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Nepal's Constitutional Process International Crisis Group 2007-02-26

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 NEPAL'S CONSTITUTIONAL PROCESS
Asia Report N° 128 - 26 February 2007
Internationa
Crisis Group
WORKING TO PREVENT
CONFLICT WORLDWIDE
 TABLE OF CONTENTS
EXECUTIVE SUMMARY AND RECOMMENDATIONS i
I. INTRODUCTION 1
II. THE END OF THE 1990 CONSTITUTION 2
A. In with a Bang 2
B. Second Thoughts 3
C. Out with a Whimper 3
III. THE INTERIM CONSTITUTION 5
A. The Interim Constitution Drafting Committee 5
1. Process 5
2. Public participation 6
3. Substance 6
4. Lessons 7
B. The Final Document 7
1. How it was decided 7
2. Major features 8
3. Centralisation of power 9
IV. THE CONSTITUENT ASSEMBLY 10
A. Goals 10
B. ELECTIONS 11
C. PROCEDURES 12
D. THE CONSTITUENT ASSEMBLY AS LEGISLATURE 13
E. DURATION 14
V. THE POLITICAL PLAYERS 15
A. THE MAINSTREAM PARTIES 15
1. Views on constitutional substance and procedures 15
2. Democratic reform 16
B. The Maoists 17
1. Views on constitutional substance and procedures 18
2. Democratic reform 19
C. THE RELUCTANT, THE RESISTANT AND THE REBELLIOUS 19
VI. PUBLIC PARTICIPATION 23
A. Education, Dissemination and Discussion 23
B. INCLUSIVENESS 24
C. From Consultation to Participation 25
D. International Experience 26
VII. INTERNATIONAL ASSISTANCE 27
A. PRINCIPLES AND PRACTICALITIES 27
B. POLITICAL CONTEXT 28
C. TheUNMission 28
D. AREAS OF ENGAGEMENT 29
VIII. CONCLUSION 31
 APPENDICES
A. Map of Nepal 33
B. United Nations Security Council Resolution 1740 (2007) 34
C. About the International Crisis Group 36
D. Crisis Group Reports and Briefings on Asia 37
E. Crisis Group Board of Trustees 39
 Crisis Group
WORKING TO PREVENT
CONFLICT WORLDWIDE
Asia Report N°128
26 February 2007
NEPAL'S CONSTITUTIONAL PROCESS
EXECUTIVE SUMMARY AND RECOMMENDATIONS
With the formation of an interim legislature
incorporating mainstream parties and Maoists, Nepal's
peace process hinges on writing a constitution that
permanently ends the conflict, addresses the widespread
grievances that fuelled it and guards against the
eruption of new violence. Most political actors have
accepted the Maoist demand for a constituent
assembly (CA) tasked with framing a new dispensation,
although royalists are worried over the future of the
monarchy, which has in effect been suspended. The
major challenge is to maintain leadership-level consensus
while building a broad-based and inclusive process
that limits room for spoilers and ensures long-term
popular legitimacy. Recent unrest in the Tarai plains
illustrates the dangers of ignoring popular discontent.
Key political actors need to prepare more seriously
for the CA. Led by the newly established United
Nations mission in Nepal (UNMIN), the international
community should pressure all sides to abide by their
stated commitments and global norms and provide
technical assistance to the electoral process.
The interim constitution promulgated on 15 January
2007 established a framework for constitutional change
and enshrined the guiding principles agreed in earlier
negotiations. The new constitution's drafting process has
to address the twin objectives of peacebuilding and
longer-term political reform. It offers an opportunity to
cement the Maoists' integration into mainstream
democratic politics, to determine the monarchy's fate
and to tackle long-standing ethnic, regional and caste
fissures. But successful constitutional processes require
a delicate balance of elite accommodations and broad
public participation. Ifthe joint mainstream party/Maoist
leadership fails to balance these sometimes competing
demands, or the process stalls, violent conflict may
emerge once more.
There is also a tension over timescales - a speedy
process would maintain momentum but could cut too
many comers. The elections and assembly will not be
perfect but they have to be good enough: the polls
must be plausible, and the assembly must be seen to
work adequately. The initial arbiters ofthe election's
fairness will be a small number of critical domestic
and international constituencies, primarily the major
party leaderships and India. If their judgement is out
of step with the national mood - as it often has been
in the past - it will produce new problems.
The constitutional process has to build a complex
equilibrium among elites. It must provide political
space for the Maoists while limiting their options to
use violence or coercion against political opponents.
The consolidation of a competitive multiparty system
naturally bolsters the mainstream political parties but in
the short term will heighten their differences with each
other and may encourage a return to the less than
edifying tactics of earlier parliamentary politics.
Managing the transition in the palace's role may also
present difficulties: political leaders have skillfully
stripped royal powers comprehensively but gradually,
with no single step sufficient to prompt a backlash. But
a decisive alteration of traditional power structures will
still encounter resistance from conservative institutions
- not just the palace but also elements of the army,
judiciary and bureaucracy.
So far the process has concentrated on building elite
consensus at the expense of intense political debate or
extensive public consultation. A handful of SPA and
Maoist leaders have controlled closed-door negotiations;
limited parliamentary scrutiny has not even extended to
recognising the concept of an opposition. The interim
constitution has granted the prime minister and cabinet
sweeping authority, subject to minimal checks and
balances; the compromised independence of institutions
such as the judiciary has weakened the principle of
separation of powers. The inclusion of provisions such
as the unrestricted authority to grant pardons suggests
that interim arrangements may enable the political elite
to sweep past misdeeds under the carpet.
Warnings of a "new dictatorship" are exaggerated but the
peace process has so far delivered an oligarchy of party
leaders rather than a popular democracy. Party leaders
have shown little appetite for pluralism: the interim
legislature will have no official opposition, royalist parties
may be excluded from the CA, new parties will find it
very hard to register for elections, and in any case,
 Nepal's Constitutional Process
Crisis Group Asia Report N°128, 26 February 2007
Page ii
"consensus" decisions will leave most power in the hands
of party leaders. Ad-hoc pre-negotiation of important
issues threatens to undermine the constitutional process.
For example, the SPA-Maoist response to Tarai
discontent was to push forward proposals for federalism,
thus pre-empting any meaningful discussion of one ofthe
CA's central concerns.
The demise of the 1990 Constitution illustrates that no
new constitutional order will gain legitimacy unless it
visibly incorporates public input. Diverse education
efforts, including both local initiatives and intemationally-
funded projects, have already begun; expectations of
significant changes have been aroused. However, there
are no institutional structures to channel, process and
consider the results of consultation. The Interim
Constitution Drafting Commission invited public input
but lacked a clear mandate or adequate mechanisms to
deal with submissions. The result was public frustration
and dissatisfaction with the end product. The CA process
will need to do better if it is to deliver greater legitimacy.
Mainstream parties have devoted scant consideration to the
difficult questions of procedure involved in constitutional
reform. Few have embarked on internal changes to tackle
their own problems of corruption, patronage and exclusion
that fuelled support for the Maoists. Strengthening parties'
internal democracy and accountability would directly
benefit the constitution-making process.
The Maoists first agreed to join multiparty politics in
November 2005. They need to use the transitional
period and the CA elections, scheduled for June 2007,
to justify this strategy to their cadres. This could
encourage them to democratise and make the most of
open political campaigning on their populist agenda
but it will also tempt them to retain their tried and
tested tactics of intimidation and coercion. To date,
the picture is mixed: while they have not given up all
illegitimate means, they are working to present a
moderate, compromising image.
It is to the credit of Nepal's government and the Maoists
that the peace process has largely been internally driven
rather than internationally imposed and that the key
political players have shown a willingness to recognise
and learn from past errors. The international community,
nevertheless, has an important, if ancillary, role in
supporting the constitution-making process. In addition
to funding grassroots education, donors should build on
the country's considerable intellectual capital, for
example by funding publications, radio shows and news
articles by local scholars, lawyers and activists. Aid that
promotes transplanted models or that pursues donors'
narrowly conceived political goals, however, would
likely be counterproductive.
RECOMMENDATIONS
To the Government of Nepal and the Communist
Party of Nepal (Maoist):
1. Commit publicly that elected delegates to the
constituent assembly will abide by the principles
listed in the preamble ofthe Comprehensive Peace
Agreement (CPA) so that the constitution to be
drafted reflects those principles.
2. Commit publicly before the constituent assembly
convenes to abstain from trading off constitutional
goals for short-term legislative purposes.
3. Enact a law, in accordance with Article 79 ofthe
interim constitution, stipulating transparent agenda-
setting procedures for the constituent assembly in
both plenary and committee sessions.
To the Interim Government of Nepal (once formed):
4. Establish a professionally-staffed commission
with a clear mandate to:
(a) prepare options for constitutional provisions;
(b) manage a process of public submissions,
including the preparation of public
education materials and the facilitation of
public outreach;
(c) synthesise and analyse public submissions
received and prepare detailed summaries
of the issues and demands raised by the
general public;
(d) issue a public report detailing how the
constituent assembly discussed and, to the
extent relevant, incorporated public input;
and
(e) communicate effectively to the public the
progress and next steps of the process
throughout the lead-up to, and life of, the
constituent assembly.
5. Clarify that the mandate ofthe constituent assembly
in its capacity as a legislature will be narrowly
construed to cover solely issues that must be
resolved before the creation and convening of an
elected, hue legislature under the new constitution.
6. Enact rules to maximise the transparency of the
constituent assembly's deliberations by, for
example, providing for press coverage of, and
public access to, all plenary sessions and limiting
the number of closed committee sessions.
7. Demonstrate willingness to engage in serious debate
with parties not represented in government so as to
 Nepal's Constitutional Process
Crisis Group Asia Report N°128, 26 February 2007
Page iii
encourage them to play the role of a constructive
opposition.
To the Mainstream Political Parties:
8. Carry out internal reforms in line with Article
142(3)(c) of the interim constitution, including
the setting of minimum quotas, to improve the
representation and participation of women and
minorities such as dalits and ethnic groups in
party bodies such as central committees.
9. Establish internal rules to promote transparency and
increased debate so as to diminish the importance of
patronage as a factor in intra-party decision-making.
To the Communist Party of Nepal (Maoist):
10. Renew the commitment made in the CPA to a
constituent process that is "without any kind of
fear" by:
(a) announcing that all private and government
public education efforts related to
constitutional reform will be permitted
without interference or violence;
(b) allowing the police, as agreed in the CPA,
to maintain order and investigate criminal
activities; and
(c) committing publicly to respect freedoms
of speech and political association of
other political parties and other entities
engaged in mobilisation or education in
the run-up to the constituent assembly.
To India, the U.S., the European Union and Other
Members ofthe International Community:
11. Maintain coordination and avoid duplicative or
conflicting efforts by consulting with each other
and, where appropriate (as, for example, in electoral
assistance), making use ofthe coordinating capacity
ofthe United Nations Mssion in Nepal (UNMIN).
12. Use the forthcoming Nepal Development Forum
to develop a coordinated approach to development
aid and peace process support.
13. Facilitate an inclusive and effective process of
public consultation in the run-up to the constituent
assembly by:
(a) supporting ceasefire monitoring and the
creation of democratic space politically,
practically and financially, for example,
by strengthening institutions such as the
National Human Rights Commission;
(b) maintaining pressure on the Maoists to
refrain from politically-motivated violence;
(c) encouraging the funding of radio and
television content and books and magazine
articles by Nepalis that broaden and clarify
the debate on constitutional issues; and
(d) providing financial and technical assistance
if the government creates a commissionlike body to mediate public input.
14. Provide funding for an inclusive and effective
process of public consultation, while:
(a) scmtinising funding directed to "grassroots"
public education to ensure that projects
benefit their target groups rather than merely
their implementers; and
(b) avoiding the funding of home-country
experts who seek to transplant foreign
constitutional models.
15. Provide technical support to intra-party efforts to
foster discussion of constitutional issues, without
pressing for transplantation of features of donor
nations' constitutional arrangements.
Kathmandu/Brussels, 26 February 2007
 Crisis Group
WORKING TO PREVENT
CONFLICT WORLDWIDE
Asia Report N°128
26 February 2007
NEPAL'S CONSTITUTIONAL PROCESS
INTRODUCTION
Recognition that constitutional change would be an
essential part of a viable peace deal in Nepal grew
steadily following failed peace talks in 2001 and
2003.: The Maoist demand for a constituent assembly
(CA) - a decades-old proposal that has enjoyed the
support of many political forces at different times -
grew in acceptability subsequent to the February 2005
royal coup.2 It was formally endorsed by the
mainstream Seven-Party Alliance (SPA)3 in November
2005, when it signed a twelve-point agreement
pledging to work with the Maoists towards "full
democracy".4 Although the palace resisted fundamental
change, King Gyanendra recognised defeat when
forced to relinquish power in the aftermath of mass
protests in April 2006. He asked the SPA to resolve
"the ongoing violent conflict and other problems
facing the country according to [its] roadmap", which
by then included the commitment to elect a CA with
Maoist participation.5
Negotiations after the April 2006 transfer of power
were sometimes difficult but neither side reneged on
this understanding. The 21 November 2006
Comprehensive   Peace   Agreement   (CPA)   placed
constitutional change at the heart of peacebuilding
and efforts to tackle deep-seated economic and social
inequalities.6 It stipulated that elections for a CA
should be completed by mid-June 2007. The interim
constitution promulgated on 15 January 2007 detailed
electoral mechanisms and laid ground rules for the
CA's functioning.7
Successful constitution making depends on two
related, but distinct, processes: building a new
consensus among the political elite that incorporates
the Maoists into a democratic mainstream, and
recognising the Nepali people's right to a say in their
constitutional future through structured public
consultation that is incorporated into constitutional
deliberations. This report considers procedural aspects
ofthe constitutional process and makes recommendations
in these areas, while touching only in passing on
substantive issues, such as the role of the monarchy,
state restructuring and methods for building an
inclusive society, which are for the people to decide.
1 Recent Crisis Group analysis on Nepal includes Crisis Group
Asia Report N°lll, Electing Chaos, 31 January 2006; Crisis
Group Asia Briefing N°49, Nepal's Crisis: Mobilising
International Influence, 19 April 2006; Crisis Group Asia
Report N°l 15, Nepal: From People Power to Peace?, 10 May
2006; and Crisis Group Asia Report N°126, Nepal's Peace
Agreement: Making it Work, 15 December 2006. Earlier
reporting is available at www.crisisgroup.org.
2 Crisis Group Asia Report N°99, Towards a Lasting Peace in
Nepal: The Constitutional Issues, 15 June 2006, pp. 3-5.
3 The parliamentary parties that make up the SPA are the
Nepali Congress (NC); Communist Party of Nepal (Unified
Marxist-Leninist, UML); Nepal Sadbhavana Party
(Anandidevi, NSP (A)); Nepali Congress (Democratic,
NC(D)); Janamorcha Nepal; Nepal Workers and Peasants
Party (NWPP); and United Left Front (ULF).
4 Crisis Group Asia Report N°106, Nepal's New Alliance: The
Mainstream Parties and the Maoists, 28 November 2006.
5 Royal proclamation, 24 April 2006, reproduced in Crisis
Group Report, From People Power To Peace?, op. cit, p. 31.
6 Crisis Group Report, Nepal's Peace Agreement, op. cit. The
full text ofthe CPA is available at http://www.ekantipur.com.
7 The interim constitution is available at
http://www.nepalnews.conVarchive/2007/jan/janl5/Constituti
on_2063.doc (in Nepali); no reliable English translation is
publicly available. Its provisions may yet be altered; it can be
revised by a two-thirds vote in the interim legislature and
many politicians have indicated that they will be seeking
amendments (see below).
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 2
II.     THE END OF THE 1990
CONSTITUTION
A.      IN WITH A BANG
The 1990 Constitution was widely celebrated by
Nepalis as "the best constitution in the world".8 The
country's fifth, it was the first to embody the spirit of
a mass movement and to be drafted largely by political
parties representing popular aspirations.9 However,
the nine-member Constitutional Recommendation
Commission formed after the movement was only an
advisory body, not a drafting commission, and its
members were not elected. It was limited by a
mandate to create a constitutional monarchy with a
parliamentary system and was subject to strong palace
pressure;10 it was King Birendra who promulgated the
constitution.11
8 This assessment was still widely used in the country until
surprisingly recently. Even after its apparent collapse, one
journalist asked of a drafter: 'As one of the framers of the
constitution of the kingdom of Nepal, 1990 - which is
considered one ofthe best constitutions ofthe world - what do
you think is the major reason for its failure?" Pratibedan
Vaidya, interview with Justice Laxman Prasad Aryal,
nepalnews.com, 21 May 2006. For activists who long opposed
its provisions, the claim that it was "the best" was a focus for
criticism. In the wake of early 2007 protests, one activist
complained that "the 1990 Constitution was even claimed by
some quarters as 'the best constitution in the world'. Then
why do Nepalese people have to fight again and again in the
name of same 'freedom' and 'democracy' even after that?"
"Nominal federalism", madhesh.com, 17 February 2007.
Supporters of the 1990 Constitution used the same terms to
mourn its passing: "Acclaimed as one ofthe best constitutions
of the world, the Constitution of Kingdom of Nepal 1990 has
been sent to dustbin", Keshab Poudel, "Political turmoil",
Spotlight, 19 January 2007.
9 Nepal had four earlier constitutions: a January 1948
document issued by the Rana regime; a transitional Interim
Government Act of 1951; and King Mahendra's constitutions
of 1959 (multiparty parliamentary) and 1962 (partyless
Panchayat). For a more detailed discussion of these, see Crisis
Group Report, Towards a Lasting Peace in Nepal, op. cit, pp.
3-5.
10 Two royal representatives (Pradyumna Lai Rajbhandari and
Ramananda Prasad Singh) were included in the commission
(alongside three NC, three communists and the neutral chair,
Bishwanath Upadhayay). Narahari Acharya
Sambidhansabha: sambidhanma janatako swamitwa ra
apanatwa (Kathmandu, 2005), p. 17. The Royal Nepalese
Army also made strong representations to pressure the interim
prime minister to preserve royal powers. Interim Prime
Minister K.P.   Bhattarai,   interviewed  in Martin Hoftun,
The 1990 dispensation suffered from two critical
weaknesses. First, the drafting process came to be
widely criticised for its exclusivity.12 Apart from the
Maoists, activists representing smaller parties and
ethnic or regional movements complained it was a
private deal made by powerful parties and the
palace.13 Even the UML, which was represented on
the commission, was not happy with the final version
and only expressed "critical support". The commission
received submissions from the public, the "vast
majority" concerning ethnic, linguistic and religious
issues, but it neither publicly acknowledged nor
incorporated them.14
Secondly, the 1990 Constitution failed to stabilise
relations between the monarchy and democratic
political forces. This failure long preceded King
Gyanendra's encroachments on power following the
May 2002 dissolution ofthe House of Representatives.
Immediately after the constitution's promulgation,
King Birendra accredited the ambassador to France,
Kalyan Bikram Adhikari, to other countries without
the advice and consent of the council of ministers
required by Article 35(2). He also nominated
members ofthe upper house of parliament without the
required input from the council of ministers. The
1990 Constitution gave the palace no substantive lawmaking role but Birendra thwarted legislation by
declining to sign bills sent to him, referring them
instead to the supreme court.15 Mainstream political
parties neither checked these palace  gambits nor
William Raeper and John Whelpton, People, Politics &
Ideology (Kathmandu, 1999), p. 301.
11 Krishna Hachhethu, "Transition to Democracy in Nepal:
Negotiations behind Constitution Making, 1990",
Contributions to Nepalese Studies, vol. 21, no. 1, January
1994, p. 112.
12 Crisis Group interview, civil society observer of SPA-
Maoist negotiations, Kathmandu, October 2006. See also
Krishna P. Khanal, Nepal's Discourses in Constituent
Assembly: An Analysis (Kathmandu, 2005), p. 1. This view is
not universally shared. See Mukunda Regmi, Samvaidhanik
vikas ra nepal adhirajyako samvidhan 2047 (Kathmandu,
2005).
