had close ties with the Shah dynasty. This alliance
contained groups previously unlikely to cooperate. Chhetri groups,
for example, have been critical of Brahmin organisations. Crisis
Group interview, Chhetri Samaj Nepal leader, Kathmandu, January 2012. "Bahun-Chhetris to intensify protests; Nefin slams
plan", The Kathmandu Post, 11 May 2012.
57 Dalits remain Nepal' s most underprivileged and discriminated against group, including through practices of untouchability.
They would gain the least from state restructuring, having no
territory or demographic advantage; but the community has not
mobilised aggressively. Dalits, and to a lesser extent Tharus, have
an uncomfortable relationship even with other marginalised or
identity-based groups. Many janajati communities, for example, have adopted the caste Hindu attitudes and behaviour dis-
cal. They argued that 59 listed "indigenous nationalities"
had met criteria set out in the National Foundation for Development of Indigenous Nationalities Act of 2002, while
Brahmin and Chhetri groups did not fit these standards.58
Violence, shutdowns and provocative language from all
sides have fuelled perceptions that identity claims are inherently divisive. The shutdowns and clashes also highlighted the potential losses to business interests, which
have barely been consulted or reassured that state restructuring will not reduce profits. It was thus easy for non-
political and political upper-caste groups and upper-class
interests, such as those represented by the business community, media and civil society, to come together and
advocate that these debates be put aside for the sake of
"social harmony" and that everyone adopt a single Nepali
identity.59 The widespread and explicit assertion by upper-
caste and class groups was a new phenomenon that helped
bolster the traditional parties' positions against identity-
based federalism in the lead-up to 27 May.
criminating against Dalits. See also Crisis Group Report, Nepal's Constitution (II), op. cit, Section VA.
58 "Bahun-Chhetri Samaj banda off, The Kathmandu Post, 18
May 2012. In literal terms, the "indigenous" category is misleading. Nepal was settled in waves of migration and few communities can claim true "indigenousness". Until the 1990s, activists used "janajati" or "nationalities" to describe groups originally outside the Hindu caste structure; whose religious traditions
often have elements of animism and shamanism; who claim
historical, cultural and religious closeness to particular territories in Nepal; and whose mother tongues are Tibeto-Burman
languages. In this sense, "ethnic" implies groups outside the
dominant cultural norms. The adivasi or "indigenous" tag was
adopted in the mid-1990s, in response to international recognition of the category, when janajati activists realised that their
groups had many ofthe markers that were used to define indigenousness. Indigenousness in this case is apolitical, rather than
literal, claim.
59 Crisis Group interview, business analyst, Kathmandu, May
2012. "Communal harmony" was the theme of a 23 May rally in
an upscale Kathmandu neighbourhood in response to the NEFIN
strike. Speakers reiterated that ethnic claims damaged Nepal's
national identity. The rally was notjust dismissive ofthe marginalised groups' concerns; it also seemed to suggest that the
monarchy should return. A popular royalist entertainer chanted
slogans to rally the crowd: "Hamro Nepal, hamro desh, pran-
bhandapyaro chha" or "Our country, our Nepal, is dearer to us
than our lives". Most Nepalis recognise this as a slogan ofthe
absolute monarchy, similar to "Hamro raja, hamro desh,pran-
bhandapyaro chha" or "Our king, our country are dearer to us
than our lives". The gathering was organised by the Federation
of Nepalese Chambers of Commerce and Industry and the Federation of Nepalese Journalists, among others. Academic Mahendra Lawoti argued that the rally further alienated ethnic and
identity-based movements. "Identity, mobilisation and the
state", The Kathmandu Post, 25 May 2012.
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The end ofthe assembly was a perfect storm. Everyone
saw this as their last chance to gain something. Parties
were aware ofthe rigidity of each other's positions, yet
believed the other side would blink first. Concessions were
matched by a shifting of goalposts. Power struggles over
government and threats of splits in parties ran through
every discussion. Democratic practice was ignored. Some
traditional actors, even if they were sympathetic to federalism, were reluctant to see the "Maoist agenda" succeed.
The parties involved were speculating on their political
future, without realising how the very absence ofthe assembly and constitution would change the equation.
Several options were available to the assembly, including
those suggested by the Supreme Court in its November
2011 ruling. The government could have imposed a state
of emergency, which would not have guaranteed a constitution or extension but could have helped buy time. A
near-complete constitution could have been issued and
some argument made for a final "technical rollover" to
polish details. Promulgating even a partial constitution
would have allowed the assembly to continue as parliament,
or another body could have resolved outstanding questions. The parties had not discussed the court's election
option seriously, but the Madhesi Morcha began mentioning it in the final days. The assembly's chairperson -
equivalent to the speaker in parliament - could have convened a session in the absence of an agreement and kept
it alive for some days to force leaders to reach a deal. The
assembly could have been extended if all parties had agreed
to challenge the court together.60
Meanwhile, cross-party political alliances were emerging
strongly and challenging their own parties' leaders. The
Maoists had been linked to the Madhesis since they jointly formed the government in August 2011. The Madhesis
and janajatis had agreed in the months before that they
would not interfere with each other's negotiations. Influential actors in all three forces agreed again shortly before
27 May that an in-principle commitment to federalism,
with the details left to a commission or the parliament
that would remain, could not be trusted. Traditional elites
in the political parties, bureaucracy and judiciary would
find new ways to obstruct federalism at a later stage. The
history of multiple deals made on federalism and inclusion
and which have not been honoured also worked against
this option.
The parties had underestimated the extent to which their
internal divisions, often based on federalism, would limit
their room for manoeuvre. Mid-level leaders from the
Consensus among the parties is recognised in the Interim
Constitution as a valid tool to resolve a deadlock.
Madhesi parties, which have often split, put intense pressure on their leaders not to compromise. The Maoist party's Baidya faction would have immediately walked out if
the party had shown more flexibility on federalism. UML
janajati members also said on 27 May that they would
immediately leave if party leaders made them give up their
demands. Party splits and defections on 27 May could have
had uncontrollably negative consequences forthe leadership of all parties, for law and order and for the continuation ofthe constitution-writing process.61
1.    Talks
On 27 May 2012, leaders ofthe four maj or political forces
- the Maoists, Congress, UML and Madhesi Morcha- met
around 9.30am at the prime minister's residence in Balu-
watar, ostensibly to negotiate a deal on federalism. The
establishment factions ofthe Maoists and Madhesi Morcha were clear they could not back the proposed eleven
state model of 15 May. They stuck to their demand often
or fourteen states with ethnic names, and no more than two
states in the Tarai, hoping the Congress and UML would
be forced to agree when faced with a broader consensus.
Any compromise beyond this meant Maoist party leader
Prachanda would face a serious challenge from janajatis
within his ranks, who were also being wooed by party
senior Vice Chairman Mohan Baidya "Kiran". The Madhesi Morcha was under intense pressure from younger
leaders and Madhesi civil society and intelligentsia not to
back down. These parties also feared ceding grassroots
space to a rival front of Madhesi parties, Broader Morcha,
led by Upendra Yadav and that still demanded a single
Madhes state.62 "If we had compromised any more, our
whole agenda would have been lost. The constitution-
writing process would have become hollow, so what was
the use of saving the process at the cost of substance?", a
senior Madhesi Morcha leader said. The UML's role was
at this time severely constrained by the threat of its 41 ja-
The following section is based on conversations Crisis Group
had from 30 May to mid-June 2012 with 21 central-level party
leaders in Kathmandu from the Maoist party, the Congress, the
UML, the Madhesi Janadhikar Forum (Loktantrik), Madhesi
Janadihkar Forum (Ganatantrik), Madhesi Janadhikar Forum
(Nepal), and Sadbhavana Party (also a Madhes-based party).
All were directly involved with the negotiations and in some
cases with the drafting ofthe constitution. More than two interviewees corroborate most elements of this account.
62 Yadav has been sidelined in Kathmandu politics for more
than three years. However, he headed the original Madhesi Janadhikar Forum (MJF) party, whichbecame synonymous with
the Madhesi agenda. He continues to maintain a significant grassroots network and has a reputation for integrity amid of sea of
tainted leaders. He is also close to the Baidya faction of the
Maoist party. For more, see Section III and Crisis Group Report,
Nepal's Expanding Political Matrix, op. cit, Section III.C.
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najati assembly members, who had played a prominent
role in the cross-party janajati caucus, leaving en masse.
Yet, the Congress and UML were equally convinced that
the primary compulsion ofthe Maoists and Madhesis was
saving the assembly, the constitution and federalism. They
could thus bargain hard. The Congress, UML and dissident
Maoists were also gathering support for a no-confidence
motion against the government. But even they were uncertain. Some younger UML leaders in particular felt it
was ill advised to focus on power sharing at such a sensitive moment.
When the talks broke for lunch that day, little of substance had been discussed, but many things had become
clear. Parties feared ceding too much or gaining too little
on federalism. Individuals were concerned that their social groups would lose disproportionately in state restructuring. Insofar as any actor was thinking beyond immediate self-interest, some were aware that there was a risk of
sustained violence breaking out along group lines following the adoption of a constitution. Party structures and
leadership were threatened, notably but not exclusively in
the Maoist party and the UML. All actors were looking at
their political futures.
When the parties reconvened at the prime minister's residence at about 3pm, the extreme reluctance to reach a
deal became clear, particularly on the part of Congress.
The parties received representations from minority caucuses, including the women'sand Dalit groups. Thejana-
jati caucus, which had been unexpectedly influential
since the 15 May deal, agreed to a significant concession
on state names. These could be "mixed", including an
ethnic group and a geographic feature or a historical reference.63 "The top leaders were positive about our suggestions and we were satisfied - we did not want the process
to stall because of us. But they showed their true colours
later", a Congress leader in the janajati caucus said.64 Sections ofthe Congress objected even to this diluted nomenclature and changed the discussion back to the number of
states arguing for eleven states or some combination of
ten states with referenda on parts ofthe Tarai. The janajati caucus was amenable to the eleven-state model, too,
but the Madhesis could not accept it, as it divided the
Tarai into five states.
The Congress and UML chafe at being held responsible
forthe end ofthe assembly and it is indeed difficult to lay
the blame solely at their door. However, it is clear from
numerous first-hand reports ofthe discussion at this stage,
including from Congress negotiators, that there was a high
degree of actual or feigned ignorance on their part about
the proposals on the table and about what "ethnic" federalism has come to mean overtime. A senior Congress negotiator says his party's argument became as simple as,
"ifyou [Maoists, Madhesis and others] don't accept eleven
states, we won't accept ten". Another claimed he never
read the proposals. Even at this late stage the Congress was
unwilling to accept that identity had become a determining
political factor. It was the same for the UML. A top leader
is reported to have said that the UML would reject any deal
that had "even a whiff of identity".65 Forced into federalism, the two parties wanted to change as little as possible.
Neither the Congress nor the UML would have agreed to
a vote in the assembly on provisions for federalism in the
constitution, although regulations allowed for this. The
"pro-federalism" lobby could not push for a vote either.
Despite the 320 signatures from 599 members ofthe
assembly against the 15 May deal, the Maoists, Madhesi
Morcha and janajatis were unsure that they could gain
the two-thirds majority needed to reach an agreement. In
any case, the chairperson did not turn up at the assembly
at any time in the afternoon of 27 May, preferring instead
to sit with the leaders. Without him, there was no one to
convene a session, let alone administer a vote.
By 4pm, it was clear that there would be no deal that could
provide a fig-leaf for any subsequent decision - to extend
the assembly, bring out a partial constitution, or make
plans for a change of government. The question became
what to do instead.
2.    Breakdown
Talks moved to the government headquarters in Singha
Durbar, where for the next eight hours five to ten leaders
from each ofthe major parties roved between the chairperson's chambers, the prime minister's office and the cabinet office. There was some suggestion that the leaders
move to the assembly building a kilometre away, but this
was abandoned, ostensibly for security concerns. As a result, most assembly members spentthe day ignorant of how
the discussions were proceeding and unsure when and for
what they would be called upon to vote.
In Singha Durbar, the parties discussed a few options together and with the assembly chair. The partial constitution idea was renewed. After it was issued, the assembly
would, according to the Interim Constitution, be "trans-
See Section II. A. 1. In addition to the Limbuwan-Koshi state
in the east, the Kathmandu area would not be called the Newa
state, but the Newa-Bagmati state, after the Bagmati river.
64 Crisis Group telephone interview, Congress leader, Kathmandu, June 2012.
' Crisis Group interview, journalist, Kathmandu, June 2012.
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formed" into a "Legislature-Parliament"66 which could
resolve outstanding issues.
The objections were legion. Madhesi and janajati leaders,
including those in the Maoist party, doubted that parliament would have the will or legitimacy to complete the
constitution. They argued that the assembly had been specially elected to draft the statute, but it failed. There was
no guarantee that a parliament, which had less legitimacy
for this purpose, would succeed. The Maoists were certain
that the first day the so-called "transformed parliament"
sat, the coalition government that they led would be faced
with ano-confidence motion. Given the factionalism in the
parties and threats of splits, the Maoists and Madhesi Morcha were concerned about finding themselves in opposition. This would tilt the balance of power away from actors
in favour of enshrining federalism in the new constitution.
In any case, whoever led the government in the transformed
parliament would not be able to push through their solution
for federalism without the required two-thirds majority.
The shape ofthe draft was another obstacle. The assembly secretariat, assisted by three senior lawyers, had been
working for some days to give complete form to the sections that had already been decided. Assembly members,
leaders and bureaucrats give conflicting reports of how
far the process had progressed. The chairperson is said to
have shown a draft riddled with ellipses. Others claim
large parts were in good enough shape to be formalised
quickly.67 However, a senior member ofthe assembly's
dispute resolution sub-committee said that given "the shape
the draft was in, those of us who worked a lot on these issues would have been absolutely humiliated if it came
out".68 A pro-federalism member involved in the writing
process argued that it did not matter what shape the document was in, as the Congress was threatening to withdraw
support from numerous provisions it had previously agreed
to, such as the semi-presidential form of government.69
The body elected in 2008 was meant primarily to function as
a Constituent Assembly. Its secondary, shadow role was as parliament, or "legislature-parliament" as it was called.
67 Crisis Group interviews, negotiators, constitutional lawyers,
Kathmandu, June 2012.
68 Crisis Group interview, Kathmandu, June 2012.
69 Crisis Group interview, Maoist negotiator, Kathmandu, June
2012. Provisions in the new constitution for judicial appointments and a constitutional court had been hard fought between
the parties and the Congress threatened to withdraw from some
of these agreements. According to a member ofthe drafting process, there were numerous gaps in the provisions on the form of
government and the electoral system, too. Another member said
that at this stage Prachanda began to hanker again for mention
ofthe "people's war" in the preamble. Crisis Group has looked
at a late version of the draft - it is unclear how many exist and
Procedurally, too, there were obstacles. The draft was
technically still with the constitutional committee's dispute resolution body; neither the committee nor the dispute resolution body had sat for some days but due process required that the committee pass the draft on to the
next step. Some ofthe parties were insisting that their
members would have to follow the instructions of party
whips, if there was a vote on federalism or on the constitution. Assembly members across the political spectrum
have frequently said that this would be unacceptable,
arguing that they should be allowed a conscience vote on
constitutional matters. For example, UML janajati members wanted to be able to vote for identity-based federalism even if their party took a different line.70 Given the
time constraints, it would have been almost impossible
even to reproduce and distribute the draft and assembly
members would have had to vote on the partial constitution without having read it.
Even if these matters had been solvable, however, the more
critical issue of ensuring continuity ofthe federalism negotiations in the "transformed legislature-parliament" was
not. Earlier in the afternoon, an adviser close to the discussions had drafted a short resolution for the parties to
discuss, ifthe parliament that replaced the assembly was
to deal with federalism. The federal states would be based
on "identity and capacity" and the principles, norms and
standards proposed by the two earlier state restructuring
bodies would be respected. Madhesi parties added that
there would be ten states and that members would be allowed to vote freely, without interference from party whips
or fear of expulsion. The Congress and UML deleted the
no-whip provision and added a clause saying that proposals made by the parties would also stand. Even ifthe
janajatis and Madhesis had trusted parliament to deal with
federalism, there could not have been agreement on the
terms of reference for such a task.
Other options could have been adapted from provisions in
the Interim Constitution to keep parliament alive.71 About
six hours before the assembly ended, leaders began to consider how to extend its term despite the Supreme Court's
judgment, or to save its role as parliament, even if a partial
constitution could not be issued. Some pointed to the bill
tabled a week earlier to amend the clause for extension.
Although the Supreme Court had stayed the bill, they suggested it could be amended to replace the assembly with a
in what state they are - and it is perhaps for the best that the
text did not see the light of day.
70 Crisis Group interview, UML negotiator, Kathmandu, June
71 Two articles were seen to provide a way out. Article 64, on the
term ofthe assembly, amendment of which the Supreme Court
had effectively stayed days earlier, and Article 82 on dissolution
ofthe assembly and continuation ofthe body as parliament.
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parliament. But many were sceptical. Prime Minister Bhattarai from the Maoists and Deputy Prime Minister Krishna Sitaula from the Congress had already been charged
with contempt over this very issue. This made the prime
minister, at least, extremely wary. Alternatively, another
clause of the Interim Constitution dealing with dissolution ofthe assembly could have been amended to allow
parliament to continue and elections to be held.72 A leader
from the Maoists' Baidya faction argued that this would
amount to "constitutional fraud".
The Maoists also asked that the Congress and others commit in writing that, in exchange for an extension or continuation of parliament, they would not immediately lodge a
no-confidence motion against the government. The main
priority ofthe Congress did appear to be unseating the government to take charge itself. This demand, rather than urgency about finishing the constitution, has also dominated
its response to the post-assembly context.
3.    Emergency
By 8pm, discussion had turned to declaring a state of
emergency, which the Maoist leadership at this time supported. While this would not automatically extend the assembly's term, it would keep the house alive and buy the
parties some time. But it would only work if all the parties
bought into the decision immediately or provided cast-iron
guarantees that they would ratify it when it came to a vote .73
The Congress was divided. Leaders associated with the
party's president, Sushil Koirala, said that though they
were possibly sympathetic, they would protest imposition
of an emergency. A Congress negotiator claimed that he
had spoken to President Ram Baran Yadav, who had said
he would not sign the order.74 Rival leader Sher Bahadur
Deuba, on the other hand, was an enthusiastic supporter.
Deuba favoured the continuation ofthe Bhattarai-led government and a state of emergency, believing that since a
change was inevitable, such flexibility would allow him to
Article 83 ofthe Interim Constitution deals with the Constituent Assembly functioning as parliament after it has promulgated the constitution. Articles 64 and 82 deal with dissolution
ofthe assembly. Interim Constitution of Nepal, op. cit.
73 The Interim Constitution says the government or cabinet can
impose a state of emergency on the condition that it is tabled for
approval by a two-thirds maj ority in parliament within a month.
74 The position of president is ceremonial; he is only to act on
the recommendation of the cabinet. However, he holds some
powers that used to lay with the king, including the ability to
"remove obstacles" or be the "last resort" to a crisis. The current
president, who was elected by the Constituent Assembly in 2008,
is a Congress member who has not always appeared free of partisan motivations. See Crisis Group Asia Report N°173, Nepal's Future: In Whose Hands?, 13 August 2009, p. 6.
appear as a more broadly acceptable candidate for prime
minister when the time came.
The Maoists insisted that all major parties needed to "own"
the emergency. Reportedly, so did the Indian establishment. Both believed the measure, unpopular with the public
in any case, would not be used to agree on a constitution,
but instead to change the government. 'You can't reach a
consensus for the constitution, only for a no-confidence
motion", Prime Minister Bhattarai reportedly said late on
27 May. This would open the door for a government controlled by the Congress, UML and the Baidya faction, if
the latter were to split from the Maoists. This contradictory
coalition would not likely be a constructive force for the
constitution or much else. For different reasons, these
actors are also aggrieved by India's apparent approval of
the current government. They could possibly operate on a
nationalist and therefore anti-Indian platform.75 It would
also be in bad faith to write a constitution under a state of
emergency, although this does not seem to have influenced
the parties' thinking.
There was little, if any, communication from the leaders.
All afternoon, assembly members had been concerned that
Chairperson Subas Nembang was not even on the premises
or reachable on the telephone. Instead, he trailed the top
leaders. An interlocutor said Nembang refused the prime
minister's repeated requests that he return to the assembly
hall.76 Many now argue that he was not true to his responsibilities to the assembly but swayed by his loyalties to
the more hardline anti-federalism faction of his party, the
UML. Had he convened the assembly (the body only functioned as parliament for legislative purposes, not for constitution writing) session, no matter how late, perhaps the
leaders would have been forced into a better decision. It
would also have been possible to keep the session alive for
some days and make constitutional amendments to extend
the assembly's term further or vote on parts ofthe draft
There are arguments against this, mainly that the assembly had no "business", since there was no draft to comment on. Yet the spirit of democratic practice ought to
have dictated that the chairperson respect the interests of
assembly members who had been left out of all decisionmaking, and bring the discussion back to them.
Crisis Group interviews, Congress and Madhesi negotiators,
Kathmandu June 2012. For more on allegations of Indian support
to the present government and Baidya's objection to an investment protection treaty Prime Minister Bhattarai signed with India, see Crisis Group Briefing, Nepal's Peace Process: The
Endgame Nears, op. cit, pp. 8-10.
76 Crisis Group interview, Maoist assembly member, Kathmandu, May 2012.
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The major parties were under severe pressure by now.
Prime Minister Bhattarai and Prachanda continued to be
uneasy about a possible no-confidence motion in the background, though they were unclear whether this was being
planned by the Baidya faction to depose the government
or to mobilise for a pro-federalism vote. It was not certain
that either the UML or the Maoists would split in the face
of a deal on federalism that they deemed disappointing,
but the leaders of both parties took the threat seriously. The
Congress was livid as its negotiators were left alone for
long stretches over the course ofthe day while the prime
minister and Prachanda were apparently conducting other
meetings. Some 150 assembly members, fed up of being
ignored, tried to march on the government headquarters.
They were pushed back by a tight security cordon and the
gates ofthe seat of government, Singha Durbar, were locked.
Over the next hour or so, the election announcement was
drafted and the prime minister went to inform President
Ram Baran Yadav. At about 11.45pm, the president received a protest drafted from the Congress, UML, Upendra Yadav's MJF (Nepal) and a faction of a party in the
ruling Madhesi Morcha. Almost simultaneously, Prime
Minister Bhattarai announced that elections to a new assembly would be held. There was no formal announcement
to assembly members, no ceremonial thanking or ending
ofthe assembly.
4.    Election
The last pieces fell apart in the chairperson's chambers at
about 9pm. Prime Minister Bhattarai and Prachanda went
to the prime minister's office, where the final decision on
the assembly's future seems to have been made. The prime
minister said that, according to the verdict ofthe Supreme
Court, elections to a new assembly were the only alternative. There was some tension with the chief secretary, who
was reluctant to formulate the government's proposal for
elections. He argued, with some justification, that constitutional amendments were needed to conduct polls. However, it was unlikely these could be passed in the two hours
that remained, even ifthe Congress and UML agreed to
an election.
Shortly before 10pm, Prime Minister Bhattarai called a cab-
inetmeeting. The Congress, having heard that the proposal
to organise elections was moving forward, rushed over
to agree to a state of emergency. The prime minister was
already speaking with his cabinet, however. Prachanda
reportedly said, "there is nothing to discuss now". Congress leaders, frustrated by a day of waiting and reacting
while everyone else apparently had things to do, were exercised by the prime minister's "indecent behaviour".77
By 10.30pm, the cabinet had decided that elections would
be held on 22 November 2012. The deputy prime minister
from the UML, Ishwor Pokharel, objected, but to no avail.78
Crisis Group interview, Congress negotiator, Kathmandu,
June 2012.
78 After the Madhesi Morcha and Maoists backtracked from the
15 May agreement on federalism, the Congress cabinet members
resigned. Technically, Prime Minister Bhattarai never accepted
their letters of resignation. The UML members, who had also
joined the government after the 15 May deal, resigned on28 May.
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There are two broad possibilities: new elections or agreeing on the constitution and reviving the assembly to pass
it. Neither option is ideal or easy. Both require political
consensus and navigating constitutional gray areas. The
parties need to reach a decision quickly so this limbo can
end, as the Interim Constitution envisages neither a situation with no legislature nor another election for a Constituent Assembly. The assembly was meant to provide
Nepal with a new constitution that would establish a new
electoral system.79 The elections cannot take place as announced in November 2012 since the parties did not agree
on the way forward and, as a result, the election commission was unable to begin preparations on time. Elections
can now only be held in spring 2013 at the earliest.80 The
absence of an elected parliament will be increasingly problematic, worsening the mistrust between the parties and
making governance extremely difficult.81
Some suggest that the parties could reach in-principle
agreements on constitutional issues and then hold an election to a body that, at its first sitting, would ratify those
agreements and promulgate the new constitution. But the
absolute unpredictability of election results and the parties' history of backtracking on deals inspire no confidence that such a faux-deal would be honoured.82
This section is based on conversations Crisis Group had between late May and mid-June 2012 with close to 25 central-
level party leaders in Kathmandu; telephone interviews with
almost twenty district-level leaders and activists from Sunsari,
Dhanusha, Banke, Bardiya, Kailali, Dadeldhura; interviews in
Kathmandu with four constitutional lawyers and advisers to the
constitution-writing process. Crisis Group also visited eight districts in the mid- and far-west in April - Banke, Bardiya, Dadeldhura, Doti, Kailali, Kanchanpur, Pyuthan, Surkhet - and
six in the east in June - Dhankuta, Jhapa, Morang, Saptari, Siraha, Sunsari.
80 It is received wisdom that, because of weather conditions, festival seasons and farming schedules, elections can only be held
in October-November or April-May. On 30 July, the election
commission announced that polls could not take place in November, as the constitution and other relevant laws had not
been amended to legally allow for elections. The parties had
also not reached any agreement on this matter.
81 Until there is a parliament, the government will have to rule
through ordinances that have to be approved by the president,
which could mean conflicts between the latter and the prime
82 For example, although the parties had agreed to declare Nepal a secular republic immediately after the 2008 elections, there
were bitter negotiations between the Maoists and Congress,
which used this as a bargaining chip while negotiating who
would be elected president.
Some opposition members and civil society actors have
taken to lobbying for elections to local bodies, last held in
1997. This is a distraction at best and mischievous at worst.
Until there is a constitution, any election - whether for
local government or parliament - will be a proxy for voting
on all disputed issues. Heightened tensions, polarisation
and heavy mobilisation will increase the risk of violence.
Although representative local bodies are desperately needed, they should not be attained through such an election, as
local government is the last issue on the minds of parties.
The parties have no absolute positions for or against either elections to a new assembly or reviving the old one.
Their stance at any time reflects their relations with other
actors, confidence or lack thereof in their agenda and analysis oftheir strength relative to other parties. In the weeks
after the end of assembly, calls for reviving it were strong.
After that, for a period, a consensus in favour of elections
was close at hand, but that proved elusive. Three months
after the assembly lapsed, there is still no clarity on how
constitution writing will resume.
The ruling Maoist-Madhesi coalition prefers elections but
is open to reviving the assembly. The Congress flip-flops
between the two options and for now prefers to revive the
assembly. The UML wants the prime minister to resign,
the constitution to be decided and issued, and elections to
a new parliament. These decisions are linked to a change of
government - the Congress desperately wants to get back
in power and will make that a precondition for both reviving the assembly and conducting elections. In return, the
Maoist-Madhesi alliance will want constitutional issues
There will have to be a package deal encompassing all
these variables. The trust deficit is so high between the
ruling Maoist-Madhesi alliance and the main Congress-
UML opposition that any agreement will need to include
firm principles and guarantees. Some of these will be evident in the sequencing they agree upon; others will have
to be negotiated. For example, should the newly elected
body, whether a Constituent Assembly or parliament, accept the relatively uncontroversial clauses drafted by the
last assembly in the interests of time? Ifthe election does
not lead to a clear winning party or alliance, should there
be an all-party government until the constitution is written? In all cases, some options might be unacceptable to a
party simply because an opponent favours it.