13 Crisis Group interviews, ethnic activists, Kathmandu,
October 2006.
14 Hoftun et al., op. cit, p. 312. The resulting constitution
acknowledged Nepal's ethnic and linguistic diversity, but also
endorsed its Hindu status and assigned priority to the Nepali
language. Constitution of Nepal 1990, Arts. 4(1) and 6(1),
reprinted in Ram Kumar Dahal, Constitutional and Political
Developments in Nepal (Kathmandu, 2001).
15 Surendra Bhandari, "Failure of the Constitution and
Democracy in Nepal," in Surendra Bhandari and Budhi Karki,
eds., Future ofthe Nepalese Constitution (Kathmandu, 2005),
pp. 40-42.
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 3
established conclusive authority by delivering stable,
clean and effective government.16
B.    Second Thoughts
Discontent with the 1990 dispensation converged
with a five-decade-old popular sense of entitlement to
a CA. In September 1950, a Nepali Congress party
conference in Bairgania, India, called for a "council
or assembly" to "frame the constitution of the
democratic state of Nepal".17 On 18 February 1951,
following the end of the century-long rule by
hereditary Rana family prime ministers, King
Tribhuvan announced that Nepal would be governed
under a democratic constitution to be formulated by
an elected CA.18
After Tribhuvan's death in 1955, the Nepali Congress
renewed its call for a CA, and in December 1957, its
leadership undertook a nationwide promotional tour.19
Tribhuvan's son and successor, Mahendra, undercut
this campaign by promising an election without
specifying whether for a CA or a legislature. In
February 1959, Mahendra announced that the vote
would be for a new parliament - but that he would
grant a new constitution without a CA. In February
1959, six days before national elections, he promulgated
a constitution largely drafted by the British
international lawyer Ivor Jennings, and 22 months
later he used his emergency powers to arrest the
prime minister and cabinet and institute full royal
rule. His "Panchayat" system of government was
formalised in 1962 in yet another constitution.20
During the Panchayat era, Communist activist Mohan
Bikram Singh advocated a popular CA.21 When a
Hoftun et al., op. cit, pp. 187-214; John Whelpton, A History
of Nepal (Cambridge, 2005), pp. 198-202.
17 Khanal, Nepal's Discourses in Constituent Assembly, op.
cit. p. 42.
18 Bhuwan Lai Joshi and Leo E. Rose, Democratic
Innovations in Nepal: A Case Study of Political Acculturation
(Berkeley, 1966), p. 91. According to the authors, King
Tribhuvan hoped to hold elections to CA by April 1953; this
proved elusive due to political in-fighting and instability in the
new post-Rana order, ibid, pp. 174-175.
19 Ibid, pp. 261-62.
20 Ibid, pp. 212-13, 281-82; Whelpton, .4 History, op. cit, pp.
98-101.
21 Singh first presented the constituent assembly agenda at the
Communist Party of Nepal's 1961 plenum in Darbhanga,
India, immediately after King Mahendra's December 1960
seizure of power. See Crisis Group Report, Towards a Lasting
Peace in Nepal, op. cit. and Crisis Group Asia Report N°104,
popular movement culminating in April 1990 brought
down the Panchayat system, the Communist Party of
Nepal (Masai), led by Singh, renewed this demand
and boycotted the 1991 general election. Neither the
Nepali Congress nor the UML, both represented in
the 1990 constitution drafting body, took up this
campaign.22 The Maoists, then known as the CPN
(Unity Centre), were also not in favour; they participated
in the 1991 election under the 1990 Constitution.
Even when they launched their "people's war" in
1996, they did not call for a CA.23 They raised the
issue when they put out feelers for talks with the
government from 1999 onwards and first presented it
as a formal demand during the 2001 peace talks.
Gradually, their calls for a CA found echoes among
cadres of other political parties.24 By April 2005,
representatives of most major parties endorsed a
"consensus... unambiguously in favour of CA".25
C.    Out with a Whimper
Popular protests in April 2006 ended with King
Gyanendra's surrender of political powers to the
mainstream parties.26 On 21 April, he invoked Article
35 of the 1990 Constitution as the legal basis for a
carefully limited transfer of authority, which would
have established a new government under the old
dispensation. The SPA rejected this offer. His second
proclamation,   on   24   April,   recognised   popular
Nepal's Maoists: Their Aims, Structure and Strategy, 27
October 2005.
22 Khanal, Nepal's Discourses in Constituent Assembly, op.
cit, p. 44; Krishna Belbase, "Politics of Constituent Assembly
in Nepal," in Mukti Rijal (ed.), Readings on Governance and
Development, vol. vii (Kathmandu, 2006), p. 52.
23 One of their original 40 demands submitted to then Prime
Minister Deuba in February 1996 was that "a new constitution
should be drafted by representatives elected for the
establishment of a people's democratic system". They did not
use the phrase "constituent assembly" and their thinking on
the topic subsequently developed. For the 40-point demand
see Crisis Group Report, Nepal's Maoists, op.cit, pp. 40-41.
A fuller translation of the point regarding the new constitution
is given in Deepak Thapa, A Kingdom Under Siege
(Kathmandu, 2003), pp. 189-194.
24 Within the major mainstream parties the two most vocal and
consistent advocates for a CA were Narahari Acharya (NC)
and Shankar Pokhrel (UML).
25 See "Constitutional Crisis in Nepal: The Way Forward", at
http://insn.org/?p=909. The conference was held on 23 April
2005; the Nepali political party representatives were Krishna
Sitaula (NC), Rajan Bhattarai (UML), Pradip Giri (NC(D)),
Rajendra Mahato (NSP(A)); Swanaam (Communist Party of
Nepal (Unity Centre-Mashal)) and CD. Joshi (CPN (United)).
26 See Crisis Group Report, From People Power To Peace?,
op. cit.
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 4
sovereignty and reinstated the dissolved House of
Representatives without invoking the 1990 Constitution.27
This handover, justified by political necessity rather
than legal process, left the status of the constitution
unclear. Without a "formal declaration of nullity," a
prominent constitutional lawyer argued, the 1990
Constitution remained de jure valid.28 Other
constitutional experts concluded that it had been
overtaken by events and lost de facto effectiveness.29
In the words of one political scientist, "the heart of it
has been thrown out".30 The two perspectives reflect a
difference of opinion between those who believed that
the 1990 Constitution had to be followed carefully in
moving to a new system and those who believed that
the people's movement justified acting outside
existing constitutional provisions.
In practice, the legislative and executive branches
selectively followed the 1990 framework. The
restored House of Representatives acted without the
upper house or king.31 Indeed, it quickly moved to
strip the king of power. On 18 May 2006, it
promulgated by voice vote a decree establishing itself
as "sovereign" and "supreme", removing the king as
supreme commander of the army, asserting control
over the royal succession, declaring the country a
secular state and dissolving the Rajparishad (royal
privy council).32 Nevertheless, the selective revocation
of only specific articles strongly suggested that other
parts ofthe 1990 Constitution remained in force.
The SPA, led in effect by the Nepali Congress (NC),
the largest parliamentary party, formed the government.33
The council of ministers, which included the ULF
despite its lack of representation in parliament,
reflected a mixture of political expediency and
legalism, corresponding only roughly with possible
cabinet formulations under the 1990 dispensation.34
Parliamentary committees engaged in some effective
debates on new legislation regulating citizenship and
the army; plenary sessions were less influential.35
The 1990 Constitution's uncertain status did not
affect the day-to-day functioning of the courts and
bureaucracy. "Constitutionalism is not only a written
document, but practice and behaviour" observed a
member of the 1990 Constitution Recommendation
Commission. While much of the framework of
written law has lapsed, he noted, unwritten
conventions have sustained government.36
This sequence of events is recounted in more detail in Crisis
Group Report, Nepal: From People Power To Peace?, op. cit.
28 Crisis Group interview, Kathmandu, October 2006.
29 Crisis Group interviews, constitutional lawyers,
Kathmandu, October 2006.
30 Crisis Group interview, political scientist, Kathmandu,
October 2006.
31 The 1990 Constitution defined parliament as the House of
Representatives, the National Assembly (upper house) and the
king. From May 2006 the Speaker of the House, not the king,
signed acts to make them law. Crisis Group interview,
Nilamber Acharya former law minister, Kathmandu, 13
October 2006. This was maintained in the interim constitution.
See Interim Constitution, Art. 87.
32 Crisis Group Report, Nepal's Peace Agreement, op. cit, p. 4.
33 The NWPP did not quit the SPA but declined to join
government. See Crisis Group Report, Nepal's Peace
Agreement, op. cit. The composition of the House of
Representatives (elected in May 1999) is: NC 71 seats, UML
68, NC(D) 40, RPP eleven, NSP three, NSP(A) two,
Janamorcha Nepal three, Samyukta Janamorcha Nepal three
and NWPP one.
Articles 35 and 36 ofthe 1990 Constitution vested executive
power in a cabinet of ministers appointed by the king from the
majority party in the House of Representatives.
35 Crisis Group Report, Nepal's Peace Agreement, op. cit,
p.3; Crisis Group interview, senior journalist, Patan, October
2006.
36 Crisis Group interview, Nilamber Acharya Kathmandu,
October 2006. Other lawyers agree that the constitution is now
more a matter of conventional practice than formal legal rules.
Crisis Group interview, law professor, Kathmandu, October
2006. An "unwritten constitution" is not a contradiction in
terms; both the UK and New Zealand are described as having
unwritten constitutions.
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Page 5
III.    THE INTERIM CONSTITUTION
A.    The Interim Constitution Drafting
Committee
1.       Process
On 16 June 2006 the SPA and the Maoists reached an
eight-point agreement, committing to "draft an
interim constitution based on the twelve-point
understanding and the ceasefire Code of Conduct"
and "announce the dates for CA elections".37 The
following week, they formed an Interim Constitution
Drafting Committee (ICDC) tasked with producing a
draft within fifteen days.38 In the event, the ICDC
submitted its draft to the SPA and Maoist negotiating
teams only on 25 August. It had gaps, or lists of
options, for key issues such as the fate of the
monarchy and the electoral mechanism for the CA39
but its 172 articles went into more detail about
government institutions than is generally needed for a
short transition.40 It received a frosty welcome.
Constitutional lawyers described it as at best
"incomplete";41 one international expert described it
as "a maximalist constitution without even minimal
political agreement".42
From its inception, the ICDC was embroiled in
confusion and controversy. Former supreme court
judge and member ofthe 1990 Constitution Drafting
Committee Laxman Prasad Aryal was asked to chair
it. SPA and Maoist negotiating teams approached six
other Kathmandu-based lawyers to make up the
committee.   One,   Kathmandu   Law   School   Dean
The text of the eight-point agreement is available at
http://www.kantipuronlfne.com/ kolnews.php?&nid=76803.
38 Crisis Group interview, ICDC Chair Laxman Prasad Aryal,
Kathmandu, 9 October 2006.
39 Jeannie Shawl, "Nepal interim constitutional panel submits
draft",        Jurist.com,        25        August        2006,        at
http://jurist.law.pitt.edu/paperchase/2006/08/nepal-interfm-
constitution-panel.php.
40 In contrast, the proposed interim constitution drafted by the
Maoists was extremely concise, only one-tenth the length of
the ICDC document. "Interim Constitution of Federal
Democratic Republic of Nepal", CPN(M) draft.
41 Crisis Group interviews, constitutional lawyers,
Kathmandu, October 2006. One member described it as an
essay rather than a draft constitution. See Crisis Group Report,
Nepal's Peace Agreement, op. cit, p. 7.
42 Crisis Group interview, Kathmandu, September 2006.
Yubaraj Sangroula, declined, citing concerns about
the secretive manner of appointment.43
None of the members interviewed by Crisis Group
had seen written terms of reference.44 They also
offered conflicting accounts ofthe initial mandate. Its
chair suggested that the mandate was from the outset
limited to technical drafting matters and did not
extend to substantive issues.45 One member, however,
insisted there was no such limitation.46
The ICDC's composition - six men, no women, no
dalits47 and no ethnic members - sparked public
protest. A cross-party caucus of women politicians
picketed the committee, and there were calls to
include ethnic groups and dalits.48 Ten further
members were appointed between late June and mid-
July.49 The process was slow because SPA and Maoist
negotiators selected lawyers not only of the requisite
social groups but also with party links reflecting the
balance of power. Aryal expressed frustration at
delays, warning that "an interim constitution might
not be framed at all".50 Advocates for ethnic and dalit
groups remained dissatisfied.51 Enlarged membership
43 Sangroula suggested that asking lawyers to reach the
political compromises necessary for a constitution was "like
getting seven vets to do heart surgery." Crisis Group
interview, Yubaraj Sangroula, dean of Kathmandu University
School of Law, Kathmandu, 11 October 2006.
44 According to a source close to the Peace Secretariat, written
terms of reference for the ICDC did exist. Crisis Group
interview, Kathmandu, October 2006. Another close observer
of the process suggests that members received letters of
appointment but these did not specify terms of reference.
Email communication with Crisis Group, February 2007.
45 Crisis Group interview, Laxman Prasad Aryal, 9 October
2006. The initial Maoist representative on the ICDC agreed.
Crisis Group interview, Khimlal Devkota, Kathmandu, 15
October 2006.
46 Crisis Group interview, Shambhu Thapa ICDC member,
Kathmandu, October 2006.
47 "Dalit" is the term preferred by "untouchables" at the
bottom of the traditional caste hierarchy to describe
themselves.
48 Crisis Group interview, international political analyst,
Kathmandu, 10 October 2006.
49 A list of ICDC members provided by the Peace Secretariat
to Crisis Group included: Laxman Prasad Aryal (Chair),
Harihar Dahal, Sindhunath Pyakurel, Shambhu Thapa,
Mahadev Yadav, Khimlal Devkota, Agni Kharel, Pushpa
Bhusal, Sushila Karki, Chhatra Kumari Gurung, Shanta Rai,
Sunil Prajapati, Parshuram Jha, Chandeshwor Shrestha and
Kumar Yonjan Tamang. Perhaps revealingly, it omitted the
last appointed member, the dalit lawyer.
50 "Suspicion aroused as constitution draft committee still
incomplete," BBC Monitoring International Reports, 5 July 2006.
51 Crisis Group interview, Kathmandu, 16 October 2006.
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did not alter the fact that the ICDC was dominated by
the SPA and Maoists.52
2.       Public participation
ICDC efforts to secure public participation
compounded the impression of elite control. The
committee used announcements in daily newspapers
to solicit comments but imposed a limited timeframe.
Members attended NGO presentations in Kathmandu,
and the public was permitted to make representations
directly to the ICDC. More than 1,400 written
submissions and "easily 2,000 to 3,000" verbal
submissions were received.53 All political parties
made recommendations, as did various international
and domestic organisations, with ethnic and dalit
groups tendering substantial submissions. Even the
army gave views.54
Meaningful public participation faced two problems.
First, ambiguity about the mandate meant the public
had no clear sense of what the draft would deal with.
Many submissions related to features of a permanent
constitution: a new legislature, reservations within
government institutions and restructuring of the state
into federal or provincial units.55 By failing to
communicate the limited role of transitional institutions,
the ICDC opened the floodgate on pent-up desires for
substantive changes, creating expectations that were
inevitably disappointed.
Secondly, the ICDC lacked administrative machinery
to process and analyse comments. Without this, it
could not fulfil its implicit promise to take public
opinion into account. It conducted an "initial analysis"
of submissions to "pick out themes"56 but had only
limited support staff, principally drawn from the
Peace Secretariat, a body not staffed with constitutional
Parliamentary parties such as the Rastriya Prajatantra Party
and the Rastriya Janashakti Party were not represented in the
ICDC although they did submit suggestions.
53 Crisis Group interview, Kathmandu, October 2006.
54 Crisis Group interview, Peace Secretariat source,
Kathmandu, October 2006.
55 Crisis Group interviews, Tek Tamrakar, Pro Public, and Om
Gurung, Nepal Federation of Indigenous Minorities (NEFIN),
Kathmandu, October 2006; "International Day ofthe World's
Indigenous Peoples: Indigenous Nationalities Kathmandu
Declaration 2006", NEFIN, 9 August 2006. Internationally,
the New York-based Center for Reproductive Rights
submitted recommendations on women's right to reproductive
health care. Letter from Melissa Upreti to ICDC, 28 July 2006,
at http://www.crlp.org/pdf/ww_Letter_to_ICDC.pdf.
56 Crisis Group interview, Kathmandu, October 2006.
lawyers.57 The ICDC made no public statement about
how it had decided which submissions to focus on, or
about how submissions were incorporated in the
interim draft. The public could not determine to what
extent, if any, its ideas were used, or whether
submissions from powerful institutional actors such
as the army received preferential review. In the
absence of transparency, civil society leaders asserted
that the ICDC had not even considered public
comments.58 The government was secretive about
submissions, refusing international experts permission
to view them in order to prepare suggestions for
analysing public views.59
3.       Substance
The ICDC draft60 drew heavily on the 1990
Constitution.61 As noted, it did not resolve key
questions such as the fate of the monarchy and the
electoral mechanisms for the constitutional assembly
but it described in great detail governance principles
and institutions. Part four, for example, listed six
"directive principles of the state" (including
transformation of "the national economy into an
independent and self-reliant system") and nineteen
"state policies".62 Where the 1990 Constitution
contained thirteen detailed provisions on rights, the
ICDC draft listed nineteen, including new rights to a
clean environment, free basic health care, free
education up to secondary level and an entitlement to
employment or unemployment allowances.63
The ICDC draft also provided considerable detail
about   the   legislative   branch   (including   fifteen
Crisis Group interview, former Peace Secretariat official,
Kathmandu, October 2006.
58 Crisis Group interviews, Kathmandu and Lalitpur, October
2006.
59 International constitutional experts, email communication
with Crisis Group, February 2007.
60 "ICDC draft" refers to the ICDC's final draft of 25 August
2006 as submitted to the negotiating parties and published,
and does not refer to earlier, internal ICDC drafts or
subsequent, revised versions prepared by the negotiating
parties.
61 Crisis Group interview, former Peace Secretariat official,
Kathmandu, October 2006.
62 Part 4 of the 1990 Constitution, by contrast, listed five
directive principles and sixteen state policies.
63 ICDC draft, Arts. 17-19. The draft also contained detailed
new provisions on women's and children's rights (Arts. 21,
23), a right against caste discrimination and a right to political
participation for previously excluded groups (Arts. 15, 22).
These goals, however laudable, are the kind of long-term
commitments properly reserved to a final constitution
determined by democratically selected representatives.
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Page 7
complex provisions on the law-making process) and
anti-corruption, public service and human rights
commissions.64 In addition to provisions on the
structure of the judiciary and the judicial council, it
stated that the appointments of all judges would be
terminated unless renewed within six months.65 But
the draft could not resolve politically difficult
questions. For example, it did not specify the form of
an interim legislature and offered alternative ideas for
Nepal's division into a federal structure (a topic best
not resolved by an interim constitution in any case).66
4.       Lessons
The ICDC understood that no non-political body can
substitute for the political accommodation and
compromise that is a necessary part of constitution
making. However, it could still have exercised its
right to present a complete draft or offered more
substantive options for political leaders to select from.
The ICDC was also poorly coordinated - the lack of
understanding among its members about its mandate
was compounded by weak management and limited
debate.67
The challenge for a technical body is to channel
expert and popular views into the negotiation process
without derailing closed-door discussions. One
observer close to the process suggested the ICDC
might have functioned better with an explicit mandate
to develop written formulations of alternative
solutions identified in the negotiations and to engage
in discussion with the negotiating teams.68 Its
experience suggests that elite interests will trump
popular participation if more is not done than merely
opening the process to public comment.
Despite its flaws, the nod towards participation
granted some additional legitimacy to the
constitutional change process. Both SPA and Maoist
leaders acknowledge there were imperfections
however, suggesting a learning experience. Lessons
that can be drawn include:
64 Draft interim constitution, Arts. 88-103,125-32,136-37.
65 Ibid, Art. 168(2). Supreme Court justices had earlier agreed
a thirteen-point recommendation for amendments in the
interim constitution to protect judicial independence. "Justices
submit memo for amendment in interim statute to CJ",
nepalnews.com, 9 January 2007.
66 Draft interim constitution, Arts. 46,144.
67 In subsequent media interviews, Aryal himself admitted that
the ICDC's work suffered from various weaknesses. See, for
example, interview with Laxman Prasad Aryal, Nepal, 10
September 2006.
68 Crisis Group interview, Kathmandu, October 2006.
Clear mandates promote effective transitional
arrangements. There should be a sharp distinction
between technical drafting bodies and political
decision-making bodies. The ICDC appears to have
moved back and forth between a substantive and a
purely technical conception of its mandate. By
inviting public submissions and drafting detailed
constitutional language on, for example, human rights
and the goals ofthe state, it asserted responsibility to
make substantive commitments beyond its legitimate
authority, risking the pre-emption of choices properly
left to a democratically selected entity. The CA
should allocate drafting responsibility clearly and
make copies of draft options available not only to the
delegates but also to the broader public.
Meaningful public participation cannot be
achieved   solely  by  inviting  public   submissions.
There needs to be a state body with the time and
resources to process submissions, analyse them,
submit findings to political decision-makers and
report back to the public. It will be difficult for the
CA to respond in plenary to public comments but a
separately staffed commission or secretariat supporting
the constitution-making process could do so.
Maintaining effective communication with the
public is an essential part of the constitutional
drafting process. Miscommunication risks creating
false expectations, which when unmet, weaken
confidence in the transitional process and the ultimate
constitutional framework. Management of expectations
is a legitimate and necessary part of constitution
making. Resources ought to be devoted to early
communication of goals and functions for discrete
phases ofthe constitution-making process.
B.    The Final Document
1.       How it was decided
The SPA and the Maoists completed the interim
constitution on 15 December 2006. The finished
document was a modified version of the ICDC's
work. Despite a Maoist demand that it be promulgated
within twelve days, it took a month - partly due to the
desire to get the UN-supervised arms management
process underway - during which the text was not
officially released to the public, although copies were
widely circulated. On 15 January 2007 the House of
Representatives promulgated the interim constitution,
dissolved itself (and the defunct upper house) and
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opened the way for the formation of an interim
legislature that immediately held its first sitting.69
The final version was a product of political
negotiation and compromise but it did not represent a
true consensus. Provisions reflected competing party
priorities - for example, the Maoist commitment to a
"scientific land reform program" was included
alongside the right to private property and a principle
to encourage increased economic investment. Even
the name of the interim legislature - the "Legislature-
Parliament" - is an awkward hybrid based on the
Maoist preference for "legislature" and the SPA
preference for "parliament" (which the Maoists feel
carries bourgeois connotations). One constitutional
expert complained that the document was "more
politics, little constitution".70
All players have recognised that the final document is
imperfect - even Prime Minister Koirala expressed
doubts and called for revisions,71 while other parties
have been more fiercely critical. Some SPA House of
Representatives members had registered proposals for
amendments before promulgation but withdrew them
on the prime minister's request. Amendments
proposed by the opposition RPP, RJP and Janamorcha
Nepal72 were rejected by the majority of the House.
The motivation for including longer-term provisions
was partly public pressure for serious reform but more
importantly an enduring sense among party leaders
that the transitional period will probably be
prolonged; if the CA elections are delayed, they want
the mandate to pursue changes.73 Koirala's own call
for amendments can be read as a further indication
that delays are likely.
The interim legislature is officially named "Legislature-
Parliament". Its 330 members include 209 from the
mainstream political parties and 73 from the Maoists. 48 seats
were set aside to accommodate representatives of
marginalised groups and "political personalities" - and also to
include the ULF (which was not represented in the old
parliament). In the end, apart from the Maoists, all other
parties only appointed their own politicians (see below).
70 Interview with Bhimarjun Acharya, nepalnews.com, 29
December 2006.
71 Rajendra Phuyal, "Sudhar gardai jana sakinchha", Kantipur,
16 January 2006.
72 Janamorcha Nepal is a member of the SPA but its
parliamentary representatives have split into three separate
factions. See Crisis Group Report, Nepal's Peace Agreement,
op. cit.
73 Crisis Group interviews, SPA and Maoists leaders,
Kathmandu, January 2007.
2.       Major features
The 330-member interim legislature will exercise
law-making powers until the CA convenes (and
assumes legislative authority alongside its constitution-
drafting mandate).74 Perhaps its most significant
power is the ability, by two-thirds vote, to amend the
interim constitution.75 Other law-making rules apply
to both the interim legislature and the CA in its
legislative capacity.76 As under the 1990 Constitution,
"finance bills" are differentiated from other legislation
and can only be introduced by the government.77 The
interim legislature is not limited to transitional tasks -
there is no prohibition on longer-term legislation.
Like the ICDC draft, the interim constitution is
detailed in a fashion more suitable to a durable,
organic law than a transitional document. It contains
167 articles and two schedules (on the national flag
and the manner of its own entrance into validity). The
retention of the ICDC draft's provisions on
fundamental rights and directive principles means that
important decisions about the allocation of rights and
resources have been made by an unelected and
unrepresentative entity that operated without adequate
public consultation. It is doubtful whether an interim
constitution should contain such long-term provisions
on complex and potentially divisive issues. Of course,
a cash-strapped, stop-gap coalition administration is
unlikely to do much in these areas, but declaring
ambitious targets risks fostering public disappointment
in the constitutional process and its interim
institutions. Strangely, the interim constitution's
preamble does not mention the one solid demonstration
of public will - the April 2006 people's movement -
that led to its creation.
While the interim constitution makes few changes to
the composition and structure ofthe judiciary, judges
are required to swear an oath to it.78 The chief justice
had his oath of office administered by the prime
minister. These provisions led judges and lawyers to
warn that the independence ofthe judiciary had been
compromised.
Interim constitution, Art. 45.
75 Ibid, Art. 148. This is in line with the majority needed to
adopt a provision ofthe new constitution.
76 Ibid, Arts. 59 & 83. The Legislature-Parliament is
empowered to create its own rules (Art. 57); when the
Constituent Assembly forms it may create a separate
committee "for the regulation of its regular parliamentary
activities" (Art. 83(1)).
77 Ibid, Art. 84.
78 Ibid, Art. 162(2).
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The new dispensation has carefully restricted its
definition of pluralism. Members of parties, or
individuals, who were opposed to the April 2006
movement are banned from the interim legislature.
(Twelve former parliamentarians had already been
removed, and when the government realised that
upper house member Lok Bahadur Thapa also had to
be excluded because of his RPP(Nepal) membership,
the 330-member legislature was reduced to 329-
before its first sitting.) The number of royalists
affected is tiny: given that they would have been too
few to block legislation, their exclusion suggests
vindictiveness more than a practical need to guard
against palace meddling.79 All parties represented in
the interim legislature are automatically allowed to
compete in the CA elections, even if they were not
represented in the last parliament (thus including the
CPN(M) and ULF). Other parties, whether old or
new, have to re-register, and the smaller parties may
find it difficult to assembly the required signatures of
10,000 registered electors.
3.       Centralisation of power
The interim constitution creates three branches of
government, executive, legislative and judiciary, but
tilts power heavily toward the executive. Executive
power is vested in a council of ministers led by a
prime minister, who in effect doubles as head of state,
"no power regarding the governance of the country"
remaining with the palace.80 The council of ministers
appoints the army chief and makes up the national
security council;81 it can declare a state of emergency,
a power previously exercised by the king on the
advice ofthe cabinet. Whereas the 1990 Constitution
required parliamentary ratification of a state of
emergency    within    three    months,    the    interim
constitution demands approval within a month and
prohibits more than one extension.82
The king's power to "remove difficulties", which
proved a destabilising portion ofthe 1990 Constitution,
is also transferred to the council of ministers (but not
to the prime minister alone).83 Thus, although Article
159(2) provides that the prime minister assumes the
king's constitutional powers, the most significant
emergency powers are vested collectively in the
cabinet. If the SPA's constituents and Maoists take
different stands, this will check any prime minister's
desire to consolidate power; however, should both
favour emergency powers, there would be little
chance for others to stand in their way. Diluting the
authority of a prime minister who wields residual
monarchical powers is especially important because
this structure of executive power will persist, "after
necessary adjustments" following the first meeting of
the CA.84 A prime minister who is able to dominate
the executive may be tempted to push for centralising
power in a new chief executive, as opposed to a
structure of checks and balances, in the hope that he
will secure that position.
In some respects, the interim constitution tips the
balance of power toward the executive and away from
the legislature. The "Nepal Government" - the prime
minister and his council of ministers85 - can
promulgate ordinances when the legislature is not in
session.86 Key offices, including the chief justice of
the supreme court, the chief commissioner of the
commission for the abuse of authority, and the
election commission, are in effect in the hands of the
prime minister.87 The constitutional council, which
has a pivotal role in several key appointments, is led
by the prime minister and contains three ministers of
The then Personal Representative of the UN Secretary-
General (PRSG), Ian Martin (subsequently appointed Special
Representative), warned that the obstruction of royalist party
activities threatened the legitimacy of the process: "I am
concerned to have received complaints from two political
parties that then activities have been obstructed.... I must
stress that the right of all political parties to carry out peaceful
activities throughout the country is essential for the credibility
of the electoral process, and the credibility of the electoral
process is essential for the credibility of the constitution-
making process", press statement, OPRSG, 29 December
2006, Kathmandu.
80 Interim constitution, Arts. 137,159.
81 Ibid, Arts. 144, 145. The council of ministers is authorised
to "control, mobilise and manage" the army. The powers of
the national security council are not enumerated. Under the
1990 Constitution, a national security council was tasked with
advising the king on the army's use, although its role was
largely cosmetic, 1990 Constitution, Art. 118.
Compare   interim  constitution,   Art.   143,   with   1990
Constitution, Art. 115.
83 Compare interim constitution, Art. 158, with 1990
Constitution, Art. 127. Given the unhappy experience of
Gyanendra's invocation of Art. 127, it is surprising that it was
replicated in the interim constitution.
84 Interim constitution, Art. 44.
85 Ibid, Art. 37(3).
Ibid, Art. 88(1). This provision is similar to powers granted
by the 1990 Constitution. The ordinance ceases to have legal
force 60 days after the commencement of the next legislative
session, Art. 88(2)(c). The interim constitution does not
address the scenario in which more than 60 days elapse before
the legislature meets, for example in a state of emergency.
This leaves open as lawful the possibility of government by
ordinance.
87 Ibid, Arts. 103, 119, 128. The prime minister must appoint
the chief justice and the election commissioners only on the
recommendation ofthe constitutional council.
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his choice, alongside the chief justice and the interim
legislature speaker.88
Given Nepal's unhappy history of abusive executives,
the lack of procedural constraints on the scope of
executive power has prompted widespread concern
among independent commentators.89 But the decision
to concentrate power in the prime minister's hands
was deliberate. Most parties saw it as the best way of
sidelining the monarchy; the Maoists also believed
that it would help circumvent the conservative
instincts ofthe bureaucracy and judiciary. The power
structure raises one unavoidable practical question:
who will succeed the ageing and ailing Koirala if he
has to leave before the end of the transitional period?
The constitution mandates the deputy prime minister
or most senior minister to "act as the Prime Minister
until a new Prime Minister is selected".90 If
expectations that the Maoists will gain the deputy
prime ministership prove correct, their nominee
would be first in line for the country's highest office.
IV.    THE CONSTITUENT ASSEMBLY
m Ibid, Art. 149.
89 A conservative commentary warned: "By vesting all the
executive, legislative and judicial authority upon the Prime
Minister, the interim constitution has side-stepped
internationally set constitutional norms and values. The Prime
Minister is now de facto head of government as well as the
head of state...this interim constitution lays the ground in
which a dictator can be bom although in the garb of a
democrat", Sanjaya Dhakal, "Interim Constitution: Laws and
Flaws", Spotlight, 22 December 2006.
90 Interim constitution, Art. 38(10).
A.    Goals
There is no clear set of substantive commitments
defining the constitution drafters' goal. Although the
interim constitution specifies directive principles and
fundamental rights, these cannot credibly bind the
elected CA. Nevertheless, broad public agreement on
core governance principles is reflected in the stated
aims ofthe major parties.
The CPA's preamble lists the tasks of the new
constitution: "progressive restructuring ofthe state";
resolution of "problems related with class, ethnicity,
regional and gender differences"; and principles of
"competitive multiparty democratic system, civil
liberties, fundamental rights, human rights, complete
press freedom, rule of law and all other norms and
values of democratic system". (The interim constitution
echoes this list but does not demand that the eventual
constitution must be in accord with it.91) These
principles are largely beyond contention - however
much they continue to be violated in practice.
Arguably, the CPA binds both the SPA and the
Maoists as political actors even if the interim
constitution cannot directly bind the CA or its
delegates. At a minimum, they commit the Maoists to
political pluralism, ruling out immediate pursuit of a
one-party state, and the mainstream parties to
remedying regional, ethnic and caste divisions.
A formal commitment by the SPA and the Maoists to
abide by these principles during the CA could help
stabilise the constitution-making process. Other
nations have incorporated threshold substantive
commitments in similar processes. South Africa's
November 1993 interim constitution, for example,
contained 34 "principles" that limited choices in the
ultimate constitutional text; the South African
Constitutional Court reviewed the draft constitution to
enforce those principles.92 In the Nepali context,
institutionalised commitment to addressing exclusion
issues would be a threshold response to long-standing
grievances of marginalised groups. Public commitments
Ibid, Preamble. In consequence, it would be difficult to
argue that the interim constitution binds and limits the
constituent assembly. But that is distinct from whether the
SPA and Maoists are bound by the CPA.
92 Siri Gloppen, South Africa: The Battle over the Constitution
(Aldershot, 1997), and Nicholas Haysom, "Negotiating the
Political Settlement in South Africa. Are there lessons for
other countries?", Track Two, vol. 11, no. 3.
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Page 11
could   also   strengthen   consensus   and   hence   the
coherence ofthe resulting document.93
B.      ELECTIONS
The interim constitution's provisions for the CA
electoral system were not fully elaborated and
prompted protests at a perceived failure to address
inequalities in representation. As earlier agreed in the
CPA, the interim constitution provides for a 425-
member CA - 205 elected through a first-past-the-
post system (FPTP); 204 elected via proportional
representation; and sixteen "distinguished persons"
selected by the interim council of ministers.94 Voters
will probably cast two ballots, one for the
majoritarian system, and one for the proportional
system (in which the entire country will be treated as
a single district).95 However, the selection of which
proportional method was the subject of lengthy
debate, as was the question of whether there should be
separate ballot papers.
In response to the protests in the Tarai plains,96 the
government and Maoists have agreed to alter the
structures set out in the interim constitution. It had
specified that the FPTP electoral units would be based
on the existing parliamentary constituencies last used
in 1999, although it did not specifically prohibit the
redrawing of boundaries.97 It also echoed the CPA
stipulation that parties "should ensure proportional
representation of oppressed groups, regions,
Madhesi,98 women, Dalit, and other groups"99 without
indicating how this should be done - a problematic task
given that these are diverse, ill-defined, and
overlapping groups. In the wake of Tarai unrest, the
government has promised to redraw constituencies
and increase their number there, as well as take other
For discussion of how a famous constitutional drafting
process (the U.S.) achieved coherence, see William H. Riker,
"The Lessons of 1787", Public Choice, vol. 55,1987, p. 9.
94 Interim constitution, Art. 63(3).
95 Interim constitution, Art. 63(3)(b).
96 The Tarai is the strip of low land that runs the length of the
border with India. Due partly to migration from the hills since
the 1960s, it is now home to around half of Nepal's
population.
97 Interim constitution, Art. 63(3)(a) speaks of districts
"determined by the existing law prior to the implementation of
this constitution". This could cover either present districts or
redistricting in accord with pre-interim constitution principles.
98 "Madhesi" is the term by which Tarai residents (excluding
migrants from the hills) prefer to describe themselves,
although it can also be used pejoratively.
99 Interim constitution, Art. 63(4).
measures to  ensure   a more  directly  proportional
system.100
Political compromise was always likely to produce a
complex electoral system.101 The Maoists argued for
proportional representation,102 hoping it would allow
them to aggregate geographically diffuse support; the
NC hoped to preserve its advantage under the 1990
system; the UML argued for a hybrid system with
proportional voting within regional, rather than
nationwide, units.103 However, no final decisions on
the electoral system have been put into law, and the
election commission, which has started informal
preparations, is calling increasingly urgently for the
legal authority it needs to proceed.
Both large mainstream parties favour a parallel
system in which their (probably significant) total of
FPTP seats would be complemented by a share of the
proportional seats in direct relation to their
performance in that half of the poll. Others are
pressing for a mixed member proportional (MMP)
system, in which the proportionally allocated seats
would bring each party's total representation
(including constituency seats) in line with its share of
the vote. This would undermine the advantages the
larger parties would gain from the FPTP system,
which can yield a majority of seats to a party even if it
gets far less than a majority of votes. In late February
2007, an SPA-Maoist taskforce reportedly decided to
use the parallel system and confirmed that there
would be separate ballot papers and boxes for the
FPTP and proportional votes.104
The mixed system may thus be controversial but may
also   yield   a   significant   unintended   benefit:   an
These measures were promised in an address to the nation
by Prime Minister Koirala on 7 February 2007; a bill
incorporating amendments to the interim constitution
reflecting them was introduced to the interim legislature on 18
February.
101 Conecting some ofthe flaws ofthe 1990 system would not
necessarily improve the representativeness of the overall
system. A new census - needed to redraw accurate single-
member districts - is not possible; even redrawn equi-
populational districts could be gerrymandered to skew results.
In the Tarai, for example, many districts form thin north-south
strips, diluting the Madhesi vote with votes from the hill
regions.
102 Crisis Group interview, Baburam Bhattarai, Bhaktapur,
October 2006.
103 Crisis Group interview, Madhav Nepal, Lalitpur, October
2006. Although this proposal was not adopted for the CA
elections the UML may advance it for future elections under
the new constitution. See below.
104 "Double ballot boxes, double ballots agreed", Kathmandu
Post, 23 February 2007.
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Crisis Group Asia Report N° 128, 26 February 2007
Page 12
assembly equally elected by proportional
representation and by single-member districts would
not have a natural bias toward one particular system;
the public would be able to see whether different
mechanisms yielded different distributions of power
and the experience could inform debate within the CA
over which system to make permanent.
The new electoral structure's impact on the
distribution of political power is difficult to predict. It
hinges on factors such as the type of proportional
system adopted, the extent of mainstream party
mobilisation outside district centres and the relative
populations within districts (which has changed due
to the conflict and may change again with efforts to
return internally displaced persons). There also
remain difficult questions about implementation of
the 26 November 2006 citizenship law (particularly in
the Tarai region) and reconstitution of the voter rolls
(where the Maoist insistence on allowing internal
migrants to register at their temporary addresses has
led to friction).105
Contrary to high public expectations, proportional
representation is unlikely in itself to lessen the
mainstream parties' strength. Rather, the parties'
ability to designate lists for the proportional
representation portion ofthe poll will provide a further
lever for controlling representation in Kathmandu.
Adding proportional representation to the mix could
even increase the centralisation of political authority
by weakening local control and scrutiny of political
candidates. The decision to create a single national
electoral district further distances elected representatives
from local communities while heightening their
dependence on leadership patronage to secure a
favourable position on party lists.106 If the existing
single-member districts remain badly apportioned,107
the new electoral system may not be more
representative than its predecessors. If it is to make a
difference, regulations that force parties to make their
selection of candidates inclusive will be necessary,
something that may be included in new legislation.108
Crisis Group Report, Nepal's Peace Agreement, op. cit, p. 14.