The impact ofthe change in the overall political picture
cannot be gauged yet. The Maoist-Madhesi Morcha-
janajati alliance could either consolidate or fragment. The
new Maoist party is a significant factor, as is the Broader
Madhesi Front. The Congress will try and rally around an
alliance it will call pro-democratic. Newly powerful actors,
such as the janajati caucus and associated groups, other
identity-based outfits and the monarchical right wing can-
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not be fobbed off with meaningless deals.83 The debate on
federalism and inclusion has now moved out ofthe parties' control into the social sphere. These changes complicate the possibility of an agreement.
At the heart of all this lies the elusive consensus. So far, it
has been a way to ensure that everyone gained something
in return for a concession or to extract the most benefit
from the balance of power.84 International actors have also
encouraged consensus, even as its actual meaning was increasingly detached from the ideal behind it.85 Something
more substantial is needed now, not another series of vaguely worded and half-meant agreements. The parties need to
recommit to the CPA and negotiate iron-clad guarantees
on the way forward.
The absence of an elected legislature is deeply damaging.
If it persists, tensions between the parties will inevitably
worsen. Reviving the assembly would address this. However, reinstating the body for the same actors to continue
the same discussions, again short-circuit provisions for
broader consultation and fall back into power plays to make
and break governments is meaningless and possibly very
difficult. The balance of power has changed between the
See Crisis Group Report, Nepal's Expanding Political Matrix,
op. cit, Sections III.C for more on the second Madhesi group
and Sections III.D and IV. C for more on the resurgent right wing.
84 See, for example, Crisis Group Asia Briefings, Nepal's Peace
Process: The Endgame Nears, op. cit, Section VI.A; and Nepal 's Fitful Peace Process, op. cit, Section V. When the Maoists were out of government from early 2009 to early 2011, they
had no incentive to dismantle their army even if they had no
intention of resuming war. The party demilitarised in a slow,
calibrated process and each step was accompanied by other political changes. Under the hostile UML government of Madhav
Kumar Nepal (May 2009-February 2011), it discharged the disqualified combatants. Under the Jhala Nath Khanal-led UML
government (May-August 2011) in which the Maoists were a
junior partner, they agreed to divide the former fighters into
those who would retire and those who wanted to join the Nepal
Army. The party would hand over the cantonments, weapons
and combatants when it would lead the government. The Congress similarly used the combatants issue to block progress on
constitution writing. When the future ofthe fighters was settled
in November 2011, work could begin in earnest on the constitution, but only because an informal deal had also been concluded,
in which the Maoists would make way for a Congress-led national government after the constitution was issued. The UML's
primary contribution has been the making and breaking of governments.
85 A senior Congress leader said: "We are all responsible for
what happened. We all kept talking about consensus and the
international community kept pushing consensus too, as if that
mattered more than substance". Crisis Group interview, senior
Congress leader, Kathmandu, June 2012.
parties, as the formation of new alliances suggests. Groups
outside the assembly will want to be heard, but not all
parties seem to have accepted this. Reviving the assembly
also means parties could again get sidetracked, attempting
hostile removal of governments.
The full emergence of some ofthe political alliances that
were unofficially in play in the final weeks ofthe assembly could be a critical factor. The ruling Maoists and Madhesis have announced their Federal Democratic Republican
Alliance. This will push for either elections to a new Constituent Assembly or reinstatement of the last one after
the parties have agreed on contentious constitutional issues. This is not a significant shift for any ofthe members,
but it brings the constitution back to the centre ofthe decision and conveys the impression that these actors set the
The Nepali Congress, again in the throes of distracting and
damaging factional conflicts, realises that this alliance pushes it into a corner. Even the basic peace process agenda of
a new constitution appears to be slipping from the grasp
ofthe Congress. This will affect its electoral chances, even
among constituencies sceptical of identity-based federalism. The public at large, tired ofthe parties using the peace
process as an excuse for all their shortcomings, sees the
new constitution as a marker of a new phase forthe country.
The position the Congress finally takes could be strongly
in favour of completing the constitution as soon as possible, issuing it and holding elections to a new parliament.
That way, it can gather support from those disgruntled about
specific decisions on federalism.
The sticking points will be sequencing and the role ofthe
revived assembly. The Maoists and now the Madhesis want
an agreement on the substance ofthe new constitution first
and the assembly only revived to pass it. The Congress says
the prime minister's resignation should be the precondition
for any further step and is unclear about whether constitutional negotiations should take place in a revived assembly or before that with the assembly only reconvened for
a short time to pass the constitution. The best hope for revival is if actors who want it most badly can convince their
party members to agree. Those largely in favour of reinstating the assembly are Maoist Chairman Prachanda, senior
Congress leader and former Prime Minister Sher Bahadur
Deuba, the janajati members ofthe UML and some Madhesi actors. Most parties give the impression that reviving
the assembly can be business as usual. This is neither
possible nor desirable. Consultations will need to be more
broad-based, detailed and transparent, in order to reduce
the risk of violent responses. Ideally, they would take local-
level actors into confidence and involve more voting by
assembly members. (See Section III.C for how to improve
negotiations.) Such measures will prolong negotiations.
However, the parties are in a rush to finish the constitution.
That makes it unrealistic to expect renewed negotiations
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and a revived assembly that will function differently than
before. Negotiating the constitution will remain a profoundly
challenging task.
B. The Election Option
Elections would be a powerful measure of the actual
extent and nature of change in Nepal's political context.
Such clarity could help re-cast the debate on federalism.
Many supporters ofthe election believe polls will tip the
balance of power. Technically, the new constitution requires a two-thirds majority to be passed in the assembly.
In reality, it needs the broadest possible consensus to be
accepted as legitimate. Even if a coalition could garner
the majority and pass a constitution, this will occur in a
polarised environment after an election that will possibly
have been violent. Getting the numbers does not guarantee a lasting, broadly acceptable political settlement, though
it will be the basis for decisions.
The parties also disagree on the primary function ofthe
body that will be elected. The Nepali Congress says elections should be to a parliament that can have a secondary
function as a Constituent Assembly. The Maoists want
the previous arrangementto continue - the elected body's
primary identity should be that of a Constituent Assembly
which can turn into parliament after it has issued a constitution.
Most importantly, the outcome of an election is extremely
unpredictable. Nearly all observers and many politicians
completely misread the mood before the 2008 Constituent
Assembly elections. The present context is more fluid and
has more actors. Like in 2008, there is a clearly identifiable political axis around which the election will revolve,
namely federalism.
Supporters of a pro-federal and pro-identity constitution
argue that a loose coalition of Maoists, janajatis and Madhesis form a significant force. However, these actors face
challenges. Single-issue electoral alliances are an untested
strategy, for one. For another, local dynamics and alliances
will be a critical and complicating factor in deciding how
to divide up seats. Old, localised contradictions and tensions between individuals in the pro-federal groups could
resurface, such as between Madhesi andjanajati contenders,
Maoists and Madhesis, Maoists andjanajati candidates or
Madhesis and Tharus. For each ofthe three forces in a
notional winning pro-federal coalition - Madhesi, Maoist
andjanajati - there is a similar opposing force. The Maoist party has split and another Madhesi front has emerged.
Janajati groups could also not all choose the same side.86
For more on these dynamics, see Crisis Group Report, Nepal's
Expanding Political Matrix, op. cit. Sections II, III.C and IV. A.
This could either still mean a victory for pro-federalism
forces; or it could severely fragment constituencies and
Nepalis do not always vote along identity lines and if they
do, it is not always for the same reasons. Brahmins and
Chhetris will not all vote for only the Congress and UML,
for example. By the same token, even if janajatis vote
more than before for janajati candidates, they might not
always choose the most radical line on federalism. "I believe Congress will perform well in elections here in the
eastern hills but will need to field a janajati candidate",
said a Congress leader in Dhankuta.87
Upper-caste groups for the first time face the possibility
of being in the political minority. They could mobilise in
ways that capitalise on contradictions in the pro-federal
camp or by raising the level of fear. New regional or
identity-based parties could shift the balance away from
national actors. The far-right, particularly the monarchist
Rastriya Prajatantra Party (Nepal), or RPP(N), favours
elections, believing it can capitalise on some ofthe insecurity and frustration ofthe general public. All these
dynamics will vary from place to place.
Elections are best held by an all-party government, to reduce, if not eliminate, the risk of serious violence, as well
as mutual recrimination and allegations of government-
perpetrated fraud. Yet even with this in place, contestation at the constituency level is bound to be sharp, and not
only because of federalism. "We were scared during the
last election, but we are not now. We have got our boys together again and we have got pistols and other things too",
a Congress organiser from Kavrepalanchok district said.88
The effective postponement ofthe elections from November 2012 to, at the earliest conceivable, March or April
2013, prolongs apainful legislative vacuum. Yet, the delay could be useful. Many parties are not prepared for elections. "Nobody, not the Congress, not the UML [was] ready
for elections in November", a Limbu leader from Sunsari
said.89 The delay also allows a cooling-off period, rather
than segueing directly from the present polarisation and
disappointment into an election campaign. Ifthe parties
decide on elections to a new assembly, former parliamentarians, parties and interest groups should use the delay to
initiate local- and regional-level dialogue to explain the
discussions so far about federalism and inclusion.
Crisis Group interview, Congress leader, Dhankuta, June 2012.
88 Crisis Group interview, Kathmandu, June 2012. Other mid-
level Congress leaders and activists have also spoken frankly
about this "preparation".
89 Crisis Group telephone interview, Sunsari, May 2012.
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All sides need to modify their tone and language to reduce
the risk of violence. Equally, they must listen and answer
questions honestly. The abstractions presented by Kathmandu's elite politicians and commentators have given
rise to spectres. Explaining the nuts and bolts and demystifying party positions does not automatically mean that
elections, constitution writing or implementing federalism
will be peaceful. But it will allow the Nepali public, whose
good faith and good-will have been severely tested, to
have its voice heard if there are elections. The parties also
need to moderate expectations - things will indeed change,
but merely having a constitution will not solve all problems. Crisis Group has heard significant arguments for and
against elections to a new assembly from actors, activists
and analysts across the political spectrum.90
1.    Elections are democratic and (relatively) legal
The most common argument in favour of elections is that
polls are the best test of the consolidation of identity
politics and of whether the political balance of power has
changed. Maoists, most Madhesis and new janajati actors
not in established parties are the strongest advocates of
this position. They argue further that ifthe representatives
in the last assembly could not agree on the constitution in
four years, there is no guarantee that they can do so if
given another few months. Now, they say, although misinformation remains, people are better informed about
federalism than they were in 2008. A central-level Maoist
leader said: "At that time [in 2008], people were voting
for peace, or for or against the Maoists. By now many
people know that the core ofthe peace process is federalism. That is about all Nepalis, not only Maoists. People
should get the chance to vote for that".91
Some activists also say that voters need a chance to bring
their regional concerns to the fore and to jettison discredited politicians. For instance, the fear of a close election
could force parties to present clear agendas and select
better candidates. Every part ofthe country has different
problems and responses to the federalism debate and the
Kathmandu-centred discussions of national leaders and
media tends to flatten these, presenting them as only for or
against federalism, and for or against ethnic or upper-caste
For example, in the eastern hills, where Limbuwan groups
are active, there is a distinct history of identity movements and radical rhetoric about self-determination has
alternated with accommodation and outreach to all groups.
In the far west, Tharu and upper-caste groups are open to
negotiation and there are tangible issues to discuss. In the
Pokhara area, a sharp polarisation between upper-caste
90 See Section III.B.3 for more.
91 Crisis Group interview, Kathmandu, July 2012.
groups andjanajati groups became visible in May, although
no specific disagreement was apparent. An election would
allow these issues to play out, while a revived assembly
would continue to treat them as appendages of a "national
Some pro-federalism constitutional experts and analysts
argue that elections are the least problematic option, although, like reviving the assembly, polls will also require
the law to be bent. Even if only one election to a Constituent Assembly was envisioned, at least there are constitutional provisions that can be amended to conduct a
second election. Some of these experts add that the last
assembly allowed too many overrides of democratic procedure. A fresh start in a new assembly would allow the
process to be strengthened. Even the electoral design could
be improved. For example, parties could be asked to rank
their lists for proportional representation, so voters would
know which candidate on the list would take the first seat
the party won, which the second and third and so on.
Members ofthe Congress and UML argue, when they favour elections, that the political landscape will not change
completely. New alliances, such as that envisioned between the Maoists, Madhesis andjanajatis might not last.
Janajati groups may not maintain momentum. "Old faces
and old forces will notjust vanish, we are still relevant",
a district-level Congress organiser said.93 They argue, as
do a few observers, that if elections bring old actors back
to the assembly, this will help preserve some ofthe work
ofthe last body.
Finally, the far-right monarchist parties favour elections,
believing they can capitalise on some ofthe insecurity and
frustration ofthe general public.94
2.    Elections will be violent and
will not change things
The strongest arguments against elections come from the
Congress and UML. Members of these parties argue that
there is no guarantee elections will throw up definitive
results.95 A new assembly could thus find it even more
difficult to reach a deal on the constitution. It would be a
waste of time and financial resources to again be saddled
92 Crisis Group interview, analyst, Kathmandu, July 2012.
93 Crisis group interview, Kathmandu, June 2012.
94 The most prominent of these parties is the Rastriya Prajatantra Party (Nepal), or RPP(N), which has said since 2006 that the
abolition ofthe monarchy was both wrong and illegal. For more
on the royalist right, see Crisis Group Report, Nepal's Constitution (II), op. cit, Section III.D.
95 There are real concerns that the Congress itself will fare very
badly, but leaders do not of course present this to outsiders as
an argument against elections.
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with a weak and constantly shifting balance of power and
the compromises of coalition politics. More importantly,
a senior Congress leader said: "Ifthe next election is for a
Constituent Assembly, this will cement damaging, undemocratic political positions and radical ethnic parties.
They may gain electoral support, but such politics does
not serve the country's best interests".96
An extension of these arguments, although not one that
politicians or analysts raise directly, is the heightened risk
of violence. The weeks before the last assembly ended
demonstrated how deep polarisations run in Nepali society. The election will in effect be a referendum on federalism and the place of identity in the federal model. Groups
jostling for a say in the new constitution will see their definitive moment to influence decisions. Elite groups who
feel they may lose out will be struggling to maintain supremacy. Communal violence would be much less controllable than the calibrated inter-party violence that elections often involve. Radical armed groups could emerge,
if fringe groups on any side feel that the election will only
serve to soften their agenda, not further it. (For more on
the risks of violence, see Section III.E.)