106 Proportional representation will not in itself ameliorate
social and political divides. See Crisis Group Report, Toward
a Lasting Peace in Nepal, op. cit; Giovanni Sartori,
Comparative Constitutional Engineering: An Inquiry into
Structures, Incentives and Outcomes (New York, 1997), pp.
58-61.
107 Crisis Group interview, international electoral expert,
Kathmandu, October 2006.
108 "Act to tame parties in the offing", Himalayan Times, 22
February 2007. Maoist leader Dinanath Sharma said the
CPN(M) had insisted on including a clause in draft legislation
C.      PROCEDURES
The CA will convene on the 21st day after election
results are issued.109 The interim constitution
establishes an unusual decision-making system. The
question of the "continuance of the monarchy" is
straightforward: the CA must decide this by "simple
majority in the first meeting".110 However, the
remaining provisions are expected to be adopted
unanimously, with time-consuming procedures for
fresh consultations and voting if there is even one
opposing vote. Each provision will be voted on in
sequence and adopted if a quorum of two-thirds is in
attendance and no opposing votes are cast.111
Failing this, parliamentary party leaders must "consult
each other to achieve consensus in such matters".112
This consultation has to be completed within fifteen
days and a fresh vote held within a further seven days -
again with the requirement of unanimity for
adoption.113 If there is still opposition, a final vote can
pass the provision by a two-thirds majority if there is
also a participating quorum of at least two-thirds of
the CA.114 Separately, an absolute two-thirds vote can
decide to refer to referendum "a decision on any
matters of national importance, except when this
conflicts with provisions elsewhere in the constitution".115
This excludes, for example, a referendum on the
monarchy.116
requiring parties to include representation from all regions and
communities.
109 Interim constitution, Art. 69(1).
110 Ibid, Art. 159(3).
111 Ibid, Art. 70(l)-(2). It is unclear from the text what happens
if members in attendance abstain from voting.
112 Ibid, Art. 70(3).
113 Ibid, Art. 70(4)-(5).
114 Ibid, Art. 70 (6).
115 Ibid, Art. 157. It is unclear whether the CA can order a
referendum on constitutional provisions, as the procedure for
decision is specified in the interim constitution; it may be that
the interpretation of "matters of national importance" would
be restricted in practice to non-constitutional issues.
116 Interim constitution, Art. 159(3) applies "notwithstanding
anything contained elsewhere in this Constitution", including
Article 157. The two-third voting rule is designed to
encourage efforts to forge fairly wide consensus and does not
appear contentious, though in other national contexts a similar
rule has been the subject of considerable controversy. Between
August 2006 and January 2007, for example, the Bolivian
constituent assembly was deadlocked as the governing party
and its opponents locked horns on whether to have a simple
majority (the former's preference) or a two-thirds majority
rule. In January 2007, the governing party agreed to a two-
thirds rule, but supported violent street protests that threatened
to sink the constituent assembly. See Crisis Group Latin
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Crisis Group Asia Report N° 128, 26 February 2007
Page 13
These provisions address certain potential problems
but also raise their own difficulties. Disposing ofthe
most emotive issue - the monarchy - at the outset
should avoid the polarising danger of a referendum
but could sour later debates as one group of delegates
will have secured an enormous and immediate victory
while others will have suffered a substantial setback.
This risks making compromise and negotiation within
the assembly more difficult; the result of the
monarchy vote could also prompt spoiling efforts by
disaffected outside groups.
Following the initial high-pressure meeting, the
structural bias towards consensus-based decisions
may either assuage tempers or allow losers to vent
their frustration by obstructing progress. The unusual
insistence on unanimity could push even barely
contentious provisions to political party deliberation
and a second or third vote. Delegating second-order
deliberations to "political leaders" would shift
authority from the elected body and invite a
continuation of the top-level backroom deals that
characterised the earlier peace negotiations. The
provision for flexibility over referendums is sensible:
constitution-making bodies often re-engineer their
mandates and procedural rules when faced with
unexpected consequences.117
The interim constitution is silent on a number of
significant matters. Critically, it says nothing about
how the CA will generate provisions or decide how to
vote on them. For example, if different parties put
forward competing versions of the same provision no
means is specified for determining which to vote on
first. Yet, the power to set the voting agenda can be
decisive: where there are multiple options the
sequencing of votes can shape the outcome.118 Here,
too, important second-order decisions may well
devolve to party leaders in closed-door discussions.
This could emasculate the CA, with opaque private
deliberations undermining public trust.
Options for discussion might be drafted by a technical
entity such as the ICDC, although its weaknesses
would have to be addressed in a new body. The
America Briefing N°13, Bolivia's Reforms: The Danger of
New Conflicts, 8 January 2007.
117 Jon Elster, Ulysses Unbound: Studies in Rationality,
Precommitment, and Constraints (New York, 2000), pp. 105-
107.
118 In the 1787 Philadelphia Convention that drafted the U.S.
Constitution, for example, advocates of a strong federal
government were able to set the course by opening debate
with their model constitution, the Virginia Plan. Jack N.
Rakove, Original Meanings: Politics and Ideas in the Making
ofthe Constitution (New York, 1996), pp. 59-70.
alternative texts for different constitutional provisions
that it listed were simply those supplied by the parties
themselves rather than by neutral experts. Alternatively,
cross-party CA committees with technical support
could carry out this task. In either case, a separate
drafting body would develop options which would be
available both to the plenary and the general public
for critical examination. Issues such as these may be
addressed in the procedural rules of the CA but will
have to be negotiated in advance.
The interim constitution alludes to committees within
the CA but leaves their responsibilities to be
determined by a subsequent law or the CA itself119
This is an important topic and deserves careful
scrutiny. Committees, rather than ad hoc political
negotiations, should play a part in setting the CA
agenda and voting order in accordance with clear pre-
established rules; they should also be subject to public
scrutiny. Their composition is significant: a fair cross-
section of members with reasonable independence
from party leaders would promote more open and
vigorous debate. Arguably, any law regulating CA
procedures would be subject to revision by the
assembly itself: as the sovereign representative of the
Nepali people, its authority supersedes that of the
political factions that drafted the interim constitution.
D.      THE CONSTITUENT ASSEMBLY AS
LEGISLATURE
The CA's dual function as constitution-making body
and legislature was decided without detailed
consideration of process-related implications. SPA
and Maoist leaders cited only cost savings from a
dual-function body as justification for their decision.120
There are other practical justifications for the double
role: once the CA is elected, the interim legislature
would have minimal legitimacy and there is little
reason to elect a separate legislative body
simultaneously. However, the CA's twinning of roles
raises the possibility of negotiated trade-offs between
short-term legislative and long-term constitutional
issues.121 Such compromises risk undermining the
integrity ofthe final draft.
Interim constitution, Arts. 78,79.
120 Crisis Group interviews, Kathmandu, October 2006.
121 The most common model for a dual-function
legislature/constituent assembly is India's 1946 Assembly.
That body, however, "was, in effect, a one-party assembly, in
the hands of the mass party, the Indian National Congress."
Granville Austin, The Indian Constitution: Cornerstone of a
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Crisis Group Asia Report N° 128, 26 February 2007
Page 14
Like any other large elected body, a CA will be
characterised by horse-trading and log-rolling. Given
the high stakes - the power to rewrite the rules of the
political game - members may employ greater efforts
than usual to achieve their ends. In a combined
legislature/constitution-making body, extra-constitutional
resources (such as votes on ordinary legislation,
favours outside political life) may become bargaining
chips for constitutional issues.122 Constitution making
always involves negotiated compromises between
political visions, with the result that the final
document is often a cumbersome blend of ideologies.
However, limiting bargaining to constitutional issues
makes sense: if delegates can bargain away important
constitutional features in exchange for short-term
party or personal gains, this will detract from the
substance ofthe constitution and sap public confidence.
There are ways of limiting this risk. First, a restricted
mandate for the CA as legislature would limit
opportunities for horse-trading. Although the interim
constitution imposes no restrictions, party leaders
could agree to avoid all but essential legislation
before a permanent, and more legitimate, legislature
is in place. Secondly, effective mechanisms for
collecting and reporting public views could help to
constrain improper bargaining by establishing
independent benchmarks against which CA decisions
could be assessed. Thirdly, public involvement and
demand for transparency could moderate representatives'
behaviour. CA candidates could commit publicly to
refrain from deal-making that links constitutional
issues to short-term, parochial goals, while transparency
in CA debates (with delegates having to explain their
positions) would further limit improper bargaining.
processes involving extensive public consultation and
official responses, however, tend toward the longer
end ofthe range. The need for a state of emergency to
permit an extension could lead to difficulties. If the
CA is deadlocked, with mounting tensions, there
could be an unhealthy temptation to use emergency
powers to short-circuit constitutional debate. This
problem would be especially acute if emergency
powers were de facto concentrated in a strong prime
minister who wishes to retain power. The provision
for an early dissolution of the CA (by resolution
passed by its own members)125 also raises the
worrying possibility of the constitutional process
being suspended mid-way without any framework for
the continuance of executive, legislative or
constitution-drafting functions.
Still, the schedule is feasible and sets a useful target.
A slipping timetable would risk undermining public
confidence by raising suspicions that key players
were unwilling to hand over power. Delays in the
CPA and interim constitution negotiations spurred
public concern about the parties' desire and capacity
to deliver peace;126 both sides' credibility was
damaged by their inability to explain the slippage.127
Further delays are unlikely to benefit either the SPA
or the Maoists: if the momentum of the people's
movement and the peace process is lost, their
opponents stand to gain, and too much messy
"muddling through" might prompt nostalgia for more
authoritarian rule. A process that hews to the original
timeframe will not only be legitimate but may more
accurately reflect the broader popular aspirations of
April 2006.
E.      DURATION
The interim constitution gives the CA two years to
complete its work, with a possible six-month extension
in case of a "declaration of an emergency
situation".123 This time-frame is consistent with recent
international     experience.
Constitution-making
Nation (Delhi, 1966), p. 2. It thus did not have the tensions of
a multi-party body.
122 This has long been a pervasive feature of constitution-
making. See Jon Elster, "Arguing and Bargaining in Two
Constituent Assemblies", University of Pennsylvania Journal
oj'ConstitutionalLaw, vol. 2, 1999-2000, p. 392.
123 Interim constitution, Art. 64.
124 East Timor drafted its constitution in about six months,
Rwanda took 24 months, Uzbekistan fifteen and Kazakhstan
eighteen. The Iraqi Transitional National Assembly elected in
January 2005 had seven months to complete a constitution; the
final product hardly impacted the country's deep social and
ethnic conflicts. See Crisis Group Middle East Report N°42,
Iraq: Don 'tRush The Constitution, 8 June 2005.
125 Interim constitution, Art. 64.
126 The interim constitution failed to appear at the end of
November 2006 as stipulated in the CPA.
127 Some steps in the negotiations were explained. See, e.g.,
"Talks Adjourned on Positive Note," Kathmandu Post, 9
October 2006, p. 1. But these were exceptions.
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Crisis Group Asia Report N° 128, 26 February 2007
Page 15
V.     THE POLITICAL PLAYERS
The constitutional transition will only be successful if
it establishes democratic space and practices. None of
the major political actors has a perfect record in this
regard. The primary objective of the constitutional
process is to protect democracy and fundamental
rights by cementing the peace deal and the Maoist
transition to multiparty politics, as well as removing
the openings for power-grabs that the palace exploited
under the 1990 dispensation. However, internal
reform ofthe mainstream parties will also be essential
if a more representative, responsive and inclusive
democracy is to take root.128
Dynamics within the interim legislature and CA may
support these processes: there is little likelihood of
the palace regaining any constitutional powers, the
mainstream parties know it is in their interests to
foreclose a possible resumption ofthe insurgency, and
the Maoists have indicated they will push for a
reformed multiparty system that does away with what
they see as the weaknesses ofthe older, elitist model.
But solid progress depends on closer attention to
process and substantive issues and is prey to the goals
of hierarchical leaderships who may find common
cause in resisting certain changes.
A.      THE MAINSTREAM PARTIES
1.       Views on constitutional substance and
procedures
Party leaders did not focus on procedural questions
(such as the CA's mandate or rules for agenda-setting
and voting) until late in the negotiating process.
Substantive issues (such as the future ofthe monarchy
and regional devolution) have received much more
attention, and on some there is already detailed
consensus within parties.
Nepali Congress (NC). During the peace negotiations,
the NC operated in its usual centralised way, key
decisions being taken by the party president, G.P.
Koirala, without consultation with the broader
membership.129 Koirala took advantage of his developing
This is true of other constitution-making situations. See
Crisis Group Asia Report N°. 56, Afghanistan's Flawed
Constitutional Process, 12 June 2003, pp. 27-29.
129 The same was the case for the selection ofthe ten additional
members of the interim legislature, where Koirala over-rode
other party leaders' wishes. See below and Bishwamani
Pokhrel, "Pariwar moh", Samay, 25 January 2007.
personal relationship with Maoist leader Prachanda to
push the process forward130 at the expense of building
the party's capacity to develop stable internal
consensus on difficult issues.131 Different NC factions
incline towards republicanism or preserving the
monarchy;132 there is confusion about whether and
how the state ought to be restructured. One central
committee member explained that federalism was
"out of the question" but that some Congress leaders
would support provincial governments with elected
assemblies and substantial budgetary authority -
implying that NC is uncomfortable with the label but
may concede an almost-federal structure.133 Other
central committee members expressed reservations
with this formulation, arguing that division of the
country into discrete units would leave some sections
vulnerable to "geopolitical" (i.e. Indian) influence.134
In the event, the January 2007 Tarai unrest has pushed
the party leadership towards accepting a joint SPA-
Maoist platform of federalism in a concession to
Madhesi activists. The other major area of disagreement
is over the crucial question of restructuring the army
and integrating former Maoist fighters into a new
national force.
Congress thinking on the structure and functioning of
the CA, a central committee member conceded,
remains "in a rudimentary state", although the party
has long had a clear antipathy toward proportional
representation, which is perceived (perhaps incorrectly)
as threatening its electoral advantage.135 By delaying
taking a position on the monarchy, NC has reduced
royalists' opportunity to rally before the CA elections
and hopes to improve its chances of capturing
generally pro-palace votes without permanently
alienating its republican-inclined cadres.
Crisis Group Report, Nepal's Peace Agreement, op. cit;
Crisis Group interview, NC central committee members,
Kathmandu, October 2006.
131 To the extent an "established" route exists: it is by the word
of the prime minister. Especially given the present prime
minister's age and health this is hardly a durable solution.
132 Crisis Group interview, political scientist, Kathmandu, 8
October, 2006.
133 Crisis Group interview, NC central committee member,
Kathmandu, 14 October 2006. Federalism, particularly to the
end of ensuring ethnic autonomy, takes many different forms.
See Yash Ghai (ed.), Autonomy and Ethnicity: Negotiating
Competing Claims in Multi-ethnic States (Cambridge, 2000).
134 Crisis Group interview, NC central committee member,
Kathmandu, 19 October 2006.
135 Crisis Group interview, NC central committee member,
Kathmandu, 18 October 2006.
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Page 16
UML. The UML is also divided on substantive issues
and little concerned with issues of process. The
central committee has endorsed republicanism but
factions within the party still quietly take divergent
positions.
The     party     favours     proportional
representation for a new national electoral system -
the country would be divided into fourteen zones
(probably the current ones), each with party lists that
would have to include certain percentages of ethnic,
women and dalit candidates. The zones would also be
units on which some tax and resource allocation
authority would be devolved.137 Leaders are less clear
about the functioning of the CA (for example, voting
rules and the division of labour between plenary and
committee sessions). "There's a need to study the
realities of a constituent assembly", a senior central
committee member admitted.138
NC(D). An offshoot of the NC, it has also reserved
judgement on the monarchy, its hesitation partly
prompted by the two parties' possible reunification.139
A central committee member, however, observed that
his party was "more progressive" than NC and
criticised the palace's habit of disrupting
democracy.140 Similarly, while the NC(D)'s January
2006 general convention endorsed federalism, the
party has taken no clear position on how this ought to
be achieved.141 Despite adopting certain policy
positions close to the CPN(M), the NC(D) (and
especially its leader, Sher Bahadur Deuba) has been
consistently critical of Maoists.
Other SPA parties. For the NSP, key issues are
proportional representation, citizenship for Madhesis
and the introduction of federalism.142 Along with
other Tarai-based political groups, it has criticised the
interim constitution's retention ofthe FPTP electoral
system and demanded further reforms before polls
can go ahead. The smaller SPA parties have had
minimal impact on the negotiations, although in many
cases they have more fixed positions on constitutional
issues.
Non-SPA parties. The traditionally pro-palace
Rashtriya Prajatantra Party (RPP) and Rashtriya
Janashakti Party (RJP) are not part of the SPA and
have had only a marginal role in post-April 2006
events, despite being represented in parliament and
seeking to operate as a constructive opposition. While
they voted with the SPA to approve the interim
constitution, both parties are pushing for amendments;
the RPP has hinted that it will take a less palace-
friendly line but has yet to clarify new policies.143
Neither party opposed the interim legislature's
condemnation ofthe king's 19 February 2007 Democracy
Day address that sought to justify the royal coup.144
The parties' concentration on selected substantive
matters has overshadowed consideration of the
procedural choices involved in constitution making.145
This may explain some of the weaknesses and
inconsistencies ofthe interim constitution but is not a
crippling problem: the interim constitution's enactment,
with the formation and operation of interim institutions,
will likely stimulate crisper views on process.
2.       Democratic reform
Mainstream party behaviour will have a critical
impact on the shaping of a new constitution and its
democratic credentials.146 The dynamics of the
process will present both opportunities and risks. The
parties have acknowledged past failings, promised to
change and are being pushed by the generally
reformist public mood. The chances for positive
change are much greater than when they had their
Crisis Group interview, UML central committee member,
Kathmandu, October 2006.
137 Crisis Group interview, UML General Secretary Madhav
Nepal, Kathmandu, 12 October 2006.
138 Crisis Group interview, UML central committee member,
Kathmandu, October 2006.
139 The two parties are likely to reunite before the CA
elections. Crisis Group interviews, NC and NC(D) central
committee members, Kathmandu, October 2006. See Crisis
Group Report, Nepal's Peace Agreement, op. cit. for an
explanation of the political calculations involved in
reunification.
140 Crisis Group interview, NC(D) central committee member,
Kathmandu, October 2006.
141 Crisis Group interview, NC(D) central committee member,
Kathmandu, October 2006.
142 Crisis Group interview, NSP(A) central committee
member, Kathmandu, October 2006.
The RPP has generated two more aggressively royalist but
not very influential offshoots: the RPP (Nepal) and RPP
(Nationalist).
144 The interim legislature unanimously passed a motion of
censure demanding government action against the king,
"House directs govt to act against king", Himalayan Times, 22
February 2007.
145 The two key issues are: the horizontal division of authority
between the three branches of central government -
legislature, executive and judiciary; and the vertical allocation
of responsibilities between the national government and sub-
national units at the federal, provincial or local level.
146 Parties, indeed, are "an essential part of the democratic
system" because "it is political parties which set up the
candidates, and campaign actively for votes" and embody "the
constant flux of interest formation in society" in a way that
more fixed constitutional settlements cannot. Sudipta Kaviraj
(ed.) Politics in India (Delhi, 1997), pp. 255-261.
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Crisis Group Asia Report N° 128, 26 February 2007
Page 17
backs to the wall after the royal coup. However, the
nature of coalition government in the run-up to a
hotly contested election will likely encourage them to
revert to less palatable, but tried and tested, tactics:
they will need cash to run campaigns (and have
limited scruples on its origins) and senior leaders may
be more concerned about their personal prospects
than principles of inclusion. The SPA's distribution of
interim legislature seats initially intended for
independent civil society nominees shows how far
there is still to go: all went to party members (mostly
senior leaders and, in the case of NC, even to relatives
of G.P. Koirala).147
The hierarchical, patronage-based parties have done
little to address social grievances, while past
perceptions of corruption and incompetence boosted
support for the palace and the Maoists as potentially
more effective alternative rulers. The unrest in the
Tarai that has been building since late 2006 is only
one indication of the dangers invited by the political
elite's narrow base.148 At the same time, however, it
offers more positive inspiration: in an election where
many voters are disillusioned, and major parties may
have few distinctive policies, reaching out to
marginalised communities is one of the most
promising strategies to win new voters. This has not
been the parties' forte - had they taken this route in
the early 1990s, the Maoists might never have been
able to take root - and even regional-based groups
such as the NSP(A) have found themselves
outflanked by more extreme rhetoric. But Tarai
grievances are not unreasonable and key demands are
all negotiable. This could yet be a useful wake-up call
for party leaders.