An argument against elections initially advanced by members ofthe Congress, UML and some in Kathmandu's civil
society was that the government's decision to call elections
without bringing the other parties on board first and making the necessary constitutional amendments was unconstitutional. Instead, the government should have ensured
the constitution was amended to conduct the polls legally.
Sections of these groups also often say that four more years
of another 601-member body is too expensive.97
Those who present the above arguments say that the last
assembly had resolved most ofthe contentious constitutional issues. The best way forward, they say, is to complete
the constitution as soon as possible, either through an all-
party government, a revived assembly for discussions or a
constitutional commission. This would allow a quicker
end to the exhausting peace and constitution-writing processes and a much-needed return to regular parliamentary
politics so parties could focus on governance instead.
The more extreme end ofthe argument against new elections holds that the average Nepali has no idea what federalism means and that Nepal has been shown it was not
96 Crisis Group interview, Kathmandu, June 2012.
97 The Interim Constitution originally gave the assembly two
years. Every one ofthe four extensions since the original end of
the assembly' s term in May 2010 took place through a constitutional amendment. The Interim Constitution thus now mandates
a four-year term for the assembly. This will have to be amended either before the next election or in the first sitting of the
newly elected Constituent Assembly to reduce the term back to
two years or even less, as the parties see fit.
ready for a Constituent Assembly. At best, some on the
far-right hold, a commission could draft a constitution.
Alternatively, the idea could be shelved until Nepal's politics stabilises.98
3.    Election challenges
The Interim Constitution contains election-related articles
that need to be amended. This can be done through ordinance with or without the consent of the opposition,
through a difficult political agreement to revive the legislature for a few days, or ifthe president uses his authority
to "remove obstacles", as the Interim Constitution calls it.
The articles needing amendment deal with the date ofthe
election, the cut-off date for eligibility to vote, and constituency delineation.99 The Constituency Delimitation
Commission bases its delineation of constituencies on the
census, and many argue that the 2001 census figures are
not an adequate or fair basis to draw constituencies. 100A
census was conducted in 2011 but will only publish its
final report at the end of October 2012. Redrawing constituencies will be challenging and contentious.
Voter registration is also a tricky issue. Based on population projections, the election commission had expected to
register about 14.5 million voters ahead ofthe next election. So far, 10.5 million have been registered. About a
million eligible voters, who are not yet registered either
lack citizenship or, the commission assumes, are not interested in voting. The remaining are believed to be living
overseas.101 The details of more than 60,000 voters are
inaccurate and need to be fixed.102
Crisis Group interviews, anti-federalism analyst, Kathmandu,
June 2012.
99 Articles 33.A, 63.3 and 63.7. The Interim Constitution of
Nepal, op. cit. Crisis Group interview, election commissioner,
Kathmandu, June 2012.
100 Crisis Group telephone interview, senior official, Central
Bureau of Statistics, Kathmandu, June 2012.
101 Citizenship certificates are a political hot potato in the Tarai.
There are allegations of Indian citizens obtaining them by fraud
or through the favour of political leaders who want a pliable
constituency. But Madhesi activists allege bias and barriers including language to accessing the government services, such as
land and other records needed to prove citizenship. However,
the problem is not confined to the Tarai. The election commission found that as many as 40 per cent of residents in some hill
districts do not have citizenship papers. The Carter Center estimates a total of 2.1 million people may lack citizenship documents and that between 1 -4 million eligible voters are unregistered. "The Carter Center's Fourth Interim Statement on the
Election Commission of Nepal's 'Voter Register with Photograph' Program", The Carter Center, July 2012.The number of
Nepalis working and living overseas is estimated at over 3 million; this also complicates the election commission's efforts to
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Political games will not stop. Despite that, discussions
can clearly be better designed, whether in a parliamentary
framework or not. An assembly set-up would make safeguards easier, although rules are effective only as long as
actors commit not to disregard them. Any new discussions
inside or outside the assembly have to be more inclusive
and transparent. That means politicians must be willing to
expose themselves to scrutiny and give up some power in
exchange for uncertain rewards. Leaders must pay attention in their own parties to the positions of mid-level
leaders and minorities, both of whom might be more in
touch with the mood in the districts. But it is impossible
to impose internal democracy on parties or to make them
adopt more coherent policy mechanisms or more transparent organisational management. The parties will have to
want to function differently, even if only for a short time.
1.    Protecting Constituent Assembly functions
The assembly had created so-called thematic committees
to prepare papers and drafts on a variety of constitutional
subjects.103 These were reasonably well-informed and creative, although there were also some significant loopholes.
When thematic committees could not agree on an issue or
there was a significant dissenting opinion, both alternatives were left in the draft.104 The constitutional committee
should have been the first stop after the thematic committees to resolve contentious issues.105 If this was too difficult,
specific issues could have been put to a vote following
plenary discussions. The new constitution was also meant
to be passed article by article, rather than as a whole. However, voting did not occur at any stage. Instead, a high-level
task force and then the constitutional committee's "dispute resolution sub-committee" decided on everything.106
register voters and issue voter IDs. Crisis Group interview, senior election commission member, Kathmandu, 4 June 2012.
102 Crisis Group interview, election commission official, Kathmandu, June 2012.
103 Some of these drafts were passed unanimously by the committees, others were passed with a "minority opinion" attached.
104 For example the committee on the judicial system's concept
paper included dissenting opinions from its members on more
than five issues. "A Report Preliminary Draft with the Concept
Paper", Assembly Committee on the Judicial System, September 2009.
105 In theory, the constitutional committee would resolve outstanding issues or decide to put them to a vote. In practice, top
leaders ofthe Maoist party, Congress, UML and later, Madhesi
parties negotiated these issues, often tacitly as part of wider negotiations on the Maoist fighters and change of government.
106 Afterthe high-level taskforce was formed in October 2010,
the assembly was bypassed entirely in these discussions. Smaller
parties protested. As early as February 2011, the constitutional
Some in Kathmandu now say that the last assembly failed
because Nepal is not ready for a constituent assembly. But
this argument overlooks how much of the constitution
was actually negotiated. The inability to agree on federalism does not mean the idea of a constituent assembly has
failed; rather, it is an indication ofthe distance between
the parties on major constitutional matters. The multiplicity
of issues they were negotiating, constitutional and others,
allowed for federalism to be continuously pushed back.
It also became the norm to override democratic practices.
At various points, the assembly's timetable had to be
amended as it scurried to meet deadlines. From the start,
the planned public consultations began getting shorter
and shorter until they disappeared earlier this year. "Even
with a three-month extension until 27 August [2012], the
parties would not have consulted with the public", claimed
a UML janajati leader.107 Processes were also amended.
By May2012, it was decided to pass the entire constitution
in one go, rather than voting on each article.
Workarounds can be found for any provisions; rules will
only work ifthe parties stop considering them idealised
suggestions. Yet some measures could be enforceable and
helpful for a new or revived assembly, such as:
□ Rules of attendance and serious penalties should be
enforced so as to force senior leaders to participate.108
□ Some rules of procedure, such as on plenary discussion
and voting to resolve contentious issues, as well as timetables, including for public consultation, should not be
committee's chair, Nilambar Acharya, criticised top Congress,
UML and Maoist leaders for keeping other parties out of constitutional decision-making processes. "Challenges in drafting
the new constitution discussed",, 5 February
2011. The dispute resolution sub-committee belonged to a web
of sub-committees and task forces that followed. It was formed
later in February 2011 and mostly comprised the same top
Maoist, Congress, UML and Madhesi leaders (some of whom
had lost their constituencies in the 2008 elections) who had
dominated these negotiations. In theory, the sub-committee was
under the constitutional committee, but in reality it operated
entirely independently.
107 Crisis Group interview, UML janajati leader, Kathmandu,
June 2012.
108 Senior leaders were notorious for skipping parliamentary
sessions. From May 2008 to April 2010, the average attendance
of assembly meetings was 63 per cent, or slightly less than two
thirds of the members. Senior leaders had particularly dismal
attendance records. For example, Maoist Chairman Prachanda
had an attendance rate of 6.93 per cent during this period, and
Congress prime ministerial hopeful Sher Bahadur Deuba, 1.98
per cent. "Attendance and Participation in the Constituent Assembly", Policy Paper no.4, Martin Chautari, September 2010.
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□ Members of assembly committees should not be nominated members ofthe assembly, but have to be either
directly elected or selected by the parties from the ranked
lists of candidates for seats won through the proportional representation vote.
□ Committee heads should be voted in by committee members or rotate according to pre-defined criteria instead
of being appointed on the basis of "consensus".
□ Formal provisions for participation of legal and academic advisers should be enforced. The presence of these
experts must be official and their contributions minuted.
□ The use of "consensus" during assembly meetings and
while resolving contentious issues will be unavoidable,
but should be used in combination with voting and only
on issues and proposals that have been presented previously in the assembly.
If new elections are held, other questions perhaps need to
be considered, such as how to separate power sharing in
government from negotiations. The proportional representation provision is already contested by the Congress.
Abolishing it is not the answer, but it clearly needs to be
redesigned to allow for more meaningful representation.109
2.    Improving broader negotiations
Future negotiations clearly need to be more transparent,
inclusive and responsive. Parties need to make three kinds
of efforts.
Broad-based consultations should take place. Parties must
speak clearly and openly to the public about the issues on
the table and the debates around them. The constitution
has been delayed by years and there is perhaps not enough
time forthe large village-level consultations that were once
envisioned. Yet, open meetings in districts, with local and
national leaders, can take place even as politicians are
muddling around in Kathmandu trying to find a way out
ofthe present morass. It would be particularly useful to
have mid-level politicians who were deputed to the various thematic committees to conduct these information sessions. Most made a good effort in the assembly. They are
reasonably well informed, used to speaking with each other,
and appear slightly less tainted than top leaders.
109 Ranked lists would be a step in the right direction. The quality
of participation of members who entered the assembly through
the quota system, particularly women, Dalits and some janajatis, has been criticised by many quarters, including the groups
these members are supposed to represent. This is in large part
because the parties chose candidates who would toe the party
line, rather than be useful participants with public legitimacy.
See also Crisis Group report, Nepal's Expanding Political Matrix, op. cit, Section VA.
Consultations should also take place at the local level.
The federalism negotiations could be expanded outside
only a putative Constituent Assembly and take place at
various levels. "Some parties are calling for sarvadaliya
[all-party] roundtables or talks, but actually, the way forward will have to be sarvapakshiya [multi-sided], so groups
not in the assembly have a voice", a UML janajati leader
said.110 Some negotiations, such as on specific contested
territories in the far west or the eastern Tarai, can take
place in those very areas; local ideas can contribute to regional solutions. On complex questions such as outlets
from the hills to India through Tarai districts, academic or
expert opinion, even if it is often politicised, should help
inform political decisions. There will need to be more discussions about the relations between the proposed states
and between the states and Kathmandu with regard to
trade and taxation; local entrepreneurs and larger business
interests could be consulted so they too feel less threatened.
Inclusion needs to gain clarity in the debate. Policy discussions urgently need to be initiated on inclusion measures
and classification of groups before these questions resurface through popular protests. The Brahmin-Chhetri push
to be classified as indigenous was about inclusion as much
as it was about federalism. The indigenous category needs
to be clarified and the viability of provisions like the International Labour Organization's Convention 169 which
relates to the right to self-determination deserves discussion. The pro-federalism parties have not yet reached out in
any meaningful way to the Dalit or the women's caucuses.
For both, among the most disadvantaged in Nepal today,
the extent to which federalism can generate inclusion matters more than abstract debates about federalism.111
Although federalism is the stickiest issue, other factors
influenced the end ofthe assembly and will affect future
First, parties were divided on the form of government.
The Maoists pushed for a directly elected president, arguing that this would lend stability in comparison to endless
coalition politics. The calculation is also that this system
would best serve party Chairman Prachanda's personal
ambitions. The Congress countered that it would lead to
authoritarianism. A "mixed" or "semi-presidential" system was decided on, with a directly elected president and
Crisis Group interview, UML janajati leader, Kathmandu,
June 2012. There are others who echo this demand. Crisis Group
interviews, Congress member, Madhesi negotiator, Kathmandu,
June 2012.
1:: For more on Dalit dynamics and women's participation, see
Crisis Group Report, Nepal's Expanding Political Matrix, op.
cit, Sections V.A and V.B.
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a prime minister elected by parliament. This decision was
thought the best compromise, although it was likely to give
rise to two power centres and potentially crippling power
struggles. In the final gasps of discussions on federalism,
the Congress said it would withdraw from the agreement on
the semi-presidential system, suggesting a trade-off with
federalism discussions.
Secondly, thejudiciary had also been much exercised over
provisions related to it in the new constitution. The Maoists proposed political appointments at every level, and a
constitutional court. Critics said this would open the courts
to even greater politicisation than now and said nominations and promotions of judges should continue to be based
on seniority only, setting aside ability and track record.
After consultations with the judiciary, the compromise
was a constitutional court with a term limit.112 Yet, some
argue that this episode damaged relations between the judiciary and the parties, particularly the Maoists, and influenced
the Supreme Court decision against further extension of
the assembly.
E. Game Changers
The parties' lack of organisation, fragmented decisionmaking and leadership crises will determine how the coming months play out.113 But other factors could change the
game significantly.
Violence: There has been no significant violence since the
assembly ended, but any episode of communally tinged
violence followed by perceptions of a biased police response
or violent provocations could put an unpleasant end to the
parties' dithering.
According to the agreement the parties reached on 15 May
2012 in consultation with members of the judiciary, the Supreme Court and the Constitutional Court were to have equal
status and both would be headed by the chief justice. The Constitutional Court would have jurisdiction over disputes between
the states, between the states and the centre, and between states
and local governments, while the Supreme Court would deal
with all other constitutional issues. In addition to the chief justice and the next two most senior justices ofthe Supreme Court,
the Constitutional Court would also include two constitutional
experts nominated by cabinet. This, it was argued, would give
the Constitutional Court a "political character" and differentiate
it from the Supreme Court. Justices to the Supreme Court are
nominated by the Judicial Council. Crisis Group telephone interview, constitutional lawyer, Kathmandu, August 2012. See
also "Draft of agreement among parties", The Kathmandu Post,
16 May 2012.
113 For more on the parties, see Crisis Group Report, Nepal's
Expanding Political Matrix, op. cit.
Although there is widespread anger at what is seen as the
irresponsibility ofthe political elite, confusion about what
happened and uncertainty about what comes next mean
there are no clear targets for immediate protests. However,
clashes could occur between opposition and ruling coalitions; between pro- and anti-federalism groups; locally between members of identity-based organisations; as well as
between the two Maoist parties or the two Madhesi fronts.
Provocative but anonymous acts of violence targeting
ordinary people have the potential to ignite tensions and
could be depicted as having ethnic undertones. "Ethnic
tensions will definitely rise again when it comes time to
decide on [state restructuring] issues", a commentator in
Sunsari said.114
Groups could attempt to assert their presence and push
their causes at the local level. In recent years, an increase
in public programs, declaration of "ethnic constitutions",
symbolic announcements of new states, and biased local
media have sparked violence, as have rumours of atrocities
by protesting groups. Symbolic acts and inflammatory
rhetoric play a critical role.115 So far, urban areas and areas
with mixed populations along Nepal's main highway are
more volatile. But the new pro- and anti-federalism alliances
could increase the risk of violence and tensions could spill
over to new areas.116
Many of these scenarios depend on whether the response
ofthe state security forces is perceived as balanced and
proportionate or not. Political agitation also becomes more
extreme, violent and frequent when movements have a
martyr. The response of successive governments since
2007 has been to sign agreements promising to meet agitators' demands. The impracticality of this approach was
demonstrated in May 2012, when the government signed
many pacts, some mutually contradictory, with a range of
Without a legislature and only a short-term budget, the
balance that parties had reached at the district level will
change. For the last two years, there has been little violence between the parties at the local level, in large part
because of agreements to share the development budget
and tenders. Now, parties from the ruling coalition may feel
emboldened to break these deals. Most parties also have
"incentive-driven" cadres on the rolls, whose careers are
114 Crisis Group interview, Sunsari, June 2012.
115 The United Limbuwan Front, an alliance of Limbuwan activist groups and parties, has already announced a Limbuwan
state and released the "Interim Limbuwan Constitution" on 26
May 2012. Crisis Group telephone interview, Limbuwan leader, Sunsari, June 2012. In the far west too, signs have gone up
welcoming visitors to the Unified or Undivided Far-West state.
116 The city of Pokhara for example, is not often considered a
hotbed of ethnic or communal tension. Yet, in May 2012, Chhetri
activists and ethnic activists clashed there.
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in petty crime or enforcement or who depend on tenders
for government work.117 These individuals may have to
seek alternatives. If an election seems to be on the horizon,
all parties will be fundraising and muscling in on each
other's turf even before campaigning begins.
The president: The president's position is ambiguous.
Constitutionally, President Ram Baran Yadav is a ceremonial figure, but he remains a potential power centre. For
example, in early August he refused to endorse ordinances
forwarded by the government to update and amend election laws. He argued that there first needed to be consensus among the parties on the way forward. Shortly after
the assembly ended, he stated that the prime minister was
a "caretaker" only. This was controversial, as the president
himself is also caretaker, by virtue of having been elected
by the last assembly. President Yadav sparked controversy
in 2008 and 2009, when he was accused of supporting positions taken by his party, the Nepali Congress.118 In recent
years, he has rehabilitated his image to a large extent, notably after his role in the army chiefs reinstatement in 2009.119
President Yadav is under significant pressure from the
opposition Congress and UML to help facilitate a change
of government. The president holds the power to "remove
obstacles" and he is also seen by some as the "last resort".120
If no political consensus is reached, he will almost inevitably act. The opposition parties will be tempted to prolong the stalemate to keep this option open.
The Supreme Court: The judiciary's actions in connection with the assembly are seen by many as overreaching
or activist. Faced with the uncertain post-assembly scenario, the court has tried to backpedal, asserting that a solution
See Crisis Group Asia Report N° 194, Nepal's Political Rites
of Passage, 29 September 2010, Section III.B.l.
118 For example, see Crisis Group Report, Nepal's Future: In
Whose Hands?, op. cit, Section II.C and Crisis Group Briefing,
Nepal's Peace Process: The Endgame Nears, op. cit., Section VIII.
1:9 President Yadav came under a cloud for reversing then-Prime
Minister Prachanda's dismissal of the former chief of army
staff, Rookmangad Katawal, in early 2009. See Crisis Group
Report, Nepal's Future: In Whose Hands?, op. cit, p. 6.
120 The power to "remove obstacles' is generally understood to
mean that the president's sanction could allow the parties to
override procedural and some constitutional obstacles. Article
158, The Interim Constitution of Nepal, op. cit. Some politicians
call him the "last resort", arguing that in a situation where all
actors are discredited or the parties simply cannot agree, there
is at least some constitutional cover for the president to act.
However, since the president's role is ceremonial, he should in
theory act only on the recommendation of cabinet. The article
granting the president this power is a relic ofthe constitutional
monarchy. The power to "remove obstacles" is constitutionally
granted, but there are no limits placed on it. Under the king,
this meant that the palace could do as it wished, at the end of
the day. Article 127, The Constitution of Nepal, 1990.
to the present crisis lies with the politicians and ruling in
favour ofthe government's proposal to pass the budget
through ordinance. Yet, ifthe government oversteps a notional line between the prerogatives of a regular government and a caretaker one, the court's loyalties will also be
severely tested.
Governance: The absence of a legislative body will pose
serious challenges to the government, as the difficulty to
pass the partial budget in July 2012 illustrated. Other governance issues could arise and it is difficult to envision
the parties setting aside their differences in the interests of
governance. As with the partial budget, the government
will have to issue ordinances, which the president will have
to approve, and this could cause tensions between the president and prime minister.
The royalist right and former king: The former king,
Gyanendra Shah, has occasionally pronounced grimly on
the state of Nepal's politics and governance since he was
deposed in 2006. However, he has usually ruled out a return or a political role. Until the assembly ended, that is.
In early July 2012, he said that ifthe people so wished, he
would return - not as a political figure, but in his original
role as the king of Nepal. Greater visibility bolsters efforts ofthe few conservatives who support the monarchy
publicly. Some in the royalist group do not believe the
king can or even should return. But they raise the monarchy issue tactically to garner support for restoration ofthe
1990 constitution with the monarchy removed or made
purely ceremonial. The chances of this happening are also
slim, but such talk adds to the confusion and polarisation.
The Nepal Army: There will be little domestic and no
international support ifthe army moves in support of any
actor, whether the president, the opposition or the former
king. The army also does not seem to wantto intervene.
Yet, the Nepal Army is still a relatively autonomous player. After the assembly ended, it felt the need to state that
it would follow the orders of any "legitimate government".
This pronouncement harks back to the army's dangerously dismissive attitude toward civilian governments earlier
in the peace process - it is not the place of the security
forces to judge the legitimacy of a government.121
In 2011, the Nepal Army became cooperative, to a certain
extent, on the issue of integrating some former Maoist combatants.122 Although it has also been careful not to infringe
See, for example, "Euta jarnel kahilyai ritayard hundaina",
Nagarik, 23 January 2010.
122 Forbackground on security sector issues and particularly the
question of Maoist fighters and the end ofthe Maoist army, see
Crisis Group Reports, Nepal: From Two Armies to One, and
Nepal's Expanding Political Matrix, both op. cit.
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on parliamentary debates,123 it has been implicated in politics in one way or another. Some argue that the deal on the
fighters was a quid pro quo between the Maoists and the
army.124 The army, for long steadfastly against any integration, agreed to take in more combatants than expected
in a new directorate. The government in turn signed off
on a restructuring plan and particular high-level promotions.125 The broader restructuring plan would, by some
accounts, inflate the officer ranks more than strictly necessary.126 This proposal was rejected by a parliamentary
committee, which argued that changes should not be made
before a new national security council was in place and
could evaluate the new context.127 The assumption was that
the constitution would be issued and that Nepal would soon
be on the road to creating new states.
However, far fewer than the expected 6,500 former Maoist fighters ended up opting for integration into the army.
This means the government and the army will have to come
up with an alternative to the directorate that was to have
been 18,500-strong and headed by a lieutenant general.
But regardless ofthe Maoist fighters, the army now insists on the directorate, which is an important part of its
restructuring plan.128 Relations between the Maoists and
In 2009, the then-chief of army staff, General Rookmangad
Katawal, made an unsolicited presentation about the Nepal Army' s
views on constitutional issues to the assembly's committee on
preservation of national interests. "Senalai rajnitik vivadma
natana", Kantipur, 14 February 2009. For more on General Katawal and the Nepal Army' s resistance to the peace process, see
Crisis Group Report, Nepal's Future: In Whose Hands?, op.
cit, Sections IVA and IVB. When the polarisation between
the Maoists and other parties was at its worst in 2009 and 2010,
the current chief of army staff, Chhatra Man Singh Gurung,
was open in his support for non-Maoist parties. Since 2011,
however, the Maoists and the army have become reasonably
close. Of peace process issues, the inclusion agenda remains
sharply contested by the army, which objects to recruiting more
Madhesi youth, for example. "NA already inclusive enough:
Army chief, The Kathmandu Post, 5 July 2011; "Army unhappy
about decision", The Kathmandu Post, 22 December 2011.
124 Crisis Group interview, retired senior Nepal Army officer,
Kathmandu, June 2012. See also Dhruba Kumar, "Senapunar-
samrachana ra rajyavyavastha", Kantipur, 4 May 2012.
125 "CoAS tells House panel of need to re-do 'obsolete' Army
structure", The Kathmandu Post, 30 April 2012. These reportedly included a relative ofthe chief of army staff, Chhatra Man
Singh Gurung. The promotion could have changed the succession race. "Army restructuring", Republica, 10 May 2012.
126 Crisis Group interview, retired senior army officer, June 2012.
Dhruba Kumar, "Sena punarsamrachana ra rajyavyavastha",
op. cit, Section IVB.
127 The decision was made by the state affairs committee on 8
May 2012. "SAC shelves Army restructuring plan", The Kathmandu Post, 9 May 2012.
128 Crisis Group interview, retired senior army officer, Kathmandu, June 2012.
some top officers may have thawed, but they have not become allies and old resentments could resurface.
General Gaurav Shumsher Rana became acting chief of
the Nepal Army in August 2012. He replaces the outgoing
head, General Chhatra Man Singh Gurung who retires in
September.129 The appointment ended speculation that the
succession could be disputed or used by parties to counter
each other. There is a general perception that General Rana
and the Maoists are hostile to each other and that he represents a section ofthe army sceptical ofthe changes underway in Nepal. To allay these concerns, General Rana
should reject all calls to intervene on behalf of political
actors and refrain from speaking on constitutional questions. Similarly, politicians must realise that solutions engineered with the support ofthe army will be unacceptable
and worsen the polarisation.
The Nepal Army appears willing to play a positive role in
quickly resolving the future ofthe Maoist fighters who
have opted for integration into the army.130 Such steps will
elevate the army's image. When the parties start working
again on the broader peace process, General Rana will be
faced with a process the army has deep reservations about,
namely its democratisation to become more accountable
to civilian oversight, accept changes in its recruitment
procedures to better represent Nepal' s diverse population,
and its downsizing.131
129 General Gurung handed over control ofthe Nepal Army to
General Rana before he took his customary leave one month
before retirement. "Gen Gurung hands over responsibility to
Rana", The Kathmandu Post, 10 August 2012.
130 Crisis Group interview, Kathmandu, August 2012.
131 For more on the succession and General Rana's challenges
ahead see Sarojraj Adhikari, "Jimmevariko suruvat ra samapti",
Kantipur, 11 August 2012 and Prashant Jha, "Reform agenda",
The Kathmandu Post, 8 August 2012.
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The most significant international actors in Nepal are its
neighbours, India and China. The influence of other international actors on Nepal's peace process has waned significantly in recent years, as Nepali politicians have negotiated between themselves and appealed to neighbours for
help. India remains a critical actor that can often help
swing decisions one way or another. China remains interested, but its influence on day-to-day politics is a recent
phenomenon. The UN's four-year-long political mission
ended in January 2011, but its department of political affairs
maintains a small presence in Nepal.
A. India and China
Although India's role was not visible directly around the
end ofthe assembly, a section ofthe Indian establishment
supported the holding of fresh elections to determine a
new balance of power, arguing that the end ofthe assembly would not be disastrous. Indian frustration with the
ineptitude ofthe Congress and UML in negotiations, their
inability to manage their parties and their poor performance as opposition contributed to this position. So did the
sympathy of some Indian actors for federalism.
Since the assembly ended, New Delhi has appeared largely agnostic on whether elections should be held or ifthe
assembly should be revived. However, India has begun
pushing for an all-party government, although it has been
supportive of Prime Minister Bhattarai for almost a year.132
This position gives some impetus to the Congress and
UML's demands that the government resign. Without a
parliament, dislodging the government is a difficult proposition. But Prime Minister Bhattarai can hold out for only
so long in the face of broad-based pressure.
Some senior Maoist leaders are also reportedly concerned
that India has become less enthusiastic than it was about
identity-based federalism. This pullback could be due to
concerns about the impact and possible spillover across
the border into India of violence between groups over
The suggestions of Indian preference for an all-party government come in the context of politicians and government officials noting an unprecedented degree of Chinese
involvement in Nepalese politics.134 This has taken a number of forms. An immediate irritant for many, including
New Delhi, was the recent appointment by Prime Minis-
Crisis Group telephone interview, analyst, Kathmandu, August 2012.