Internal democracy also needs attention. It is
unrealistic to expect hierarchical parties to transform
their organisational dynamics overnight but most
parties would benefit from more transparent internal
debate. The difficulties they are facing in reaching
decisions on contentious issues would be reduced if
there were productive discussion at all levels of the
The parties split the 48 seats to benefit themselves rather
than to provide wider representation, as the interim
constitution demands. Apart from allowing the inclusion of
the ULF, which was not represented in the 1999 parliament,
these seats were meant to go to "people-based and
professional organisations, class organisations and
professional bodies, oppressed ethnic groups, backward
regions, indigenous communities, women and various political
personalities nominated through understanding", interim
constitution, Art. 45(c). The division was: ten seats each for
the NC, UML and CPN(M); six for NC(D) and three each for
NSP(A), NWPP, ULF and Janamorcha Nepal.
148 See below.
party. Deeper policy debates could also draw on
outside expertise, as well as on the direct experience
ofthe local party activists, who are most in touch with
the public.
Steps along these lines would start to address the
corrosive influence of patronage. Within most parties,
leaders with financial resources build personal
followings, secure party offices and reward their
followers with jobs and money-making opportunities.
Potential leaders who are short of cash may find
themselves unable to rise if less scrupulous rivals buy
promotions.149 Transparency in debate and decisionmaking, including on key constitutional questions, is
one means to dilute patronage power and reduce its
impact on policy choices.
In the interval before the CA, the parties might also
benefit from more inclusive internal debates on
procedural and substantive constitutional matters. To
articulate more meaningful constitutional agendas,
they could draw on academics, lawyers, and
journalists, who have been sidelined in the past. Both
Congress and the UML, for example, have cadres
who bring intellectual heft to bear on difficult
political issues, although they have had little part in
policy-making. As a former adviser to a senior NC
leader explained, opportunities for their substantive
input are ill-structured and often frustrated.150 Parties
could introduce a system of "position papers" by
academics and lawyers to present options on different
constitutional issues. Creation of such opportunities is
largely a question of intra-party initiative. Strengthening
their intellectual and policy-making capacities is one
way to professionalise parties and diminish patronage-
based politics.
B.    The Maoists
The Maoists have in successive agreements promised
to join competitive multiparty politics.151 While the
interim constitution has sidelined the monarchy and
opened the door to a share in government, the CA
elections will be the critical point for the leadership to
justify its revised strategy to cadres. However much it
insists its approach has changed, there will be an
Crisis Group interview, Nepali political analyst, Lalitpur,
October 2006.
150 Crisis Group interview, Kathmandu, October 2006.
151 The most significant commitment was made in the
November 2005 twelve-point agreement, Crisis Group Report,
Nepal's New Alliance, op. cit; it was reaffirmed in subsequent
agreements, including the CPA and the interim constitution.
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Page 18
ingrained tendency to rely on long-standing tactics of
intimidation and coercion.
Nevertheless, the Maoists have potentially strong
issues on which to campaign - their selection of
representatives for the interim legislature indicates the
ease with which they can present a more progressive
public face than the mainstream parties. Despite
opinion polling efforts, no one can confidently predict
their share of the vote. Many non-Maoists will be
hoping for a happy medium: high enough to lock
them into the process and feel they have a stake in
making it work but not enough to give them decisive
influence. But the Maoist leadership will need to
show some results if cadres are not to be alienated:
the decision on the fate of the monarchy will be an
early test.
1.       Views on constitutional substance and
procedures
The Maoists are in one respect victims of their own
political success - the mainstream parties' endorsement
of their headline constitutional change agenda
threatens to undermine their unique appeal. Maoist
leaders, however, see the parties' promises to address
social exclusion as rhetoric, not real commitment (an
interpretation for which mainstream party behaviour
gives some evidence). Aggressive republicanism
distinguishes them from their rivals, especially
Congress.152 In the meantime they plan to use the
interim legislature and continued street demonstrations
as twin means to push their agenda.153
According to Maoist leader Baburam Bhattarai, the
party expects to win a majority in CA elections but
would remain in the assembly with a smaller share of
the vote.154 A Maoist majority is implausible, even if
not altogether impossible; more likely is a
respectable, but less than decisive, share. One August-
September 2006 poll suggested they could secure
about 15 per cent (against 25 per cent each for NC
Crisis Group interviews, Maoist leaders and cadres,
Kathmandu, October 2006. Some Congress-oriented
commentators argue that since late 2005 Maoists publications
have used the phrase "end of absolute monarchy," rather than
"abolition" of the monarchy, allowing for some compromise
with NC's ceremonial monarchy proposal. Krishna P. Khanal,
"The Maoist Agenda of Restmcturing the State: An
Appraisal", in Lok Raj Baral (ed.), Nepal: Faces of
Insurgency (Delhi, 2006), p. 165.
153 "Maobadile sadak ra sadanbata eksath awaj uthaune",
Janadesh, 30 January 2007.
154 Crisis Group interview, Bhaktapur, October 2006.
and UML);155 a subsequent September survey put the
Maoists at 16 per cent, but ahead of all the other
parties, a finding repeated in a January 2007 survey.156
Still, the Maoists calculate they can build their
electoral base by pointing to their consistently
republican line, as well as by capitalising on
discontent with the mainstream parties' failure to
address regional, ethnic group and caste differences.157
Their yield of seats will also depend on the
proportional system adopted; a multi-member system
would compensate for their expected weakness in
FPTP constituencies (but it appears that this option
has been rejected; see above).
Beyond their vigorous opposition to the monarchy,
the Maoists have a broad agenda - although more
detailed in some parts than others. Presenting themselves
as the party of the previously disenfranchised, with
"anti-feudal" policies, gives possible widespread
appeal. According to a senior military commander,
voters will have four reasons to be attracted to the
Maoist platform - class, regional origin, gender or
ethnicity. Through "scientific" land reform, select
industrialisation and devolution of economic power to
a local level, the Maoists claim they will be able to
ameliorate the position of these previously excluded
groups.158 By contrast, Bhattarai argues, the mainstream
parties such as the NC and UML "represent the same
class groups and the big capitalist groups" and not the
general populace.159 Unsurprisingly, the Maoists have
pushed for early land reform within the transitional
process, even securing a commitment from the SPA
to this in the CPA.160 A central concern ofthe Maoist
"Nepal:  A Cautiously Optimistic Public",  Greenberg
Quinlan Rosner Research 17 September 2006, p. 13.
156 Both the September 2006 and January 2007 polls were
carried out by Interdisciplinary Analysts. Their findings are
presented comparatively in "Nepal Contemporary Political
Situation IV: Political Opinion Poll Top-Line Findings",
Interdisciplinary Analysts, 5 February 2007, Kathmandu.
While the positions of all parties remained broadly similar in
these two surveys, "don't know/cannot say" responses
increased from 15.5 to 27.3 per cent, suggesting that
undecided voters may form a crucial swing constituency.
157 The January 2007 merger of the independent Society for
the Liberation of Dalit Castes Nepal (SLDCN) with the
Maoists' Nepal Dalit Liberation Front suggests the CPN(M) is
actively pursuing strategies to tie in such support. "Dalit
morchaharubich ekikaran", Janadesh, 30 January 2007. The
SLDCN's Padmalal Bishwokarma was nominated by the
Maoists as one of then ten non-party MLPs; Maoist central
advisor Tilak Pariyar is now coordinator of the merged
organisation
158 Crisis Group interview, member of Maoist negotiation
team, October 2006.
159 Crisis Group interview, Bhaktapur, 16 October 2006.
160 CPA, para 11.
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reform agenda is the army, which they insist must be
completely restructured. They also call for
punishment of individual officers responsible for war
crimes.161
2.       Democratic reform
The Maoists have much more to do to establish solid
democratic credentials but the constitutional process
may both encourage and hinder this. Their likely
behaviour will be conditioned as much by shifting
external dynamics as by their established political and
organisational culture. Reformers within the
movement may be boosted by successful participation
in an interim government but the fact that this
foothold in central power had to be gained at the cost
of demanding that low-level cadres surrender local
influence increases vertical tensions. Maoist leaders
have shown they can adapt their tactics and reorient
their strategy to make the most ofthe process. They
probably remain Nepal's most disciplined and
effective political force but they are not immune to
miscalculation, internal disputes and personality
clashes.
The start of real campaigning will force the Maoists
to pay more attention to the support they currently
have and the level of backing they can hope to build.
This, too, may invite negative responses (such as
resorting to intimidation or coercion), positive
initiatives to win hearts and minds by demonstrating a
reformed character and showcasing popular policies
or - most likely - a combination of both. Interestingly,
they have already rehabilitated some former leaders
who had left the party or surrendered to the
government.162 Leaders are well aware that certain
behaviour, such as "tax" collection, is deeply unpopular;
they have also acknowledged that they have made
"mistakes" in the course of their insurgency and need
to make amends.163 But they are wary of relinquishing
forms of power that can still be used as bargaining
chips, are worried about alienating cadres and
calculate that some of the measures they were meant
to relinquish (such as their "people's courts") may
still boost their popularity.
Although the Maoists have proved adept at public
debate, they are not yet comfortable with some forms
Crisis Group interview, Baburam Bhattarai, Bhaktapur, 16
October 2006.
162 Crisis Group interviews, Maoist cadres, Kathmandu,
January 2007.
163 The most notable such apology was made by Prachanda in
his first official public appearance in Kathmandu, addressing a
large crowd of supporters on 13 February 2007.
of discussion. Leaders express ambivalence about
independent public outreach efforts in terms that
suggest they could try to obstruct them. According to
Bhattarai, civil society-led public education is "not
necessary"; funds "are better spent on the poor than
on creating a new class that benefits from the
constitution-making process".164 Whatever the flaws
of NGO public education efforts, however, neither the
Maoists nor any other political party is entitled to
block them. The CPA commits its signatories to
respect the "fundamental rights of the Nepalese
people to cast their votes in the CA polls without any
kind of fear" - an expansive repudiation of coercion
which includes respect for education, campaigning
and debate in the run-up to the polls. However, the
peace deal does not entirely eliminate Maoist capacity
for armed violence: it does not mention their militia
forces, and the arms management process is unlikely
to be watertight.
Still, the Maoists do not appear to have obstructed
civil society efforts so far; nor have their violations of
the CPA been as egregious as some reports imply.
They have allowed re-establishment of hundreds of
police posts and have been willing to compromise
with the SPA and actively cooperate on certain
matters. Most encouragingly for those Maoists who
want to make a success of multiparty politics - and
most discouragingly for those who hoped the mainstream
parties would reform and reassert themselves - the
SPA has left the Maoists considerable space in which
to operate. Their selection of interim legislature
members was a masterstroke, with their diverse
contingent in stark contrast to the conspicuously
unrepresentative delegations of the mainstream
parties. The latter sacrificed a chance to win back
ground by using their "civil society" nominations to
give seats to their own inner circles. Only the Maoists
nominated a range of non-party members, who they
said, would be free of the party whip to vote with
their conscience. Competitive politics may offer the
Maoists significant openings to win real electoral
support.
C.      THE RELUCTANT, THE RESISTANT AND
THE REBELLIOUS
Although no single spoiler is likely to be able to
derail the constitutional process, a number of political
groups and institutions are far from enthusiastic
supporters. The palace is not ready to cooperate in its
own   dissolution;   the   army   may   not  go   on  the
Crisis Group interview, Baburam Bhattarai, Bhaktapur, 16
October 2006.
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Page 20
offensive to rescue it but will resist major structural
reform. Neither the interim constitution nor the CA
will find it easy to displace entrenched institutional
practices with new, untested rules. Unwritten
conventions underwrite the palace's maintenance of
some influence, especially with the survival of the
palace secretariat.165 Institutions such as the civil
service have been a source of stability during periods
of rapid change but may become barriers to reform.
Violent groups (especially those in the Tarai) may
make more active attempts to disrupt the process.
They, in combination with weak response to
grievances which could be addressed by negotiation,
will present the most serious threat if they choose to
oppose the polls and mobilise enough support to
make parts of the country ungovernable - a tactic in
which the Maoists have provided master classes.
The palace. The palace has played no overt role in
negotiating the constitutional transition, although it
has not lost all its allies or means to exert some
influence. In late 2006, the king started selective
consultations about political developments but said he
would maintain a "respectful silence".166 Nevertheless,
just days after his car was stoned when he visited
Pashupatinath temple on the occasion of the
Shivaratri festival, he risked another political venture
by making a public address on Democracy Day.167 He
attempted once again to justify the royal coup,
arguing that "it is clear that the prevailing situation
compelled us to take the 1 February 2005 step in
accordance with the people's aspirations...".168 This
renewed foray seems unlikely to boost the monarchy's
dwindling popularity. Gyanendra lost much of his
personal influence by failing to deliver on the
promises he made when he  seized power.169 His
For example, the NA performed a ceremonial salute for the
king on the occasion of the Basanta panchami religious
festival. Similarly, Chief of Army Staff Rookmangad Katwal
had continued the traditional practice of paying respects to the
king during the autumn Dasain festival. See Crisis Group
Report, Nepal's Peace Agreement, op. cit.
166 King Gyanendra has met former Prime Ministers Surya
Bahadur Thapa, Kirtfnidhi Bista and Lokendra Bahadur
Chand and other royalist politicians such as Bishwabandhu
Thapa, Pashupati Shamsher Rana and Rabindra Nath Sharma.
"Ke gardaichha darbar", Samay, 18 January 2007.
167 The address was apparently not authorised by the
government but was nevertheless broadcast on state-run
media, prompting questions over who had approved or
allowed it.
168 King Gyanendra Democracy Day address, 19 February
2007.
169 The King's failure to capitalise on his February 2005 move
was rapidly evident. See Crisis Group Asia Report N°106,
Nepal's New Alliance, op. cit, pp.25-26.
relative restraint since April 2006 has not restored his
image: surveys suggest that support for retaining the
monarchy continues to shrink.170
That the monarchy's future will be decided in the CA
and not by a referendum means royalists will not have
a clearly defined moment around which to rally
support.171 This may promote stability in the CA
election process, where the monarchy will be only
one of several prominent issues. Monarchists will
have to mobilise as a political party, or through
influencing other parties, rather than by direct appeal
to the public.172 This may benefit the palace:
manipulating a small number of CA delegates may be
more promising than trying to persuade sceptical
voters.
The king's fall from power and popularity does not
automatically mean an end to the royal institution.
Congress and the NC(D) may back a ceremonial role -
or at least not rule it out - with an eye to winning
support from those who still want some sort of
monarchy.173 However, the public mood is making
leaders rethink their position: a motion condemning
the king's Democracy Day address and demanding
action against him was introduced into the interim
legislature by the NC. Pro-palace forces still retain
some stake in the political transition. Despite the
exclusion of hardline royalists from the interim
legislature, monarchists will have a voice in pre-
A September 2006 opinion poll suggested that 48 per cent
ofthe population wanted to keep the monarchy - with support
higher among women and older people, Greenberg Quinlan,
op. cit, p. 52. However, four opinion polls conducted by
Interdisciplinary Analysts suggest support for retention of the
monarchy has been falling, from 80.6 per cent in December
2004 to 44.9 per cent in January 2007, "Nepal Contemporary
Political Situation IV, op. cit.
171 In 1980 the palace used a referendum to shore up the
Panchayat system, then under attack from demonstrating
students. Although the 1980 referendum ended in an
endorsement ofthe Panchayat system (with a 54.8 per centyes
vote), the narrowness of the vote was viewed as a moral
victory for democratic forces. Lok Raj Baral, Nepal's Politics
of Referendum: A Study of Groups, Personalities and Trends
(Vikas Publishing House, 1983); R. Andrew Nickson,
"Democratization and the Growth of Communism in Nepal",
in Deepak Thapa (ed.), Understanding the Maoist Movement
of Nepal (Kathmandu, 2003), p. 7.
172 A referendum would also have surfaced and emphasised
deep-seated social differences just at the moment when
Nepalis were seeking consensus on many of difficult political
questions. Crisis Group interview, former NC advisor,
Kathmandu, October 2006.
173 See Crisis Group Report, Nepal's Peace Agreement, op.
cit, for an explanation of NC political calculations on the
monarchy.
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Page 21
election debates and will presumably win some
representation in the CA.174 This reduces their
incentive to reject or disrupt the process but the
electoral arithmetic is still far from favourable for
them.
The army. The Nepalese Army (NA) remains wary
of the peace process and suspicious of both the
Maoists and the mainstream parties. Nevertheless, it
has been conspicuously well behaved in its involvement
in the mechanics ofthe peace process. Senior officers
have no desire to integrate large numbers of former
Maoist fighters into a restructured national force and
are happy to delay discussion of such changes. But
day-to-day cooperation with Maoist commanders and
the UN on the Joint Monitoring Coordination
Committee (JMCC) has been positive and has helped
the cantonment process move forward in a
constructive atmosphere.175 The NA has little outlet
for its conservative political instincts: it has been
unable (perhaps unwilling) to prevent the monarchy's
marginalisation, while gradual moves to reduce its
autonomy have not been dramatic enough to prompt
resistance.176
The NA successfully - and crudely - pressured the
post-April government not to interfere in its chain of
command but now faces internal political challenges.
The then number two, Rookmangad Katwal, ensured
his succession as chief of army staff but has
discovered this is a mixed blessing. Viewed with
suspicion by some as an outsider (he is not from a
traditional officer clan) and by others as too fanatical
a royalist, he must guide the army through a difficult
In general, ethnic advocates for redivision of the country
along ethnically defined lines approach the coming political
transition as if past political elites, and in particular high-caste
Bahuns and Chhetris, no longer have political power or a large
stake in the political process. Crisis Group interviews, ethnic
rights NGOs, Kathmandu, October 2006. This is a
miscalculation. Advocates for greater equity in Nepal's
national political arrangements are more likely to achieve their
goals if they can persuade still-powerful elites that this is in
their interests. By presenting their grievances in zero-sum
terms, ethnic activists undercut then political aspirations.
175 Crisis Group interviews, JMCC members, Kathmandu
December 2006 and January 2007. PRSG Ian Martin
commented that "The JMCC is now meeting regularly, with
excellent cooperation between the Nepal Army and PLA
representatives, and between each of them and the United
Nations". Press Statement, 5 January 2007, OPRSG,
Kathmandu.
176 Some messages suggesting a distinct cooling of relations
with the palace have been sent. For example, the king's last
principle military secretary, Major-General Gajendra Limbu,
was quietly retired at the end of December 2006 when under
normal circumstances his term would have been extended.
transition. Despite a reshuffle of the higher ranks,
some senior positions are still vacant and, with no
three-star generals in country,177 Katwal looks slightly
isolated at the top. Securing his own position, the
army's basic interests and its international reputation
will probably leave little scope for active spoiling of
the peace process unless the broader political
landscape changes significantly.
The judiciary. One potential vehicle for disruption of
the constituent transition is the traditionally conservative
supreme court.178 Three separate petitions filed there
challenged the validity of the May 2006 House of
Representatives proclamation stripping the King's
powers.179 These efforts raised the possibility, albeit
remote, of a judicial order invalidating that
proclamation and the subsequent endorsement by the
House of the interim constitution. Supreme Court
judges had already refused to swear new oaths of
office on the basis ofthe May 2006 proclamation.