133 Crisis Group interviews, Kathmandu, August 2012.
134 Crisis Group interviews, Kathmandu, August 2012.
ter Bhattarai of a chief secretary of government who is
perceived to have a pro-China tilt.135
There are increasing reports from senior leaders, government officials and some in the diplomatic community of an
emerging Chinese position on federalism.136 It is thought
that China believes that federalism along identity lines and
the creation of a large number of relatively strong and autonomous federal states along Nepal's northern border will
weaken the Nepali state' s ability to control what in Nepal
is called "anti-China activity", the official language used
to describe pro-Tibet activism.137
India's position on the options open to the parties is challenged by more than Chinese involvement. The Congress
and UML could intensify protests. The leverage that the
new Maoist party will have is yet unclear, though it could
be a visible and vocal challenger. A resurgent right wing
or aggressive identity-based movements that ride the wave
of discontent against the main parties could mean additional protests or some violence by non-party actors. Anti-
government and nationalist sympathy could increase anti-
Indian public displays, particularly by the new Maoists
and monarchists. This has variable impact on New Delhi's decisions or behaviour with regard to Nepal, but it
could give courage and coherence to the traditional parties'
anti-government actions. An irritable army underpressure
from politicians or a president who argues that he is being
pushed to act could also win more influence.
Yet, India's response cannot simply be to support those
forces that look the most coherent or clear; these will almost by definition be pushing narrow solutions such as
presidential intervention. Nor can it be driven solely by
fears of Chinese influence. India's most constructive role
now is to encourage all the parties, and especially those in
On 29 July 2012, the prime minister appointed Lila Mani
Poudel as chief secretary. Poudel is a former consul general to
the Tibet Autonomous Region and is thought to have high-level
connections in Beijing. Crisis Group telephone interview, foreign ministry official, Kathmandu, August 2012; Anil Giri,
"Cabinet picks Poudel as acting chief secy", The Kathmandu
Post, 30 July 2012. India's unhappiness with Prachanda's apparent cosying up to Beijing when he was prime minister in
2008 and early 2009 was one factor that forced his resignation.
See Crisis Group Report, Nepal's Future: In Whose Hands?,
op. cit, Section V.A.
136 Crisis Group interviews, Kathmandu, August 2012. When
the vice minister of the Communist Party of China's International Department, Ai Ping, visited Nepal in June 2012, he cited China's difficult experience with developing states equally
to prioritise "infrastructurally feasible" states. Quoted in '"Focus on economy, not ethnicity'", The Himalayan Times online
edition, 30 June 2012.
137 Crisis Group interviews, Kathmandu, August2012. See also
Deepak Gajurel, "Chinlai baipas garnasakne thaun chaina",
Drishti, 7 August 2012.
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the mainstream, to first make up with each other and then
reach out to the constituencies they habitually ignore.
China could be entering uncharted territory if it is expanding its sphere of influence in Nepal. It would be useful for
any actor attempting this to study India's experience:
while New Delhi has undeniable and sometimes definitive influence, Nepali actors are also adept at taking what
is useful from foreign patrons and then doing as they wish.
There is no linear relationship between influence over
Nepali actors and specific outcomes.
India and China are unlikely to allow their positions in
Nepal to significantly affect bilateral relations. They are
both wary of an increase in engagement by European
countries, the U.S., orthe UN's political office. Some political analysts in Kathmandu speculate that the Nepal-
India-China dynamic could develop in new ways, if all
three decide that limiting other actors' involvement is a
useful strategy.138
B. Other International Players
European bilateral actors, the development side of the
UN, and other non-Asian donors are increasingly feeling
the pressure ofthe changing political context. Members
of the traditional establishment sharply criticise donor
projects aimed at inclusion and federalism or targeting
communities which are now making their voices heard.139
Donors are accused of having stoked ethnic sentiment or
having promoted ethnic federalism against the wishes and
best interests of Nepalis.140 These allegations discredit/'a-
najati groups, presenting them as proponents of a donor-
driven agenda. The more extreme end ofthe right-wing,
royalist and Hindu loyalist spectrum also holds European
Crisis Group interviews, Kathmandu, August 2012.
139 The long-running support of the UK aid agency, the Department for International Development (DFID), for NEFIN
has been particularly controversial. When NEFIN organised a
bandh, or shutdown, in May 2011, the agency pulled its funding, saying that it could not support such political activity. Senior Congress politicians refer to "our foreign friends" responsible for the loss ofthe assembly and imply that European donors
who supported programs on inclusion or the activities of caucuses in the Constituent Assembly were irresponsible. Janajati
interaction program; Crisis Group interviews, Congress leader,
academic, Kathmandu, June 2012.
140 Crisis Group interviews, Congress leader, Kathmandu, June
2012; royalist analyst, Kathmandu, June 2012. Also see, Santosh Ghimire, "Adivasijanajati ra datri nikayako sahayog", Naya Patrika, 30 January 2012; Shekhar Koirala," Jatiya adharma
sanghiyata ghatak", Kantipur, 19 January 2012.
donors responsible forthe increase in proselytisation and
the establishment of anew secular state.141
There is dubious merit in these claims. Whether through
language rights movements, cultural organisations or more
overt political activity since the 1990 pro-democracy movement, identity-based activism has a considerably longer
history in Nepal than donor support for it.142 There is also
no evidence that donors "ask the Maoists to push secularism" or "fund churches" as some allege143 though it is quite
possible that donor oversight of projects they fund leaves
something to be desired.
Donors now seem to be backing away from inclusion
issues. Although no donor has publicly done so yet, some
are keeping a consciously low profile or postponing publication of studies on the correlation between ethnicity
and living standards. An assessment that releasing such
information will contribute to tensions could be a factor
in such decisions, as could security of staff144 Chhetri and
Hindu activists, in particular, sometimes make threats of
physical harm against European donors and the UN.145
Yet lying low and concealing information only reinforces
the perception that donors are not transparent because
their intentions are mala fide.146
The UN development system is also under pressure to
scale back its work on support to federalism, social inclusion and justice issues. The UN's Development Assis-
For example, see JeevanR. Sharma, "The India factor", Republica, 28 July 2012; Amish Raj Mulmi, "Nepali Hindutva",, July 2011.
142 For some background, see Crisis Group Report, Nepal: Identity Politics and Federalism, op. cit, Sections II.A-C
143 Crisis Group has heard this claim in Kathmandu and in districts during interviews with Congress members in particular,
but also members of other parties including the UML and RPP(N).
Crisis Group interviews, Kathmandu, October 2011 -July 2012;
Dadeldhura, May 2012.
144 Some activists and journalists allege that the release of a
World Bank and DFID report which examines in detail the correlation between identity and exclusion or marginalisation has
been deliberately withheld due to pressure to do so from powerful members of upper-caste groups. Crisis Group interviews, Kathmandu, June, August 2012. "Identity groups fail to recognize equal
rights of others: Report", Republica, 22 August 2012; "Elites
find it difficult to let go uni-culturalism: Report", Republica, 21
August 2012; "Pressure from 'hill elites' halts DfTD exclusion
report", Republica, 20 August 2012. Employees of donor organisations speaking to Crisis Group in their personal capacity
said they believed DFID did not want to inflame communal sentiment. Crisis Group interviews, Kathmandu, May and June 2012.
145 Crisis Group interviews, Shiv Sena Nepal leader, Kathmandu, November 2011 and Chhetri activist, Jhapa, June 2012.
146 Crisis Group interview, ethnic activist, Kathmandu, June 2012.
See also Prashant Jha, "The battle ahead", The Kathmandu
Post, 13 June 2012.
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Crisis Group Asia Report N°233, 27 August 2012
Page 29
tance Framework determines the organisation's budgetary
allocations and priorities and sets the agenda for the UN
and many bilateral aid agencies. The next planning period
runs from 2013 to 2017 and the UN consulted extensively
on the plan document with the National Planning Commission (NPC). In early August 2012, the NPC reportedly
wrote to the UN Resident and Humanitarian Coordinator
asking that references to structural discrimination, religious
minorities, statelessness, weak rule of law and impunity be
removed ortoned down.147 The NPC also returned a heavily edited version ofthe document to the UN, which purged
the text of references to discrimination against ethnic minorities, the Hindu caste system and the political domination of some ethnic groups. It also suggested that rather
than "vulnerable groups", the plan focus on "poor and disadvantaged groups".148 The UN says the document has
not yet taken final form.149
Activists who work on identity issues and some development workers are angry about what they see as a shift in
donor priorities. They argue that by supporting social
inclusion projects and affirmative action in their own recruitment policies, donors have only responded to the disparities identified by their research, often based extensively
on the Nepali government's statistics.150 The political settlement proposed in the Comprehensive Peace Agreement
(CPA) and Interim Constitution recognised that identity-
based discrimination is a significant challenge for the
country. To argue that there is no structural discrimination is to roll back a major peace process commitment.
Some donors have also supported the constitution-writing
process. Some of this has been public, such as the UN's
support to "participatory constitution building" and International IDEA's for the janajati caucus.151 Other initiatives have supported or facilitated informal negotiations
between mid-level leaders on constitutional and other
issues.152 All programs have been criticised for not being
neutral or having actively promoted agendas detrimental
The NPC is officially headed by the prime minister. It appears
as if Prime Minister Bhattarai was, however, unaware of the
commission's actions with regard to the UN planning document.
Crisis Group interviews, Kathmandu, August 2012.
148 Crisis Group interviews, Kathmandu, August2012. Prashant
Jha, "Walk the talk", The Kathmandu Post, 22 August 2012.
"NPC undermines minorities' plight", The Himalayan Times,
15 August 2012.
149 Crisis Group email interview, August 2012.
150 For example, see "Unequal Citizens: Gender, Caste and Ethnic Exclusion in Nepal - Summary", DFID/World Bank, 2006.
151 International IDEA has supported the various caucuses in the
assembly, including the janajati group, but this has been less
152 Crisis Group interviews, former Maoist and Congress assembly members, two participants in one such series of negotiations. Kathmandu, May-July 2012.
to Nepal. Like the suggestion that janajati politics is a foreign invention, these accusations are debatable and often
depend on which side ofthe federalism debate one takes.
Yet, international players' engagement with constitution
writing can be criticised. Two kinds of activity require
closer attention. One is the common donor habit of scooping up select assembly members and taking them to various parts of the world, for example on "study tours" to
see how other countries deal with federalism. Some in
Nepal see this as distraction that diverted assembly members' attention from the difficult tasks at hand.
The other is donor support to negotiations that took place
away from the assembly. Donors who supported a few
such initiatives say that they provided a neutral and confidential area for discussions. Away from the public eye,
negotiators trusted by party leaders could speak freely to
each other and seek expert advice if they needed it. This,
it is argued, kept the channels of communication open between the parties.153 While there is some merit in this reasoning, these negotiations added one more layer of secrecy to an already un-transparent process of deal-making on
constitutional issues and took it a step further away from
the assembly. At this stage ofthe peace process, donor-
funded confidential talks also seem unnecessary. There
are enough Nepali public and semi-private spaces for leaders and negotiators of all levels to speak to each other. Finally, given how undemocratic Nepal's political parties
can be, the impact of such discussions on final decisions
is debatable. At the very least, independent evaluations of
the impact of such efforts should be conducted.
Whether through a revived assembly or a new one, the
debate and negotiations on constitutional issues are going
to become more fraught. Many more actors will compete
for a seat at the table, and their tactics could be questionable. Patience for closed-door, top-down decisions is waning. Donors will have to balance security concerns with
continuing their work. They will also have to be more responsive to critiques rather than just ignoring them. They
must also make sure that any further support to constitution
writing or negotiations is transparent and open to public
Since the start ofthe peace process, donors have carried
on as if it were business as usual and the CPA was an
apolitical wish list. If reminder were ever needed that all
development is indeed political, Nepal's donors, the international community and the country's own bureaucrats
have received it now.
153 Crisis Group interviews, three NTTP dialogue participants,
Kathmandu, January, March, June, 2012.
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 30
The 2008 election to the Constituent Assembly, with the
unexpected Maoist win and Madhesi consolidation, was
the first defining moment of Nepal' s transition. May 2012
was the second. Whether the Constituent Assembly is revived or the country elects a new one, the context ofthe
peace process has fundamentally changed. Identity may
become simply one of many ways of doing politics in
Nepal. But until there is a new constitution and there are
signs that it is being implemented, it will remain the most
significant issue. The parties have to pull off a delicate
balancing act. Denying the concerns of historically marginalised groups will radicalise the debate and harden the
polarisation. Addressing these concerns could mean, in
the short term, considerable losses to some traditionally
elite constituencies. These are genuine fears, and need to
be softened. In the long term, identity-based groups will
also need to broaden their political repertoire and acknowledge the diversity in their own ranks if they want to build
strong political institutions and networks. The risks that
all this will feed multiple conflicts are clear.
Discussions on inclusion and federalism have sharpened
the divisions between many groups. Yet not all the fallout
has been negative. There is an unprecedented degree of
public discussion about socio-political issues in Nepal.
Fears have increased, but so has knowledge. Nepalis are
asking their politicians more questions and there is room
to make public debate informative and constructive. More
practically, many members ofthe Constituent Assembly
did a significant amount of work on the wide array of constitutional issues and worked across party lines through
many knotty questions. This knowledge should be shared
with the public and could help when the constitution writing process resumes.
There are many hands reaching forthe gates and many
voices clamouring to be heard. It is perhaps too much to
expect selfless sacrifice from leaders or parties. But for
the sake oftheir own survival, they must at least sit down
with the new players and talk. The parties must also demonstrate genuine, practical commitment to the democratic
values they claim to hold dear. Some political actors may
have to accept short-term losses in exchange for remaining
viable in the long-term. If they do not, fringe and radical
players, old and new alike, are waiting to take their place.
Nepal is undergoing a democratic transition and its political parties must use this to enhance the practice of participatory democracy at all levels. The constitution is at the
heart of this process. Difficult as it might be, the project
cannot be abandoned.
Brussels/Kathmandu, 27 August 2012
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 31
The boundaries and names shown and the designations
used on this map do not imply official endorsement or
acceptance by the United Nations.
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ol 84 degree.-.; :.■«:.; t■■.':/.'■ ;.(.v i-vM standard parallels ol 24
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Map No. 4304    UNITED NATIONS
January 2007 (Colour)
Department of Peacekeeping Op
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 32
Constituent Assembly - unicameral
body tasked with drafting a new constitution, also served as a legislature-
parliament, term ended on 27 May
Members ofthe group traditionally
considered the highest caste hill-origin
Hindus, broadly called upper caste.
Brihat Madhesi Morcha
Broader Madhesi Morcha - smaller of
the two fronts of Madhesi parties, currently in the opposition, has reasonable
grassroots-level support and influence
in the Madhesi population.
Members ofthe group traditionally
considered the second highest caste
hill-origin Hindus, broadly called
upper caste.
Nepali Congress - second largest party
in the assembly that ended on 27 May,
a major traditional player in Nepal's
democracy, strongly against ethnicity-
based federalism.
Comprehensive Peace Agreement -
November 2006 agreement officially
ending the decade-long war, signed
between the government of Nepal and
the Maoists, then called the Communist Party of Nepal-Maoist
Members ofthe group of Hindus considered at the bottom of the caste ladder. Untouchability has been outlawed
but Dalits still face many kinds of discrimination.
Department for International Development - UK government's department responsible for promoting development and the reduction of poverty.
Recently renamed UK Aid.
First Past the Post - an electoral system
in which the candidate with the most
votes in a constituency, not necessarily
a majority, wins.
International IDEA
International Institute for Democracy
and Electoral Assistance - intergovernmental organisation supporting sustainable democracy worldwide.
An umbrella term for a large number
of ethnic groups, most from the hills,
outside the caste Hindu system, claim
distinct languages, cultures and often,
historical homelands.
Janajati caucus
Cross-party caucus of indigenous assembly members formed to pressure
the national parties to pass a federal
model acknowledging identity.
An umbrella term for a population of
caste Hindus residing in the Tarai who
speak plains languages and often have
extensive economic, social and familial
ties across the border in northern India.
Madhesi Morcha
Samyukta Loktantrik Madhesi Morcha
- alliance of five Madhesi parties,
Madhesi Janadhikar Forum (Loktantrik), Madhesi Janadhikar Forum
(Ganatantrik), Tarai Madhes Loktantrik Party, Tarai Madhes Loktantrik
Party (Nepal) and Sadbhavana Party.
Its primary agenda is federalism and
more equitable representation of
Madhesis in state institutions. Does
not include MJF (Nepal) and Sanghiya
Sadbhavana Party, two other significant Madhesi parties.
Unified Communist Party of Nepal-
Maoist, or "the establishment party" -
largest party in the now defunct assembly, came above ground at the end
ofthe war in 2006.The party split in
June 2012. The parent party retains
this name, the new party is called the
Communist Party of Nepal-Maoist
MJF (Nepal)
Madhesi Janadhikar Forum (Nepal) -
party under the leadership of original
MJF chairman, Upendra Yadav.
Followers of the religion of Islam who
can be of both plains and hill origin but
predominantly live in the Tarai.
Nepal Army, until 2006 the Royal
Nepal Army.
Nepal Federation of Indigenous Nationalities - an umbrella organisation
of indigenous nationalities, formed in
1991, has a presence in over 60 of
Nepal's 75 districts and over 2,500 of
almost 4,000 Village Development
New Maoist party
Communist Party of Nepal-Maoist or
CPN-M - formed by Mohan Baidya
"Kiran" in June 2012 after vertical split
from the Unified Communist Party of
People's Liberation Army - the army
ofthe Maoist party, which fought the
state for ten years.
Proportional Representation - an electoral system where the seats a party
wins are proportional to the number of
votes it receives.
Rastriya Prajatantra Party (Nepal) -
only party in the assembly that demanded restoration ofthe monarchy,
also demanded referendum on secularism and federalism, led by monarchist
Kamal Thapa, split from the Rastriya
Prajatantra Party in 2008.
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012 Page 33
State Restructuring Commission
Commission formed in November
2011, tasked with recommending an
appropriate state restmcturing model,
presented two reports in January 2012
- a majority report with ten states and a
minority report with six states.
State restructuring committee
Committee on State Restmcturing and
Distribution of State Power - one of
the assembly's ten thematic committees, submitted its report in January
2010 with a fourteen-state state restmcturing model.
Members of a high caste hill-origin
Hindu community, had close ties with
the Shah dynasty.
Members of the indigenous populations ofthe Tarai plains.
Communist Party of Nepal (Unified
Marxist-Leninist) - third largest party
in the last assembly.
Upper caste
Term used in the federalism debate to
refer to members of the highest caste
hill-origin Hindus, usually Brahmins or
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 34
The International Crisis Group (Crisis Group) is an independent, non-profit, non-governmental organisation, with some
130 staff members on five continents, working through
field-based analysis and high-level advocacy to prevent and
resolve deadly conflict.
Crisis Group's approach is grounded in field research. Teams
of political analysts are located within or close by countries
at risk of outbreak, escalation or recurrence of violent conflict. Based on information and assessments from the field, it
produces analytical reports containing practical recommendations targeted at key international decision-takers. Crisis
Group also publishes CrisisWatch, a twelve-page monthly
bulletin, providing a succinct regular update on the state of
play in all the most significant situations of conflict or potential conflict around the world.
Crisis Group's reports and briefing papers are distributed
widely by email and made available simultaneously on the
website, Crisis Group works closely
with governments and those who influence them, including
the media, to highlight its crisis analyses and to generate
support for its policy prescriptions.
The Crisis Group Board - which includes prominent figures
from the fields of politics, diplomacy, business and the media
- is directly involved in helping to bring the reports and
recommendations to the attention of senior policy-makers
around the world. Crisis Group is chaired by former U.S.
Undersecretary of State and Ambassador Thomas Pickering.
Its President and Chief Executive since July 2009 has been
Louise Arbour, former UN High Commissioner for Human
Rights and Chief Prosecutor for the International Criminal
Tribunals for the former Yugoslavia and for Rwanda.
Crisis Group's international headquarters is in Brussels, and
the organisation has offices or representation in 34 locations:
Abuja, Bangkok, Beijing, Beirut, Bishkek, Bogota, Bujumbura, Cairo, Dakar, Damascus, Dubai, Gaza, Guatemala
City, Islamabad, Istanbul, Jakarta, Jerusalem, Johannesburg,
Kabul, Kathmandu, London, Moscow, Nairobi, New York,
Port-au-Prince, Pristina, Rabat, Sanaa, Sarajevo, Seoul, Tbilisi,
Tripoli, Tunis and Washington DC. Crisis Group currently
covers some 70 areas of actual or potential conflict across four
continents. In Africa, this includes, Burkina Faso, Burundi,
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Crisis Group receives financial support from a wide range of
governments, institutional foundations, and private sources.
The following governmental departments and agencies have
provided funding in recent years: Australian Agency for International Development, Australian Department of Foreign
Affairs and Trade, Austrian Development Agency, Belgian
Ministry of Foreign Affairs, Canadian International Development Agency, Canadian International Development and
Research Centre, Foreign Affairs and International Trade
Canada, Royal Danish Ministry of Foreign Affairs, Dutch
Ministry of Foreign Affairs, European Commission, Finnish
Ministry of Foreign Affairs, German Federal Foreign Office,
Irish Aid, Principality of Liechtenstein, Luxembourg Ministry of Foreign Affairs, New Zealand Agency for International Development, Royal Norwegian Ministry of Foreign
Affairs, Swedish International Development Agency, Swedish
Ministry for Foreign Affairs, Swiss Federal Department of
Foreign Affairs, Turkish Ministry of Foreign Affairs, United
Kingdom Department for International Development, U.S.
Agency for International Development.
The following institational and private foundations have provided funding in recent years: Adessium Foundation, Carnegie Corporation of New York, The Charitable Foundation, The
Elders Foundation, Henry Luce Foundation, William & Flora
Hewlett Foundation, Humanity United, Hunt Alternatives
Fund, John D. & Catherine T. MacArthur Foundation, Open
Society Institute, Ploughshares Fund, Rockefeller Brothers
Fund and VIVA Trust.
August 2012
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 35
Central Asia
Tajikistan: On the Road to Failure, Asia
Report N°162, 12 February 2009.
Women and Radicalisation in Kyrgyzstan,
Asia Report N°176, 3 September 2009.
CentralAsia: Islamists in Prison, Asia
Briefing N°97, 15 December 2009.
CentralAsia: Migrants and the Economic
Crisis, Asia Report N° 183, 5 January
Kyrgyzstan: A Hollow Regime Collapses,
Asia Briefing N°102, 27 April 2010.
The Pogroms in Kyrgyzstan, Asia Report
N°193, 23 August 2010.
CentralAsia: Decay and Decline, Asia
Report N°201, 3 February 2011.
Tajikistan: The Changing Insurgent
Threats, Asia Report N°205, 24 May
Kyrgyzstan: Widening Ethnic Divisions in
the South, Asia Report N°222, 29 March
North East Asia
North Korea's Missile Launch: The Risks
ofOverreaction, Asia Briefing N°91,
31 March 2009.
China's Growing Role in UN Peacekeeping, Asia Report N°166, 17 April
2009 (also available in Chinese).
North Korea's Chemical and Biological
Weapons Programs, Asia Report N°167,
18 June 2009.
North Korea's Nuclear and Missile Programs, Asia Report N° 168, 18 June
North Korea: Getting Back to Talks, Asia
Report N° 169, 18 June 2009.
China's Myanmar Dilemma, Asia Report
N°177, 14 September 2009 (also available in Chinese).
Shades of Red: China's Debate over North
Korea, Asia Report N°179, 2 November
2009 (also available in Chinese).
The Iran Nuclear Issue: The View from
Beijing, Asia Briefing N°100,17 February 2010 (also available in Chinese).
North Korea under Tightening Sanctions,
Asia Briefing N°101, 15 March 2010.
China's Myanmar Strategy: Elections,
Ethnic Politics and Economics, Asia
Briefing N°l 12, 21 September 2010
(also available in Chinese).
North Korea: The Risks of War in the
Yellow Sea, Asia Report N° 198,23
December 2010.
China and Inter-Korean Clashes in the
Yellow Sea, Asia Report N°200,27
January 2011 (also available in Chinese).
Strangers at Home: North Koreans in the
South, Asia Report N°208, 14 July 2011
(also available in Korean).
South Korea: The Shifting Sands of
Security Policy, Asia Briefing N°130, 1
December 2011.
Stirring up the South China Sea (I), Asia
Report N°223, 23 April 2012 (also
available in Chinese).
Stirring up the South China Sea (II):
Regional Responses, Asia Report N°229,
24 July 2012.
North Korean Succession and the Risks of
Instability, Asia Report N°230, 25 July
South Asia
Nepal's Faltering Peace Process, Asia
Report N°163, 19 February 2009 (also
available in Nepali).
Afghanistan: New U.S. Administration,
New Directions, Asia Briefing N°89,
13 March 2009.
Pakistan: The Militant Jihadi Challenge,
Asia Report N° 164, 13 March2009.
Development Assistance and Conflict in Sri
Lanka: Lessons from the Eastern Province, Asia Report N°165,16 April 2009.
Pakistan's IDP Crisis: Challenges and
Opportunities, Asia Briefing N°93, 3
June 2009.
Afghanistan's Election Challenges, Asia
Report N°171, 24 June 2009.
Sri Lanka's Judiciary: Politicised Courts,
Compromised Rights, Asia Report
N°172, 30 June 2009.
Nepal's Future: In Whose Hands?, Asia
Report N°173, 13 August 2009 (also
available in Nepali).
Afghanistan: What Now for Refugees?,
Asia Report N° 175, 31 August 2009.
Pakistan: Countering Militancy in FATA,
Asia Report N°178, 21 October 2009.
Afghanistan: Elections and the Crisis of
Governance, Asia Briefing N°96,25
November 2009.
Bangladesh: Getting Police Reform on
Track, Asia Report N° 182, 11 December
Sri Lanka: A Bitter Peace, Asia Briefing
N°99, 11 January 2010.
Nepal: Peace and Justice, Asia Report
N°184, 14 January 2010.
Reforming Pakistan's Civil Service, Asia
Report N°185, 16 February 2010.
The Sri Lankan Tamil Diaspora after the
LTTE, Asia Report N° 186, 23 February
The Threat from Jamaat-ul Mujahideen
Bangladesh, Asia Report N° 187, 1
March 2010.
A Force in Fragments: Reconstituting the
Afghan National Army, Asia Report
N°190, 12 May 2010.
War Crimes in Sri Lanka, Asia Report
Steps Towards Peace: Putting Kashmiris
First, Asia Briefing N°106, 3 June 2010.
Pakistan: The Worsening IDP Crisis, Asia
Briefing N° 111, 16 September 2010.
Nepal's Political Rites of Passage, Asia
Report N° 194,29 September 2010 (also
available in Nepali).
Reforming Afghanistan's Broken Judiciary,
Asia Report N° 195, 17 November 2010.
Afghanistan: Exit vs Engagement, Asia
Briefing N°l 15, 28 November 2010.
Reforming Pakistan's Criminal Justice
System, Asia Report N°196, 6 December
Nepal: Identity Politics and Federalism,
Asia Report N° 199, 13 January 2011
(also available in Nepali).
Afghanistan's Elections Stalemate, Asia
Briefing N°l 17, 23 February 2011.
Reforming Pakistan's Electoral System,
Asia Report N°203, 30 March 2011.
Nepal's Fitful Peace Process, Asia Briefing
N°120, 7 April 2011 (also available in
India and Sri Lanka after the LTTE, Asia
Report N°206, 23 June 2011.
The Insurgency in Afghanistan's Heartland, Asia Report N°207, 27 June 2011.
Reconciliation in Sri Lanka: Harder Than
Ever, Asia Report N°209, 18 July 2011.
Aid and Conflict in Afghanistan, Asia
Report N°210, 4 August 2011.
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 36
Nepal: From Two Armies to One, Asia
Report N°211, 18 August 2011 (also
available in Nepali).
Reforming Pakistan's Prison System, Asia
Report N°212, 12 October 2011.
Islamic Parties in Pakistan, Asia Report
N°216, 12 December 2011.
Nepal's Peace Process: The Endgame
Nears, Asia Briefing N° 131, 13
December 2011 (also available in
Sri Lanka: Women's Insecurity in the North
and East, Asia Report N°217, 20
December 2011.
Sri Lanka's North I: The Denial of
Minority Rights, Asia Report N°219, 16
March 2012.