Chief Justice Dilip Kumar Paudel's eventual
willingness to swear a new oath of office to the prime
minister under the interim constitution suggests that a
compromise has been reached.180 Supreme court
judges had decided to call for amendment of the
interim constitution's judicial provisions but left it too
late to submit a proposal.181 It may be that demoralisation
reduces the court's willingness to deliver verdicts
against the executive. Nevertheless, dissatisfaction
within the judiciary (and among lawyers of various
The NA has two Lieutenant-General positions. One post
was left vacant by Katwal's promotion; the other is held by
Lt-Gen Balananda Sharma, who is shortly to return to Nepal
after a lengthy posting as a UN peacekeeping mission
commander. Delay and confusion in army promotions and
senior officer transfers has sparked discontent within the army
and towards the government. "Senama rajnitikaran", Saptahik
Vimarsha, 2 February 2007.
178 Among the Supreme Court decisions resented for then
conservative tilt is the 1 June 1999 order that prohibited the
use of local and regional language by local administrative
bodies under the Local Self-Governance Act of 1999.
Whelpton, A History, op. cit, p. 232.
179 These were filed by lawyers Achyut Prasad Kharel, Shree
Prasad Upadhyay, Amita Shrestha and Arun Subedi.
180 Paudel only agreed to take a new the oath under the interim
constitution three days after its promulgation. "Aaphaile
shapath nalie pradhannyayadishlai", Kantipur, 19 January
2007. According to Interim Constitution Article 162(2) judges
refusing to take new oaths will be dismissed.
181 The interim constitution was promulgated one day after
their decision to recommend changes. They had proposed
changes to articles 103(1), 105(1) and (2), 106 (1) and (2),
107(4), 109(4), 112, 113, 117, 149(2), 155(1) and 162(2).
Madhav Dhungel, "Naitik sankatma nyayadhishharu", Nepal,
21 January 2007.
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Page 22
political persuasions) over the interim constitution's
concentration of executive power may lead to
challenges to government authority. Conservative
judges could be a convenient front for monarchists to
pursue extra-parliamentary openings for preserving
royal powers; they should also check government
excesses.
The bureaucracy. The bureaucracy has been a source
of stability in a turbulent period - especially given its
ability to work according to unwritten conventions
amid legal and constitutional uncertainty. But this
stability could also obstruct constitutional change.
The civil service is highly unrepresentative,182 enjoys
its centralised authority, is conservative in its day-today behaviour and does not stand up to political
leaders (be they the king or party politicians) when
they violate the rules of government.183
The interim period will strain the bureaucracy but also
offer openings for gradual reform. Tasks such as
distributing citizenship papers, re-establishing local
governance and preparing for elections will stretch
ministries and other departments to the limit; political
parties - including, once they join the interim
government, the Maoists - will probably seek to
influence appointments and shape the way civil
servants work within ministries under their control;
external pressure to alter working practices (for
example, from the international financial institutions)
will be maintained. A civil service commission has
already drawn up a ten-year plan.184 Even if this is
implemented, more radical measures to make the
bureaucracy representative and accountable may well
be needed.
Violent opposition. Organised protests and armed
action in the Tarai since late 2006 have indicated the
potential for violent opposition to the peace process.
Two armed factions - Jay Krishna Goit and Jwala
Singh's branches of the Janatantrik Tarai Mukti
Morcha (JTMM)185- have been trying to build a
power base in the eastern Tarai; there are also eastern
On representation in the civil service and elsewhere, see
Fatik Bahadur Thapa, "Report on involvement of indigenous
nationalities in the state mechanism", Nepal Federation of
Indigenous Nationalities, Kathmandu, January 2006.
183 See "Employees intensify stfr", Kathmandu Post, 11 April
2006 and Crisis Group Report, From People Power to
Peace?, op. cit.
184 "Mid-term report on civil service's 10-year vision paper
submitted", nepalnews.com, 3 December 2006.
185 Goit formed the JTMM on 16 January 2005, just after his
dismissal as chairman of the Maoist-affiliated Madheshi
Rastriya Mukti Morcha. Jwala Singh (Nagendra Paswan) led a
split in 2006, forming his own faction.
hill-based groups such as the Kirat Workers' Party
that claim an independent armed capacity. However,
none of these groups is yet significant in a purely
military sense; the leverage they have is a widespread
feeling that the interim constitution does not address
major grievances, and the mainstream parties will not
provide an outlet for demands. Even the Maoist-
affiliated Kirant Rastriya Morcha has expressed
dissatisfaction over its own party's ethnic policy.186
Such discontent, exacerbated by inadequate public
consultation, has allowed more radical fronts such as
the Madhesi People's Rights Forum187 to gain sudden
prominence and has left space for opportunistic
meddling, be it by royalists, religious activists or
cross-border criminals.188
The spike in violence in the Tarai showed how easy it
is to undermine fragile governance and policing.
Repeated curfews and police shootings did little to
restore order; the latter, as during the Maoist conflict,
only added fuel to the fire. Activists' demands are
negotiable and the violence may force the government
and Maoists to engage in substantive talks.189
However, the rapid spread and scale of unrest is a
stark warning that determined opposition and political
intransigence in Kathmandu could cause serious
problems.190
186 Om Aastha Rai, "Sashankif', Samaya, 1 February 2007.
187 Known in Nepali as the Madhesi Janadhikar Forum; the
English-language press has (confusingly) used the acronyms
MPRF and MJF interchangeably but they refer to the same
organisation MPRF Chairman Upendra Yadav is a former
UML parliamentary candidate who joined the Maoists before
leaving the party in 2004.
188 On the accusation that royalists were responsible for
instigating trouble in the Tarai, see "Late-night crackdown on
royalists", Himalayan Times, 30 January 2007 and "Nepalese
former minister arrested", BBC News, 30 January 2007.
189 The primary demands are for a proportional representation
system for the constituent assembly elections, a federal state
structure and citizenship rights for Madhesis.
190 Ian Martin warned that "The role of my Office is to support
a free and fan Constituent Assembly process, and the efforts
we are supporting to make this possible on the agreed
schedule can only be jeopardised if the situation in the Terai
continues or escalates", press statement, OPRSG, 26 January
2007, Kathmandu. Chief Election Commissioner Bhoj Raj
Pokhrel similarly cautioned that such unrest threatens the
election timetable, "Terai unrest may delay CA polls: CEC
Pokhrel", nepalnews.com, 27 January 2007.
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VI.   PUBLIC PARTICIPATION
The constitutional transition requires a consensus
among key political actors but public involvement is
also vital.191 The 1990 Constitution came to be
regarded as illegitimate in part because it was not
seen to derive from a public consultative process.
Legitimacy, and hence stability, typically flow from
the perception of public involvement in a constitution's
preparation.192 A visibly public drafting process
would make the new constitution a more stable
framework for resolving future political disputes.
There is in any case little prospect of suppressing
social fault-lines (for instance, of ethnic and religious
identity) via a top-down process. One consequence of
the Maoist insurgency is that Nepal can no longer
avoid discussing long-standing inequities. Constitution
making cannot be solely an elite affair.193
Discontent about exclusion has procedural as well as
substantive facets. The public scepticism that resulted
from the absence of a visibly participatory drafting
process has been a major factor in the collapse of
Nepal's five past constitutions. Diverse and
overlapping NGO projects to "educate" the public and
gather views have already begun. Public participation
in constitution making, however, needs more than
public input. It also needs an institutional mechanism
to collate, process and inject views into elite decisionmaking processes. There is no such mechanism, and
A study of several constitution-making processes by
UNDP and the U.S. Institute for Peace concluded that "those
cases in which the entire constitution-making process
remained secretive and closed have permitted deal making
among elites but have not typically produced either the most
vibrant of constitutional democracies or the most stable
governments over the long term". Quoted in Jane Stromseth,
David Wippman and Rosa Brooks, Can Might Make Rights:
Building the Rule of Law After Military Interventions (New
York, 2006), p. 95.
192 A comparative study of twelve constitutional-making
processes concluded "Constitutions that were representative or
involved a process of consultation and participation were
perceived as more legitimate and hence received greater
public support". Kirsti Samuels, "Constitutional Drafting
Processes and Democratization: A Discussion of Twelve Case
Studies", International Institute for Democracy and Electoral
Assistance, p. 5; see also Vivien Hart, United States Institute
of Peace (USJT), "Democratic Constitution Making" USIP
Special Report, no. 107, July 2003, pp. 4-7.
193 The alternative would be analogous to 1990: elite
consensus twinned with popular dissatisfaction. In other
contexts, this has proved a volatile mix. Kirsti Samuels, "Post-
Conflict Peace-Building and Constitution-Making", Chicago
Journal of International Law, vol. 6, 2005-2006, p. 670.
neither the CPA nor the interim constitution proposed
one. Without an intermediary institution such as a
constitutional commission, public participation will
likely be token, and public confidence in the resulting
settlement will suffer. This role could be played by
the proposed CA secretariat, if suitably empowered
and staffed, or by an independent body along the lines
of a constitutional commission.
A.      EDUCATION, DISSEMINATION AND
DISCUSSION
Public education has been led by the media and also
backed by NGO efforts. As elections draw closer,
however, party campaigning and government
outreach efforts will be increasingly important. In
addition, other non-governmental entities such as
trade unions, professional associations, religious
organisations and regional, ethnic and other single-
issue pressure groups are mobilising for particular
constitutional changes.
Public debate on the constitution will be decentralised
and uncoordinated - natural in a healthy democracy.
But public education efforts raise two more serious
concerns. First, they are predicated on the assumption
that citizens' participation in constitution making will
go beyond merely voting for CA delegates. As
discussed above, institutional avenues for meaningful
involvement do not yet exist. Secondly, many public
education initiatives are grounded in a
"consciousness-raising" model which assumes that
knowledge flows down from civil society opinion-
formers to the "grassroots".194 This may simply
reinforce elite agendas - especially in the case of
single-issue advocacy groups. Information about the
constitution-making process certainly needs wide
dissemination195 but public involvement should not be
top-down. Nepalis who are not part of political elites
(including civil society leaders) should be able to
articulate interests and goals which are not well
reflected in the political establishment.
Ethnic and linguistic differences in public education
also merit careful attention. While ethnicity may not
be the most significant of Nepal's social fault lines, it
receives disproportionate attention. Ethnic groups are
Crisis Group interview, political scientist, Kathmandu,
October 2006.
195 One poll found that only 35 per cent of Nepalis had heard
only "a little" or "not heard" about the constituent assembly,
with 61 per cent having heard "some" or "a lot" about the
assembly. Only 1 per cent of those polled, however, expressed
any disapproval ofthe idea. Greenberg Quinlan, op. cit, p. 10.
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Page 24
more coordinated than, for example, the decentralised
community of Kathmandu-based dalit advocacy
groups.196 Yet dalits tend to be among the poorest
citizens and face discrimination even from members
of ethnic groups.197 Self-designated ethnic civil
society leaders, moreover, do not necessarily reflect
fully or accurately the views ofthe rural communities
for which they purport to speak;198 in particular,
cultural and linguistic issues raised by civil society
elites may only imperfectly reflect needs of a broader
rural community.
NGOs are potentially important for disseminating
information about the constitution and have been
effective in some areas. However, they are likely to
be overshadowed by political party efforts - despite
their weaknesses, the parties still have nationwide
networks and are not necessarily seen as any more
corrupt and self-serving than many NGOs. The major
vehicle for debate and information dissemination will
be the media. Protecting its freedoms will be
important: threats to journalists could compromise
wide discussion.199 The interim constitution
guarantees press freedom but includes restrictive
provisions which could be very broadly interpreted.200
Federation of Nepalese Journalists President Bishnu
Crisis Group interview, dalit NGO leader, Kathmandu,
October 2006. Ethnic groups' exclusion from political posts
varies widely. See Krishna Hachhethu, "The Question of
Inclusion and Exclusion in Nepal: Interface Between State and
Ethnicity", conference paper presented at "The Agenda of
Transformation: Inclusion in Nepali Democracy", Social
Science Baha, 24-26 April 2003, Kathmandu.
197 Hari Prasad Bhattarai, "Cultural Diversity and Pluralism in
Nepal: Emerging Issues and the Search for a New Paradigm",
Contributions to Nepalese Studies, vol. 21, no. 2, July 2004, p.
309.
198 In particular, the umbrella organisation NEFIN does not
represent every ethnic group (and has made decisions on
defining which populations deserve separate classification -
currently a total of 59 groups) nor does it necessarily reflect
political formations within communities. Crisis group
interviews, Nepali political analysts, Kathmandu, October 2006.
199 On concerns related to Tarai violence see "CPJ calls for
probe into attacks on journalists in Nepalgunj", Committee to
Protect Journalists, New York, 3 January 2007, at
http://www.cpj .org/news/2007/asia/nepal03jan07na.html and
"FNJ concerned over continued attack against media",
nepalnews.com, 30 January 2007.
200 The government can restrict "any act which may
undermine the sovereignty or integrity of Nepal, or which may
jeopardise the harmonious relations subsisting among the
peoples of various castes, tribes or communities; or on any act
of sedition, defamation, contempt of court or incitement to an
offence; or on any act which may be contrary to decent public
behaviour or morality". Art. 15(1). This may contravene
ICCPRArt 19(3).
Nisthuri has warned that the SPA and Maoists have
not created a genuinely free media environment.201
Still, the quantity and quality of debate is
encouraging. Apart from news reporting and detailed
opinion pieces in the established press, a number of
initiatives to make the most of radio networks are
expanding the scope.202
B.      INCLUSIVENESS
Overcentralisation ofthe state and resulting inequities
in resource distribution and political power (often
following caste, ethnic and geographic lines) helped
the Maoists to recruit support, but their mobilisation
around these issues has raised expectations and
radicalised activists. Constitution making must permit
the articulation of identity-based grievances while
preventing ethnic, linguistic or cultural polarisation.
Recognising this, the CPA signatories vowed to end
all forms of discrimination.203 However, constitutional
change alone cannot achieve such a dramatic
transformation. The SPA and the Maoists will have to
manage expectations more realistically while finding
creative, equitable solutions to social and political
conflicts that the party governments ofthe 1990s did
not resolve.
The interim constitution removes the 1990 document's
limitation on ethnically-defined parties, albeit in
vague terms that leave open the possibility of new
restraints.204 Nevertheless, there is little indication that
"FNJ marks 'black day'", nepalnews.com, 2 February
2007.
202 For example, a daily discussion program produced by
Antenna Foundation uses two-way satellite links to enable
nationwide phone-in debates with invited guests. By offering
freephone access in different regions of the country this has
encouraged a broad cross-section of people to participate,
bridging technical and financial constraints.
203 It promised an end to "discriminations based on class,
ethnicity, lingual [sic], gender, cultural, religion and region
and to deconstruct the centralised and unitary structure of the
state and to reconstruct it into an inclusive, democratic and
forward-looking state". CPA, Art. 10.1.
204 The interim constitution prohibits restrictions on political
parties (Art. 141(1)) but bars parties with "objectives contrary
to the spirit and norms of the preamble of this constitution"
(Art. 141(3)). It also bars the registration of "any political
party if any Nepali citizen is discriminated against becoming a
member of the political party on the basis of religion, caste,
tribe, language or sex or if the name, objectives, insignia or
flag of such political parties is of a nature that it would disturb
the religious or communal harmony or of the nature to divide
the country, or such party constitution or rules are for purposes
of protecting and promoting a party-less or single party system
of governance" (142(4)). This echoes Article 112 (2) and (3)
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new parties organised on ethnic lines will be able to
build sufficient presence to translate into meaningful
CA representation.205 Mainstream parties will
therefore remain vehicles for marginalised groups, but
they must overcome histories of discrimination and
neglect if they are to compete effectively with the
Maoists for minority votes. Strengthening internal
democracy would provide greater opportunities for
ethnic minorities, women, and dalits in policymaking. However, few party leaders expressed interest
in such internal reform.
In attempting to deal with long-ignored inequalities,
Nepal risks transforming ethnic divisions into new
causes of conflict. The Maoists, for example, have
raised perhaps unrealistic hopes by promising "self-
determination" for some (but not all) geographically
concentrated ethnic groups.206 The mainstream parties
are unlikely to have the credibility to address these
exclusions if they remain dominated by a limited set
of ethnic groups and castes.
One NC central committee member argued that
inclusiveness could be addressed by altering the
party's constitution to include a specific reference to
the importance of "inclusive democracy".207 Mainstream
of the 1990 Constitution, which prohibited any party with an
ideology that was "inconsistent with [the] Constitution" and
parties formed "on the basis of religion, community, caste,
tribe or region"; these provisions were used to prevent the
registration of ethnic and region-based parties.
205 One leader of an ethnic federation has mooted formation of
a political party but this idea has yet to develop. Crisis Group
interviews, Nepali political analysts, Kathmandu, October
2006. Ethnic and regional parties, including the Nepal
Sadbhavana Party, have fared poorly in past elections, a
pattern that is unlikely to change. However, the Tarai protests
focused renewed attention on regional issues and may well
lead to the creation of new parties. In 1991 the Nepal Rastriya
Janamukti Party campaigned for ethnic quotas within the
political and administrative system: The largest share of the
vote it received in any constituency was 14 per cent. In 1994,
it failed to break the 3 per cent threshold required for
recognition as a national party. John Whelpton, "Political
Identity in Nepal: State, Nation, and Community", in Gellner,
et al., Nationalism and Ethnicity, op. cit, pp. 59-60.
206 Crisis Group interview, Baburam Bhattarai, Bhaktapur,
October 2006, Maoist leaders are now careful to avoid talk of
"seh-determination" that might suggest a right to secede.
Backing off from the Maoists' initial proposal of nine
ethnically defined federal units, Bhattarai suggested that there
should be "roughly" nine to eleven provinces, that self-
determination applies in "principle" but not in "practice", and
that linguistic and territorial divisions also matter. This
suggests the Maoists have realised the risk in their earlier
rhetoric.
207 Crisis Group interview, NC central committee member,
Kathmandu, 18 October 2006.
party failure over a decade of democratic rule to
ameliorate social divisions, however, means that
promises alone are unlikely to be sufficient. Opening
party hierarchies to more ethnic minorities, dalits, and
women would be one way to make a concrete start.208
The interim constitution takes a step in the right
direction by requiring that party executive committees
have "an inclusive system...for the inclusion of
women, [and] Dalits including the members from
neglected and suppressed regions".209 It does not
define what an "inclusive system" would be but one
example is provided by the NC(D), whose January
2006 convention ruled that eight of eighteen central
committee seats must be allocated to women and
previously marginalised minorities.210 Progress is not
guaranteed: other parties have yet to follow, and the
NC(D)'s innovation may be lost if it reunites with
NC. Still, the interim constitution's provision may
stimulate internal debate if parties feel pressured to
live up to it. Cross-party caucuses to push for
inclusion measures may also gain in influence,
building on the precedent ofthe cross-party women's
group that played an important role on the ICDC's
composition.
C.    From Consultation to
PARTICIPATION
Public involvement means more than just
consultation. It entails public spaces and institutions
through which members ofthe public can engage, and
be seen to engage, with political elites. It is not
sufficient to allow a say but then not to reflect views
in the final document. Indeed, allowing the public to
voice opinions and then failing to heed them would
undermine the resulting constitution's legitimacy.
There is a need for mechanisms to incorporate the
public contribution into the constitutional fabric.
The ICDC learned that it is easier to gather views than
to process them. Its experience suggests the need for a
separate, professionally-staffed body to manage the
technical side of the constitution-making process. A
possible candidate for this role has been identified by
the interim constitution, which calls for a "Secretariat
of the Constituent Assembly", tasked with managing
Dalit activists, for example, stress the difficulty that dalit
candidates have in winning national elections and also
obtaining positions within political parties - including the
CPN(M). Crisis Group interviews, Kathmandu October 2006.
209 Interim constitution, Art. 142(3)(c).
210 Crisis Group interview, NC(D) central committee member,
Kathmandu, October 2006.
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Page 26
"the work" of the assembly (responsibilities to be
determined by a subsequent law).211 Another option
would be to have a more aggressively conceived
"constitutional commission".212
Whether a secretariat or a commission, the body's
tasks would likely include drafting options for
constitutional provisions (and explaining the implications
of each); encouraging public submissions (by
facilitating public education and outreach); processing
public submissions and ensuring they are considered;
and handling public communications about the
process (to keep expectations realistic). To complete
these tasks successfully means starting before the CA
is formed: apart from technical drafting, most are
important for the pre-election period.
D.       INTERNATIONAL EXPERIENCE
Bureaucratic lethargy is a danger with any
government body, and a new institution risks
emasculation by patronage appointments - the fate,
for example, ofthe Peace Secretariat.213 Nevertheless
there are models of constitutional commissions that
the interim government might study. Experience from
other nations suggests that planning and budgeting for
effective public participation should begin as early as
possible. The Kenyan constitutional commission,
established in 2000, prepared and held educational
meetings in every district in the country, collected
36,000 submissions and processed them into a
manageable form for the constitutional convention
held in 2003-2004.214
Other relatively impoverished nations have also
concluded that extensive public participation in
constitution making is worth the financial cost. In
April 1994, Eritrea initiated a two-year constitution-
Interim constitution, Art. 80.
212 This recommendation has already been made to the SPA
and the Maoists in strong terms by a UNDP-sponsored
constitutional adviser. Crisis Group interview, Professor Yash
Ghai, Lalitpur, October 2006.
213 Crisis Group interview, Western diplomat, Kathmandu,
October 2006. The Peace Secretariat was established in 2004
to support the government's efforts to seek a peaceful
resolution of the conflict. It was only minimally effective and
was sidelined under the post-February 2005 royal
administration
214 Crisis Group interview, Yash Ghai, Kathmandu, October
2006; Yash Ghai and Jill Cottrell, "Constitutional Ability,
Inclusion, Participation, Discipline", Nepali Times, 27 October
2006. See also Jill Cottrell and Yash Ghai, "Constitution
Making and Democratisation in Kenya (2000-2005)",
Democratisation 14:1 (2007) pp. 1-25.
making process that involved "literally thousands of
meetings and seminars" and a broad variety of
educational tools "from comic books to musical
plays, radio broadcasts to secondary school essay
contests". At one stage, 147,000 citizens debated
constitutional proposals in 157 locations in the
country, while another 11,000 participated in debates
in sixteen overseas sites. The process was budgeted at
$4.3 million;215 the resulting constitution, adopted in
1997, was considered to have "a large measure of
legitimacy".216 Writing in 1998, the chair of the
constitutional commission argued that broad public
consultation had not only entrenched the constitution
as a legitimate political institution, but had also
deepened popular involvement in democratic processes,
as the public's "initial diffidence... gradually gave
way to more vigorous and candid involvement" in
constitution making.217
Benefits from public education processes are
uncertain and rarely take immediate, tangible form.
Public consultation, however thorough, will not
necessarily overcome elite political resistance. The
Constitution of Kenya Review Commission, for
example, identified popular concerns (such as housing)
that nevertheless did not make it into the final
document because politicians stymied their adoption.218
And misconceived initiatives can be counterproductive.
During Rwanda's 2002 constitution-making exercise,
educational efforts were generally construed as
"instructions from the state" and did not add to the
legitimacy of the process.219 In Afghanistan, a
national consultation process in June and July 2003
produced no perceptible changes in the draft
constitution - indeed, it transparently prioritised the
Richard A. Rosen, "Constitutional Process,
Constitutionalism, and the Eritrean Experience", North
Carolina Journal of International Law and Commercial
Regulation, Winter 1999, pp. 285-99. Eritrea in 1994 did not
have political competition like Nepal's today, but did contain
dangerous ethnic and religious divisions.
216 Gote Hanssen, "Building New States: Lessons From
Eritrea" United Nations University Discussion Paper 2001/66,
available at http://www.wider.unu.edu/publications/dps/
dp2001-66.pdf.
217 Bereket Habte Selassie, "Building a New Constitution for
Eritrea", Journal of Democracy, vol. 9, 1998, p. 173. Selassie
is a highly respected professor of African studies at the
University of North Carolina, Chapel Hill, not a political
figure.
218 Crisis Group interview ,Yash Ghai, Kathmandu, October
2006; Yash Ghai, Reviewing the Constitution: A Guide to the
Kenyan Constitution (Nairobi, 2002), pp. 12, 16-17, 24.
219 Crisis Group Africa Report N°. 53, Rwanda At The End Of
The Transition: A Necessary Political Liberalization 13
November 2002, pp. 6-7.
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Page 27
input and interests of the incumbent government,220
resulting in a constitution that centralised power in the
hands ofthe president and his allies.221
International practices thus do not offer Nepal an
infallible model. But the precedents are worth
studying, especially when they appear to fit with the
country's own experiences.
VII. INTERNATIONAL ASSISTANCE
Constitution making is, and must remain, nationally
owned. Nevertheless, internationals can further the
goal of an inclusive process in several ways. Beyond
diplomatic pressure on the pivotal political actors,
they can provide important assistance not only for
education and dialogue on issues, but also for the
electoral commission and election monitoring, human
rights and ceasefire monitoring, and the as yet
undefined "civil affairs" component of the UN
mission.
A.      PRINCIPLES AND PRACTICALITIES
Nepal's rich history of debate on constitutional and
political issues means that it does not require foreign
hand-holders. Technical assistance that assumes the
portability of constitutional models from one context
to another is inherently suspect, however easy it
might be to assume that the country's size and
geography suggest parallels. Any efforts by donors to
promote parochial models would in any case likely
receive a cool welcome.222
Nepalis have formulated and driven forward their
roadmap for constitutional change. This national
ownership enhances the prospects for success but
does not exclude an international role. External
players can pressure all sides to follow clearly
recognised democratic rules and can support
monitoring to ensure that the elections are free and
fair. Technical assistance should help cultivate Nepali
intermediaries - part of "civil society"223 - who can
develop and disseminate ideas about both
constitutional process and substance.
Numerous Nepali academics associated with
Tribhuvan University and private foundations have
studied and commented on electoral and structural
options in constitution making.224 The forthcoming
See Crisis Group Asia Briefing N°29, Afghanistan:
Constitutional Loya Jirga, 12 December 2003.
221 Stromseth et al, op. cit, p. 97.
The
In fact, detennining when an institutional design feature
from one context will be successful in another context is
extremely difficult. See Mark Tushnet, "Returning with
Interest: Observations on the Putative Benefit of Studying
Comparative Constitutional Law", University of Pennsylvania
Journal of Constitutional Law, vol. 1, Fall 1998, p. 325.
223 "Civil society", a problematic term with many possible
significations, is loosely used here in the basic sense of nongovernmental and non-political structures and networks such
as academia, the press, non-governmental organisations,
community associations and the like.
224 Recent books on the constitutional process by Nepali
experts include Bhimarjun Acharya Making Constitution
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International IDEA compilation of Nepali
perspectives on constitutional options illustrates the
breadth and richness of national debate and should
help develop it further. Kathmandu-based institutions
such as the Social Science Baha and the Martin
Chautari provide forums for public discussion and
publish useful resources.225 Nepal also has a wide
range of both Nepali- and English-language periodicals.
Its relatively vibrant media provides vehicles for
disseminating Kathmandu debates to the broader
country. In particular, radio and weeklies such as
Himal Khabarpatrik, Nepal, and Samay reach a broad
national audience.
B.       POLITICAL CONTEXT
Progress in the peace process has improved
international unity. While some powerful players
retain differing perspectives in private, all were quick
to welcome the promulgation of the interim
constitution and congratulate political leaders on the
formation of the interim legislature. India is, as
always, the dominant outside force. It was
instrumental in shaping the framework for the peace
process and is engaged in almost every aspect of
Nepal's politics. It is comfortable with a CA - the
same mechanism it used to draft its own constitution
between 1947 and 1950.226 Beyond the purely
political, its major long-term concern is to build
closer economic links that tie Nepal into its own
economic progress. This will raise nationalist hackles
if it means more Indian capital holding sway but
offers one of the best means of reducing the
likelihood of future conflict - provided the fruits of
economic development are fairly shared, something
that India has yet to achieve domestically.
The U.S. is still in the painful process of readjusting
its analysis and policy following the success of the
April movement and Nepal's resounding rejection of
Washington's  long-standing  contention that party-
Through Constituent Assembly (Kathmandu, 2006); Birendra
Prasad Mishra, Taranath Dahal, Bholanath Dhungana, Sanjiv
Ghimire, Samvidhansabhako samrachana ra nirvachan
paddhati (Kathmandu, 2006); and Taranath Dahal (ed.),
Samaveshi loktantra (Kathmandu, 2006).
225 For example, the Social Science Baha is publishing
"concept briefs" in Nepali on about 30 key concepts and
terms. Each between two and four pages, 100,000 copies will
be printed and distributed to all village development
committees, as well as being disseminated in the media and
being the subject of discussion groups.
226 The 1990 Constitution was influenced by both its Indian
and British counterparts; Indian precedents are frequently
cited in supreme court arguments and judgements.
palace unity against the Maoists was the only way
forward. The U.S. still formally lists the CPN(M) as a
terrorist organisation and had warned that it will
freeze aid to any ministries controlled by Maoists
after the formation of the interim government. Even
the establishment of the interim legislature prompted
the suspension of a significant project on rule of law
and respect for human rights.227 However, the U.S.
Department of Treasury's Office of Foreign Assets
Control subsequently granted a license allowing the
State Department and the U.S. Agency for International
Development (USAID) to continue providing assistance
even if Maoists join the government.228 Other
international players, most notably China,229 are less
constrained by rigid positions. Most donors have
publicly supported the peace process, but have done
little to ensure coordination of assistance.
C.     THE UN MISSION
On 23 January 2007 the Security Council
unanimously adopted Resolution 1740, establishing a
UN political mission in Nepal (UNMIN) led by a
Special Representative ofthe Secretary-General. The
mission's twelve-month mandate reflects the original
request of the SPA and Maoists230 and the
recommendations of the UN's December 2006
Technical Assessment Mission.231 Its five specific
tasks cover three areas: monitoring the management
of arms and armed personnel and assisting the parties
to implement their agreement; assisting in monitoring
ceasefire arrangements; and providing technical
support for the planning, preparation and conduct of
CA elections, reviewing all technical aspects of the
"No trust', Newsfront, 29 January 2007. In fact, the rules
on dealing with tenorist organisations can be worked around.
This has happened, for example, to a limited degree in
Lebanon, where Hizbollah, also listed by the U.S. as a tenorist
organisation, is part (albeit an uneasy one) of a government
with which Washington maintains close relations. Crisis
Group interview, retired U.S. diplomat, January 2007.
228 "opac license ensures continued U.S. aid to Government
of Nepal", U.S. embassy press release, Kathmandu, 7
February 2007.
229 See Crisis Group Report, Nepal's Peace Agreement, op. cit on
China's willingness to deal with the Maoists after April 2006.
230 See Crisis Group Report, Nepal's Peace Agreement, op. cit.
231 The UN's Technical Assessment Mission, led by Personal
Representative of the Secretary-General Ian Martin, visited
Nepal in December 2006. See Crisis Group Report, Nepal's
Peace Agreement, op. cit. The Secretary-General submitted
his report to the Security Council on 9 January 2007. "Report
of the Secretary-General on the request of Nepal for United
Nations assistance in support of its peace process", UN
Security Council, S/2007/7.
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Page 29
electoral process and reporting on the conduct of the
election.232
The UN has already played a crucial role in
overseeing the initial registration of Maoist weapons
and fighters, as well as chairing the Joint Monitoring
Coordination Committee, which brings together
Maoist and state military representatives to manage
the process. The establishment of a full, Security
Council-mandated mission confirms the UN's
engagement, gives it the capacity to fulfil the tasks
requested of it and places it firmly at the centre of
international assistance in specific areas. This makes
coordination more feasible and should encourage
political consensus on the overall direction of the
process. The Secretary-General's report to the Security
Council also placed great stress on the need for an
inclusive process, concluding with foresight that:
The significant political process that Nepal has
set in motion represents a crucial opportunity
for the country to reshape its structures and
institutions to reflect the capacities and meet
the aspirations of all its peoples. The greatest
challenge in the months ahead may be to ensure
that Nepal's remarkable diversity becomes an
abiding strength rather than a source of
division.233
UNMIN does not have any specific mandate to assist
the constitution-making process and the UN more
generally has no formal role in this area. However,
the UNDP has set up a constitution advisory support
unit (CASU), in part at the request of the diplomatic
community, to provide input. CASU and UNMIN
work closely where possible and brief each other on
relevant developments. CASU has established working
relations with political parties, public and parliamentary
officers, and civil society and professional
organisations.234
D.    Areas of Engagement
Areas where international aid to the constitutional
process is already deployed, or could usefully be
developed, include:
Election assistance. UNMIN's mandate gives the UN
a central role in technical assistance and electoral
monitoring, but other donors have also pledged help.
India has offered advice and practical aid; its deputy
chief election commissioner and other senior officials
have visited to advise counterparts, and it is planning
further training and material support.235 The Japanese
government has donated computer equipment, ballot
boxes and training;236 the European Commission is
keen to help and sent an election observation
exploratory mission to discuss how.237 Independent
organisations, most notably the U.S.-based Carter
Center (which has already established a country
office), will boost the international monitoring
capacity.238 India, while wary of external political
intervention, enthusiastically backs a large monitoring
presence. "We'd like to see the country crawling with
observers", said a senior diplomat. "There has to be
national monitoring too but an international presence
will do much more to reassure voters".239
Rule of law and human rights. Functioning law and
order and institutionalised protection of human rights
are essential components of a secure electoral
environment. Some states were quick to develop
military aid strategies for counter-insurgency but all
have struggled to find the right way to assist civilian
policing in the transitional period. "The Nepal Police
and Armed Police Force have long wish-lists for
equipment", an ambassador said, "but even if we
supply everything they want, that won't necessarily
boost their low morale or translate their nationwide
presence into a feeling of public security".240
The interim constitution suggests that citizens' rights
are  not  in  the  forefront  of politicians'   thinking:
232 The full text of UN Security Council Resolution 1740 is in
Appendix B.
233 "Report ofthe Secretary-General", op. cit, p. 16. PRSG Ian
Martin underlined this stress on inclusiveness in a press
statement warning that the Tarai unrest could threaten the
peace process. Press Statement, 26 January 2007, UNMLN.
234 CASU's activities have included consultations with
political parties and the Peace Secretariat on the peace
settlement and the interim constitution; commentaries on the
draft peace accord and the draft interim constitution;
preparation of materials for use in civic education; and
establishment of translation services and facilitation of
workshops and conferences. Projected activities include
training workshops on constitution making for parties and
induction courses for CA members.
Crisis    Group   interview,    senior   Indian   diplomat,
Kathmandu, January 2007.
236 "Japan to assist in CA elections, arms monitoring",
ekantipur.com, 24 January 2007.
237 The 7-15 February mission was to assess the advisability,
usefulness and feasibility of deploying a long term EU
Election Observation Mission for the constituent assembly
elections. European Commission email communication with
Crisis Group, January 2007.
238 Crisis Group interviews, Carter Center officials,
Kathmandu, January 2007.
239 Crisis Group interview, senior Indian diplomat,
Kathmandu, January 2007.
240 Crisis Group interview, Kathmandu, January 2007.
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Page 30
empowering the interim cabinet with an unrestricted
right to grant pardons seems to pre-empt public
debate on transitional justice, for example.241 The
balancing of peace and justice priorities, for example
with respect to the treatment of human rights abuses
committed by both sides during the civil conflict, is
inherently sensitive and should be left to a national
decision-making process. But the international
community can justifiably press all parties to abide by
international standards (for example, by ensuring that
the National Human Rights Commission appointment
procedure meets the Paris Principles standard)242 and
live up to the CPA commitments, as well as insist, as
the UN High Commissioner for Human Rights
(OHCHR) did forcefully during a January 2007 visit,
that rights issues not be swept aside by political elites
for their own convenience.243 UNMIN has
responsibilities in this area (as well as providing
police advisers);244 OHCHR will continue to play a
parallel role but also has to renegotiate its mandate
with the government.
Voter education. Donors have already committed
significant sums to aid public outreach. UK, Swiss,
and Australian aid agencies, for example, are using a
multi-year multi-million dollar Rights, Democracy
and Inclusion Fund to support public education; the
Canadian Cooperation Office has allocated $1.2
million for the same purpose.245 These funds are
focused on "grassroots" education. As some donor
agencies acknowledge, gauging the success of such
efforts is difficult.246 Maoist concerns that they risk
It may be that the pardon provision, like many other
articles, was an unthinking replication of the 1990
Constitution rather than a deliberate initiative.
242 See "Nepal - ICJ welcomes NHRC as constitutional body:
Raises concerns regarding independence of appointments
process", International Commission of Jurists press release,
Geneva, 24 January 2007.
243 On a visit to Nepal, United Nations High Commissioner
for Human Rights Louise Arbour emphasised that ending
impunity and resolving cases of forced disappearance would
not jeopardise the peace process and should not be sidelined,
statement to the press, 24 January 2007, Kathmandu. Her
strong statement was partly in response to criticism that
OHCHR should not pressure the government on internal
matters. See "HR bodies should be careful not to disturb
communal harmony, PM tells Arbour", Kathmandu Post, 21
January 2007.
244 For JJNMIN responsibilities, see Appendix B below.
245 Crisis Group interviews, donors, Kathmandu, October
2006.
246 Crisis Group interview, Kathmandu, October 2006.
simply enriching NGOs may be tinged with political
partisanship but cannot be dismissed out of hand.247
Donors should also consider ways of "bringing more
ideas into the slipstream" while building up Nepali
civil society.248 An example of how indigenous
thinking can be supported while enhancing the
general quality of debate is the already mentioned
UNDP/International IDEA-funded volume of essays
on constitutional topics by Nepali scholars.249 Such a
book can feed into press and radio discussion of
issues250 and inform intra-party debates. Some overlap
in efforts is inevitable but UNDP has established a
centralised database of projects related to constitutional
education;251 UNMIN's responsibility for electoral
assistance, coupled with its civil affairs capacity, may
provide additional coordination capacity.
Ongoing development assistance. The bulk of
foreign help still comes as development aid. Major
bilateral and multilateral donors adapted to the
changed circumstances of the conflict but have been
quick to revert to more traditional practices as the
peace process has taken hold. However, development
engagement does not take place in a vacuum; it can
affect the constitutional and political process. Some
institutions may not appreciate the delicacy of the
interim environment; for example, the World Bank's
strong pressure on the government to liberalise labour
laws does not take into account problems ofthe SPA
administration's legitimacy and the potential
unpopularity of such measures.252
More broadly, increased attention to the need for
inclusive development will be hard to translate into
action without determined leadership. Aid institutions
largely reflect the established social hierarchy, are
often professionally and politically conservative and
may resist social change. Still, the donor community
Crisis Group interview, Baburam Bhattarai, Bhaktapur, 16
October 2006.
248 Crisis Group interview, senior journalist, Kathmandu,
October 2006.
249 Crisis Group interview, Yash Ghai, Lalitpur, October 2006.
250 FM radio, which includes national and local commercial
stations as well as a successful non-profit community sector, is
probably the most effective vehicle for disseminating
information outside the Kathmandu valley. Print has an
increasing reach with news weeklies such as Himal
Khabarpatrika, Nepal and Samay distributed nationwide and a
profusion of local papers, but print media are still constrained
by poor rural distribution networks and low literacy rates.
251 Crisis Group interview, UNDP staff members, Kathmandu,
October 2006.
252 Crisis Group interview, senior Western donor, Kathmandu,
January 2007.
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 31
has tools and mechanisms that can help it chart a
constructive course. The Basic Operating Guidelines
that were developed in a conflict context may remain
relevant as a means for pressuring all sides to behave
responsibly.253 The postponed Nepal Development
Forum,254 which brings together donors and the
government, may go ahead as a Peace and
Development Forum which could consider the links
between development and the political process and
build a more solid base for a coordinated approach.