Sri Lanka's North II: Rebuilding under the
Military, Asia Report N°220,16 March
Talking About Talks: Toward a Political
Settlement in Afghanistan, Asia Report
N°221, 26 March 2012.
Pakistan's Relations with India: Beyond
Kashmir?, Asia Report N°224, 3 May
Bangladesh: Back to the Future, Asia
Report N°226, 13 June 2012.
Aid and Conflict in Pakistan, Asia Report
N°227, 27 June 2012.
Election Reform in Pakistan, Asia Briefing
N°137, 16 August 2012.
South East Asia
Local Election Disputes in Indonesia: The
Case of North Maluku, Asia Briefing
N°86, 22 January 2009.
Timor-Leste: No Time for Complacency,
Asia Briefing N°87, 9 February 2009.
The Philippines: Running in Place in
Mindanao, Asia Briefing N°88, 16
February 2009.
Indonesia: Deep Distrust in Aceh as
Elections Approach, Asia Briefing N°90,
23 March 2009.
Indonesia: Radicalisation ofthe "Palem-
bang Group ", Asia Briefing N°92, 20
May 2009.
Recruiting Militants in Southern Thailand,
Asia Report N°170, 22 June 2009 (also
available in Thai).
Indonesia: The Hotel Bombings, Asia
Briefing N°94, 24 July 2009 (also available in Indonesian).
Myanmar: Towards the Elections, Asia
Report N°174, 20 August 2009.
Indonesia: Noordin Top's Support Base,
Asia Briefing N°95, 27 August 2009.
Handing Back Responsibility to Timor-
Leste 's Police, Asia Report N°180, 3
December 2009.
Southern Thailand: Moving towards Political Solutions?, Asia Report N° 181, 8
December 2009 (also available in Thai).
The Philippines: After the Maguindanao
Massacre, Asia Briefing N°98, 21
December 2009.
Radicalisation and Dialogue in Papua,
Asia Report N° 188, 11 March2010 (also
available in Indonesian).
Indonesia: Jihadi Surprise in Aceh, Asia
Report N° 189, 20 April 2010.
Philippines: Pre-election Tensions in
Central Mindanao, Asia Briefing N°103,
4 May 2010.
Timor-Leste: Oecusse and the Indonesian
Border, Asia Briefing N°104, 20 May
The Myanmar Elections, Asia Briefing
N°105, 27 May 2010 (also available in
Bridging Thailand's Deep Divide, Asia
Report N° 192, 5 July 2010 (also
available in Thai).
Indonesia: The Dark Side of Jama 'ah
Ansharut Tauhid (JAT), Asia Briefing
Indonesia: The Deepening Impasse in
Papua, Asia Briefing N°108, 3 August
Illicit Arms in Indonesia, Asia Briefing
N°109, 6 September 2010.
Managing Land Conflict in Timor-Leste,
Asia Briefing N°l 10, 9 September 2010.
Stalemate in Southern Thailand, Asia
Briefing N° 113, 3 November 2010 (also
available in Thai).
Indonesia: "Christianisation " and
Intolerance, Asia Briefing N°l 14, 24
November 2010.
Indonesia: Preventing Violence in Local
Elections, Asia Report N° 197, 8
December 2010 (also available in
Timor-Leste: Time for the UN to Step Back,
Asia Briefing N°l 16, 15 December
The Communist Insurgency in the
Philippines: Tactics and Talks, Asia
Report N°202, 14 February 2011.
Myanmar's Post-Election Landscape, Asia
Briefing N° 118, 7 March 2011 (also
available in Chinese and Burmese).
The Philippines: Back to the Table, Warily,
in Mindanao, Asia Briefing N° 119, 24
March 2011.
Thailand: The Calm Before Another
Storm?, Asia Briefing N°121, 11 April
2011 (also available in Chinese and
Timor-Leste: Reconciliation and Return
from Indonesia, Asia Briefing N°122, 18
April 2011 (also available in
Indonesian Jihadism: Small Groups, Big
Plans, Asia Report N°204, 19 April
2011 (also available in Chinese).
Indonesia: Gam vs Gam in the Aceh
Elections, Asia Briefing N°123,15 June
Indonesia: Debate over a New Intelligence
Bill, Asia Briefing N°124, 12 July 2011.
The Philippines: A New Strategy for Peace
in Mindanao?, Asia Briefing N°125, 3
August 2011.
Indonesia: Hope and Hard Reality in
Papua, Asia Briefing N°126, 22 August
Myanmar: Major Reform Underway, Asia
Briefing N°127, 22 September 2011
(also available in Burmese and Chinese).
Indonesia: Trouble Again in Ambon, Asia
Briefing N°128, 4 October 2011.
Timor-Leste's Veterans: An Unfinished
Struggle?, Asia Briefing N°129, 18
November 2011.
The Philippines: Indigenous Rights and the
MILF Peace Process, Asia Report
N°213, 22 November 2011.
Myanmar: A New Peace Initiative, Asia
Report N°214, 30 November 2011 (also
available in Burmese and Chinese).
Waging Peace: ASEAN and the Thai-
Cambodian Border Conflict, Asia Report
N°215, 6 December 2011 (also available
in Chinese).
Indonesia: From Vigilantism to Terrorism
in Cirebon, Asia Briefing N°132, 26
January 2012.
Indonesia: Cautious Calm in Ambon, Asia
Briefing N°133, 13 February 2012.
Indonesia: The Deadly Cost of Poor
Policing, Asia Report N°218,16
February 2012.
Timor-Leste's Elections: Leaving Behind a
Violent Past?, Asia Briefing N°134, 21
February 2012.
Indonesia: Averting Election Violence in
Aceh, Asia Briefing N°135, 29 February
Reform in Myanmar: One Year On, Asia
Briefing N°136, 11 April 2012 (also
available in Burmese).
The Philippines: Local Politics in the Sulu
Archipelago and the Peace Process,
Asia Report N°225, 15 May 2012.
How Indonesian Extremists Regroup, Asia
Report N°228, 16 July 2012.
Myanmar: The Politics of Economic
Reform, Asia Report N°231, 27 July
Indonesia: Dynamics of Violence in Papua,
Asia Report N°232, 9 August 2012.
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 37
Thomas R Pickering
Former U.S. Undersecretary of State;
Ambassador to the UN, Russia, India, Israel,
Jordan, El Salvador and Nigeria
Louise Arbour
Former UN High Commissioner for Human
Rights and Chief Prosecutor for the International
Criminal Tribunals for the former Yugoslavia
and Rwanda
Ayo Obe
Legal Practitioner, Lagos, Nigeria
Ghassan Salame
Dean, Paris School of International Affairs,
Sciences Po
Morton Abramowitz
Former U.S. Assistant Secretary of State
and Ambassador to Turkey
Cheryl Carolus
Former South African High Commissioner to
the UK and Secretary General ofthe ANC
Maria Livanos Cattaui
Former Secretary-General ofthe International
Chamber of Commerce
Yoichi Funabashi
Chairman ofthe Rebuild Japan Initiative; Former
Editor-in-Chief, The Asahi Shimbun
Frank Giustra
President & CEO, Fiore Financial Corporation
Lord (Mark) Malloch-Brown
Former UN Deputy Secretary-General and
Administrator of the United Nations Development
Programme (UNDP)
Moises Nairn
Senior Associate, International Economics
Program, Carnegie Endowment for International
Peace; Former Editor in Chief, Foreign Policy
George Soros
Chairman, Open Society Institute
Par Sten back
Former Foreign Minister of Finland
Nahum Barnea
Chief Columnist for Yedioth Ahronoth, Israel
Samuel Berger
Chair, Albright Stonebridge Group LLC;
Former U.S. National Security Adviser
Emma Bonino
Vice President ofthe Italian Senate; Former
Minister of International Trade and European
Affairs of Italy and European Commissioner
for Humanitarian Aid
Micheline Calmy-Rey
Former President of the Swiss Confederation
and Foreign Affairs Minister
Wesley Clark
Former NATO Supreme Allied Commander
Sheila Coronel
Toni Stabile Professor of Practice in Investigative
Journalism; Director, Toni Stabile Center for Investigative Journalism, Columbia University, U.S.
Mark Eyskens
Former Prime Minister of Belgium
Nabil Fahmy
Former Ambassador of Egypt to the U.S. and
Japan; Founding Dean, School of Public Affairs,
American University in Cairo
Joshua Fink
CEO & Chief Investment Officer, Enso Capital
Management LLC
Joschka Fischer
Former Foreign Minister of Germany
Lykke Friis
Former Climate & Energy Minister and
Minister of Gender Equality of Denmark; Former
Prorector at the University of Copenhagen
Jean-Marie Guehenno
Arnold Saltzman Professor of War and Peace
Studies, Columbia University; Former UN Under-
Secretary-General for Peacekeeping Operations
Carla Hills
Former U.S. Secretary of Housing and U.S.
Trade Representative
Lena Hjelm-Wallen
Former Deputy Prime Minister and Foreign
Minister of Sweden
Mo Ibrahim
Founder and Chair, Mo Ibrahim Foundation;
Founder, Celtel International
Igor Ivanov
Former Foreign Minister of the Russian
Asma Jahangir
President ofthe Supreme Court Bar Association
of Pakistan, Former UN Special Rapporteur on
the Freedom of Religion or Belief
Wadah Khanfar
Co-Founder, Al Sharq Forum; Former Director
General, Al Jazeera Network
Former Prime Minister of the Netherlands
Ricardo Lagos
Former President of Chile
Joanne Leedom-Ackerman
Former International Secretary of PEN
International; Novelist and journalist, U.S.
Lalit Mansingh
Former Foreign Secretary of India, Ambassador
to the U.S. and High Commissioner to the UK
Benjamin Mkapa
Former President of Tanzania
Laurence Parisot
President, French Business Confederation
Karim Raslan
Founder, Managing Director and Chief Executive
Officer of KRA Group
Paul Reynolds
President & Chief Executive Officer, Canaccord
Financial Inc.
Javier Solana
Former EU High Representative for the Common
Foreign and Security Policy, NATO Secretary-
General and Foreign Minister of Spain
Liv Monica Stubholt
Senior Vice President for Strategy and Communication, Kvaerner ASA; Former State Secretary
forthe Norwegian Ministry of Foreign Affairs
Lawrence Summers
Former Director of the US National Economic
Council and Secretary ofthe U.S. Treasury;
President Emeritus of Harvard University
Wang Jisi
Dean, School of International Studies, Peking
University; Member, Foreign Policy Advisory
Committee ofthe Chinese Foreign Ministry
Wu Jianmin
Executive Vice Chairman, China Institute for
Innovation and Development Strategy; Member,
Foreign Policy Advisory Committee ofthe
Chinese Foreign Ministry; Former Ambassador
of China to the UN (Geneva) and France
Lionel Zinsou
CEO, PAI Partners
 Nepal's Constitution (I): Evolution Not Revolution
Crisis Group Asia Report N°233, 27 August 2012
Page 38
A distinguished group of individual and corporate donors providing essential support and expertise to Crisis Group.
Mala Gaonkar
Frank Holmes
Steve Killelea
George Landegger
McKinsey & Company
Ford Nicholson & Lisa Wolverton
Harry Pokrandt
Shearman & Sterling LLP
Ian Telfer
White & Case LLP
Neil Woodyer
Individual and corporate supporters who play a key role in Crisis Group's efforts to prevent deadly conflict.
Anglo American PLC
APCO Worldwide Inc.
Ryan Beedie
Stanley Bergman & Edward
Harry Bookey & Pamela
Neil & Sandra DeFeo Family
Equinox Partners
Fares I. Fares
Neemat Frem
FTI Consulting
Seth & Jane Ginns
Alan Griffiths
Rita E. Hauser
Sir Joseph Hotung
lara Lee & George Gund
George Kellner
Amed Khan
Faisel Khan
Zelmira Koch Polk
Elliott Kulick
Jean Manas & Rebecca
Harriet Mouchly-Weiss
Naringslivets Inter-
nationella Rad (NIR) -
International Council of
Swedish Industry
Griff Norquist
Ana Luisa Ponti & Geoffrey
R. Hoguet
Kerry Propper
Michael L. Riordan
Nina Solarz
Belinda Stronach
Talisman Energy
TillekeS Gibbins
Kevin Torudag
VIVA Trust
Yapi Merkezi Construction
and Industry Inc.
Stelios S. Zavvos
Former Board Members who maintain an association with Crisis Group, and whose advice and support are called on (to the
extent consistent with any other office they may be holding at the time).
Martti Ahtisaari
Chairman Emeritus
George Mitchell
Chairman Emeritus
Gareth Evans
President Emeritus
Kenneth Adelman
Adnan Abu Odeh
HRH Prince Turki al-Faisal
Hushang Ansary
Oscar Arias
Ersin Anoglu
Richard Armitage
Diego Arria
Zainab Bangura
Shlomo Ben-Ami
Christoph Bertram
Alan Blinken
Lakhdar Brahimi
Zbigniew Brzezinski
Kim Campbell
Jorge Castaneda
Naresh Chandra
Eugene Chien
Joaquim Alberto Chissano
Victor Chu
Mong Joon Chung
Pat Cox
Gianfranco Dell'Alba
Jacques Delors
Alain Destexhe
Mou-Shih Ding
Uffe Ellemann-Jensen
Gemot Erler
Marika Fahlen
Stanley Fischer
Malcolm Fraser
I.K. Gujral
Swanee Hunt
Max Jakobson
James V. Kimsey
Aleksander Kwasniewski
Todung Mulya Lubis
Allan J. MacEachen
Graga Machel
Jessica T. Mathews
Nobuo Matsunaga
Barbara McDougall
Matthew McHugh
Miklos Nemeth
Christine Ockrent
Timothy Ong
Olara Otunnu
Lord (Christopher) Patten
Shimon Peres
Victor Pinchuk
Surin Pitsuwan
Cyril Ramaphosa
Fidel V. Ramos
George Robertson
Michel Rocard
Volker Riihe
Giiler Sabanci
Mohamed Sahnoun
Salim A. Salim
Douglas Schoen
Christian Schwarz-Schilling
Michael Sohlman
Thorvald Stoltenberg
Leo Tindemans
Ed van Thijn
Simone Veil
Shirley Williams
Grigory Yavlinski
Uta Zapf
Ernesto Zedillo


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