VIII. CONCLUSION
The Basic Operating Guidelines were developed by a
consortium of major European donors in collaboration with
the UN.
254 This biannual forum should have convened in 2006 but
was postponed because ofthe unfavourable political situation.
Nepal's constitution-making process has tough targets
to meet: it must conclusively settle the decade-long
civil war and build a solid foundation to address deep-
rooted ethnic, caste and social divisions. It has to
achieve this while consolidating a weakened democracy
and building public participation. Balancing elite and
mass concerns and paying appropriate attention to
both substantive and procedural issues is far from
straightforward.
Mainstream political parties will remain key actors,
especially if they seize this opportunity to increase
their inclusiveness, promote internal democracy and
tackle the worst excesses of patronage. The Maoists
were a driving force for a CA. They now have to
translate the achievement of this goal into votes - and
work hard to prove that their movement can adapt
itself to democratic rules. Other political parties, civil
society and the international community should
maintain pressure on them to keep their promise to
abandon violence. The SPA in particular can also
promote Maoist engagement by committing to clear
processes, meeting agreed deadlines and doing more
to lead by example when demonstrating democratic
values.
Both mainstream parties and Maoists would benefit
from richer internal debates on constitutional issues. It
may be that many options are quietly being
considered by party leaders, and certainly the media
and special interest groups are not short of proposals.
But there is no substitute for a wider debate which
links parties' internal discussions to broader popular
concerns. Similarly, transparency of policy discussion
and the decision-making process should extend from
the interim period into the CA itself. If that body is
seen to proceed in a legitimate and relatively
democratic manner, it will be more difficult for any
political actor to repudiate its product or for the public
to wish to do so.
Even a successful CA cannot in itself resolve the
social and political conflicts that fuelled the Maoist
insurgency. As the recent flare-up of tension in the
Tarai has shown, these can take on new, more virulent
forms until they are more fully addressed.
Nevertheless, the constitution-making process is the
best opportunity to reshape state structures and reform
the political parties that will have to consolidate
democracy and prevent a return to violent conflict.
Kathmandu/Brussels, 26 February 2007
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 32
APPENDIX A
MAP OF NEPAL
The boundaries and names shown and the designations
used on this map do not imply official endorsement or
acceptance by the United Nations.
\
+
+
+
+
f Baitadi.. (
mahakalIf^sett^ l\
j Dadeldhura  jr y
Dipa'yal<S£Si|ghad'
;far,west^
'Mah'ehdranagan
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+
CHINA
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MID
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—    International boundary
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20     40      60      80     100 km
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degrees and 32 degrees north latitude using the WGS84
d-iC    &Bisisahar/ _f '-T*_1y ■
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^, ^Sindjulimadi^ni8;P^\'_ „)OflfO      {
■JANAKPUR.   f"      X^EASTjTerhaftJJ
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Map No. 4304    UNITED NATIONS
Januaty2007 (Colout)
Department of Peacekeeping Operations
Cartographic Section
 Nepal's Constitutional Process
Crisis Group Asia Report N°128, 26 February 2007 Page 33
APPENDIX B
UNITED NATIONS SECURITY COUNCIL RESOLUTION 1740 (2007)
The Security Council,
Welcoming the signing on 21 November by the Government of Nepal and the Communist Party of Nepal (Maoist) of
a Comprehensive Peace Agreement, and the stated commitment of both parties to transforming the existing ceasefire
into a permanent and sustainable peace and commending the steps taken to date to implement the Agreement,
Taking note of the request of the parties for United Nations assistance in implementing key aspects of the
Agreement, in particular monitoring of arrangements relating to the management of arms and armed personnel of
both sides and election monitoring,
Recalling the letter ofthe Secretary-General of 22 November 2006 (S/2006/920) and the statement of its President of
1 December (S/PRST/2006/49), and welcoming progress made in dispatching an advance deployment of monitors
and electoral personnel to Nepal,
Recognizing the strong desire of the Nepalese people for peace and the restoration of democracy and the importance
in this respect ofthe implementation ofthe Comprehensive Peace Agreement, and encouraging the parties to maintain
that momentum,
Recognizing the need to pay special attention to the needs of women, children and traditionally marginalized groups in
the peace process, as mentioned in the Comprehensive Peace Agreement,
Welcoming the Secretary-General's report of 9 January 2007 (S/2007/7) and having considered its recommendations,
which are based on the request of the signatories of the Comprehensive Peace Agreement and the findings of the
technical assessment mission,
Expressing its readiness to support the peace process in Nepal in the timely and effective implementation of the
Comprehensive Peace Agreement,
Reaffirming the sovereignty, territorial integrity and political independence of Nepal and its ownership ofthe implementation
ofthe Comprehensive Peace Agreement,
Expressing appreciation for the efforts of the Secretary-General and his Personal Representative, the United
Nations Country Team including the Office ofthe High Commissioner for Human Rights and other United Nations
representatives in Nepal,
1. Decides to establish a United Nations political mission in Nepal (UNMIN) under the leadership of a Special
Representative ofthe Secretary-General and with the following mandate based on the recommendations ofthe
Secretary-General in his report:
(a) To monitor the management of arms and armed personnel of both sides, in line with the provisions of
the Comprehensive Peace Agreement;
(b) To assist the parties through a Joint Monitoring Coordinating Committee in implementing their agreement
on the management of arms and armed personnel of both sides, as provided for in that agreement;
(c) To assist in the monitoring ofthe ceasefire arrangements;
(d) To provide technical support for the planning, preparation and conduct ofthe election of a Constituent
Assembly in a free and fair atmosphere, in consultation with the parties;
(e) To provide a small team of electoral monitors to review all technical aspects of the electoral process,
and report on the conduct ofthe election;
2. Decides that the mandate of UNMIN, in view of the particular circumstances, will be for a period of 12
months from the date of this resolution, and expresses its intention to terminate or further extend that mandate
 Nepal's Constitutional Process
Crisis Group Asia Report N°128, 26 February 2007 Page 34
upon request ofthe Government of Nepal, taking into consideration the Secretary-General's expectation that
UNMIN will be a focussed mission of limited duration;
3. Welcomes the Secretary-General's proposal that his Special Representative will coordinate the United Nations
effort in Nepal in support ofthe peace process, in close consultation with the relevant parties in Nepal and in
close cooperation with other international actors;
4. Requests the Secretary-General to keep the Council regularly informed of progress in implementing this resolution;
5. Requests the parties in Nepal to take the necessary steps to promote the safety, security and freedom of
movement of UNMIN and associated personnel in executing the tasks defined in the mandate;
6. Decides to remain seized ofthe matter.
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 35
APPENDIX C
ABOUT THE INTERNATIONAL CRISIS GROUP
The International Crisis Group (Crisis Group) is an
independent, non-profit, non-governmental organisation,
with nearly 120 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 printed copy to officials in
foreign ministries and international organisations and
made available simultaneously on the website,
www.crisisgroup.org. 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 co-chaired
by the former European Commissioner for External
Relations Christopher Patten and former U.S. Ambassador
Thomas Pickering. Its President and Chief Executive
since January 2000 has been former Australian Foreign
Minister Gareth Evans.
Crisis Group's international headquarters are in Brussels,
with advocacy offices in Washington DC (where it is
based as a legal entity), New York, London and Moscow.
The organisation currently operates thirteen field offices
(in Amman, Bishkek, Bogota, Cairo, Dakar, Dushanbe,
Islamabad, Jakarta, Kabul, Nairobi, Pristina, Seoul and
Tbilisi), with analysts working in over 50 crisis-affected
countries and territories across four continents. In
Africa, this includes Angola, Burundi, Cote d'lvoire,
Democratic Republic ofthe Congo, Eritrea, Ethiopia,
Guinea, Liberia, Rwanda, the Sahel region, Sierra Leone,
Somalia, Sudan, Uganda and Zimbabwe; in Asia,
Afghanistan, Indonesia, Kashmir, Kazakhstan, Kyrgyzstan,
Myanmar/Burma, Nepal, North Korea, Pakistan, Sri
Lanka, Tajikistan, Turkmenistan and Uzbekistan; in
Europe, Albania, Armenia, Azerbaijan, Bosnia and
Herzegovina, Georgia, Kosovo, Macedonia, Moldova,
Montenegro and Serbia; in the Middle East, the whole
region from North Africa to Iran; and in Latin
America, Colombia, the Andean region and Haiti.
Crisis Group raises funds from governments, charitable
foundations, companies and individual donors. The
following governmental departments and agencies
currently provide funding: Australian Agency for
Intemational Development, Austrian Federal Mnistry of
Foreign Affairs, Belgian Ministry of Foreign Affairs,
Canadian Department of Foreign Affairs and International
Trade, Canadian International Development Agency,
Canadian International Development Research Centre,
Czech Ministry of Foreign Affairs, Dutch Ministry of
Foreign Affairs, Finnish Ministry of Foreign Affairs,
French Ministry of Foreign Affairs, German Foreign
Office, Irish Department of Foreign Affairs, Japanese
International Cooperation Agency, Principality of
Liechtenstein Ministry of Foreign Affairs, Luxembourg
Ministry of Foreign Affairs, New Zealand Agency for
Intemational Development, Royal Danish Ministry of
Foreign Affairs, Royal Norwegian Mnistry of Foreign
Affairs, Swedish Mnistry for Foreign Affairs, Swiss
Federal Department of Foreign Affairs, Turkish
Ministry of Foreign affairs, United Kingdom Foreign
and Commonwealth Office, United Kingdom Department
for International Development, U.S. Agency for
Intemational Development.
Foundation and private sector donors include Carnegie
Corporation of New York, Carso Foundation, Compton
Foundation, Ford Foundation, Fundacion DARA
International, Iara Lee and George Gund III Foundation,
William & Flora Hewlett Foundation, Hunt Alternatives
Fund, Kimsey Foundation, Korea Foundation, John D.
& Catherine T. MacArthur Foundation, Charles
Stewart Mott Foundation, Open Society Institute, Pierre
and Pamela Omidyar Fund, Victor Pinchuk Foundation,
Ploughshares Fund, Provictimis Foundation, Radcliffe
Foundation, Sigrid Rausing Trust, Rockefeller
Philanthropy Advisors and Viva Trust.
February 2007
Further information about Crisis Group can be obtained from our website: www.crisisgroup.org
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 36
APPENDIX D
CRISIS GROUP REPORTS AND BRIEFINGS ON ASIA SINCE 2004
CENTRAL ASIA
The Failure of Reform in Uzbekistan: Ways Forward for the
International Community, Asia Report N°76, 11 March 2004
(also available in Russian)
Tajikistan's Politics: Confrontation or Consolidation?, Asia
Briefing N°33, 19 May 2004
Political Transition in Kyrgyzstan: Problems and Prospects,
Asia Report N°81, 11 August 2004
Repression and Regression in Turkmenistan: A New
International Strategy, Asia Report N°85, 4 November 2004
(also available in Russian)
The Curse of Cotton: Central Asia's Destructive Monoculture,
Asia Report N°93, 28 February 2005 (also available in Russian)
Kyrgyzstan: After the Revolution, Asia Report N°97, 4 May
2005 (also available in Russian)
Uzbekistan: The Andijon Uprising, Asia Briefing N°38, 25
May 2005 (also available in Russian)
Kyrgyzstan: A Faltering State, Asia Report N°109, 16 December
2005 (also available in Russian)
Uzbekistan: In for the Long Haul, Asia Briefing N°45, 16
February 2006
Central Asia: What Role for the European Union?, Asia
Report N° 113, 10 April 2006
Kyrgyzstan's Prison System Nightmare, Asia Report
N° 118,16 August 2006 (also available in Russian)
Uzbekistan: Europe's Sanctions Matter, Asia Briefing N°54,
6 November 2006
Kyrgyzstan on the Edge, Asia Briefing N°55, 9 November 2006
Turkmenistan after Niyazov, Asia Briefing N°60, 12 February
2007
NORTH EAST ASIA
Taiwan Strait IV: How an Ultimate Political Settlement Might
Look, Asia Report N°75, 26 February 2004
North Korea: Where Next for the Nuclear Talks?, Asia Report
N°87, 15 November 2004 (also available in Korean and in
Russian)
Korea Backgrounder: How the South Views its Brother from
Another Planet, Asia Report N°89, 14 December 2004 (also
available in Korean and in Russian)
North Korea: Can the Iron Fist Accept the Invisible Hand?,
Asia Report N°96, 25 April 2005 (also available in Korean and
in Russian)
Japan and North Korea: Bones of Contention, Asia Report
N°100, 27 June 2005 (also available in Korean)
China and Taiwan: Uneasy Detente, Asia Briefing N°42, 21
September 2005
North East Asia's Undercurrents of Conflict, Asia Report
N°108, 15 December 2005 (also available in Korean)
China and North Korea: Comrades Forever?, Asia Report
N°112, 1 February 2006 (also available in Korean)
After North Korea's Missile Launch: Are the Nuclear Talks
Dead?, Asia Briefing N°52, 9 August 2006 (also available in
Korean and in Russian)
Perilous Journeys: The Plight of North Koreans in China and
Beyond, Asia Report N° 122, 26 October 2006 (also available in
Russian)
North Korea's Nuclear Test: The Fallout, Crisis Group Asia
Briefing N°56, 13 November 2006
SOUTH ASIA
Unfulfilled Promises: Pakistan's Failure to Tackle Extremism,
Asia Report N°73, 16 January 2004
Nepal: Dangerous Plans for Village Militias, Asia Briefing
N°30, 17 February 2004 (also available in Nepali)
Devolution in Pakistan: Reform or Regression?, Asia Report
N°77, 22 March 2004
Elections and Security in Afghanistan, Asia Briefing N°31, 30
March 2004
India/Pakistan Relations and Kashmir: Steps toward Peace,
Asia Report N°79, 24 June 2004
Pakistan: Reforming the Education Sector, Asia Report N°84,
7 October 2004
Building Judicial Independence in Pakistan, Asia Report
N°86, 10 November 2004
Afghanistan: From Presidential to Parliamentary Elections,
Asia Report N°88, 23 November 2004
Nepal's Royal Coup: Making a Bad Situation Worse, Asia
Report N°91, 9 February 2005
Afghanistan: Getting Disarmament Back on Track, Asia
Briefing N°35, 23 February 2005
Nepal: Responding to the Royal Coup, Asia Briefing N°35,
24 February 2005
Nepal: Dealing with a Human Rights Crisis, Asia Report N°94,
24 March 2005
The State of Sectarianism in Pakistan, Asia Report N°95, 18
April 2005
Political Parties in Afghanistan, Asia Briefing N°39,2 June 2005
Towards a Lasting Peace in Nepal: The Constitutional Issues,
Asia Report N°99, 15 June 2005
Afghanistan Elections: Endgame or New Beginning?, Asia
Report N° 101, 21 July 2005
Nepal Beyond Royal Rule, Asia Briefing N°41,15 September 2005
Authoritarianism and Political Party Reform in Pakistan,
Asia Report N°102, 28 September 2005
Nepal's Maoists: Their Aims, Structure and Strategy, Asia
Report N°104, 27 October 2005
Pakistan's Local Polls: Shoring Up Military Rule, Asia Briefing
N°43, 22 November 2005
Nepal's New Alliance: The Mainstream Parties and the Maoists,
Asia Report 106, 28 November 2005
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 3 7
Rebuilding the Afghan State: The European Union's Role,
Asia Report N°107, 30 November 2005
Nepal: Electing Chaos, Asia Report N° 111, 31 January 2006
Pakistan: Political Impact of the Earthquake, Asia Briefing
N°46, 15 March 2006
Nepal's Crisis: Mobilising Intemational Influence, Asia Briefing
N°49,19 April 2006
Nepal: From People Power to Peace?, Asia Report N° 115, 10
May 2006
Afghanistan's New Legislature: Making Democracy Work, Asia
ReportN°l 16, 15 May 2006
India, Pakistan and Kashmir: Stabilising a Cold Peace, Asia
Briefing N°51, 15 June 2006
Pakistan: the Worsening Conflict in Balochistan, Asia Report
N°119, 14 September 2006
Bangladesh Today, Asia Report N° 121, 23 October 2006
Countering Afghanistan's Insurgency: No Quick Fixes, Asia
Report N° 123, 2 November 2006
Sri Lanka: The Failure of the Peace Process, Asia Report
N°124, 28 November 2006
Pakistan's Tribal Areas: Appeasing the Militants, Asia Report
N°125, 11 December 2006
Nepal's Peace Agreement: Making it Work, Asia Report
N°126, 15 December 2006
Afghanistan's Endangered Compact, Asia Briefing N°59, 29
January 2007
SOUTH EAST ASIA
Indonesia Backgrounder: Jihad in Central Sulawesi, Asia
Report N°74, 3 February 2004
Myanmar: Sanctions, Engagement or Another Way Forward?,
Asia Report N°78,26 April 2004
Indonesia: Violence Erupts Again in Ambon, Asia Briefing
N°32, 17 May 2004
Southern Philippines Backgrounder: Terrorism and the Peace
Process, Asia Report N°80, 13 July 2004 (also available in
Indonesian)
Myanmar: Aid to the Border Areas, Asia Report N°82, 9
September 2004
Indonesia Backgrounder: Why Salafism and Terrorism Mostly
Don't Mix, Asia Report N°83, 13 September 2004
Burma/Myanmar: Update on HIV/AIDS policy, Asia Briefing
N°34, 16 December 2004
Indonesia: Rethinking Internal Security Strategy, Asia Report
N°90, 20 December 2004
Recycling Militants in Indonesia: Darul Islam and the
Australian Embassy Bombing, Asia Report N°92, 22 February
2005 (also available in Indonesian)
Decentralisation and Conflict in Indonesia: The Mamasa
Case, Asia Briefing N°37, 3 May 2005
Southern Thailand: Insurgency, Not Jihad, Asia Report N°98,
18 May 2005 (also available in Thai)
Aceh: A New Chance for Peace, Asia Briefing N°40,15 August 2005
Weakening Indonesia's Mujahidin Networks: Lessons from
Maluku andPoso, Asia Report N° 103, 13 October 2005 (also
available in Indonesian)
Thailand's Emergency Decree: No Solution, Asia Report
N°105, 18 November 2005 (also available in Thai)
Aceh: So far, So Good, Asia Update Briefing N°44, 13 December
2005 (also available in Indonesian)
Philippines Terrorism: The Role of Militant Islamic Converts,
Asia Report N°l 10, 19 December 2005
Papua: The Dangers of Shutting Down Dialogue, Asia Briefing
N°47, 23 March 2006 (also available in Indonesian)
Aceh: Now for the Hard Part, Asia Briefing N°48,29 March 2006
Managing Tensions on the Timor-Leste/Indonesia Border,
Asia Briefing N°50, 4 May 2006
Terrorism in Indonesia: Noordin's Networks, Asia Report N°l 14,
5 May 2006 (also available in Indonesian)
Islamic Law and Criminal Justice in Aceh, Asia Report N°l 17,
31 July 2006 (also available in Indonesian)
Papua: Answers to Frequently Asked Questions, Asia Briefing
N°53, 5 September 2006
Resolving   Timor-Leste's   Crisis,   Asia   Report   N°120,   10
October 2006
Aceh's Local Elections: The Role ofthe Free Aceh Movement
(GAM), Asia Briefing N°57, 29 November 2006
Myanmar: New Threats to Humanitarian Aid, Asia Briefing
N°58, 8 December 2006
Jihadism in Indonesia: Poso on the Edge, Asia Report N°127,
24 January 2007
OTHER REPORTS AND BRIEFINGS
For Crisis Group reports and briefing papers on:
Africa
Europe
Latin America and Caribbean
Middle East and North Africa
Thematic Issues
CrisisWatch
please visit our website www.crisisgroup.org
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 38
APPENDIX E
INTERNATIONAL CRISIS GROUP BOARD OF TRUSTEES
Co-Chairs
Christopher Patten
Former European Commissioner for External Relations,
Governor of Hong Kong and UK Cabinet Minister: Chancellor of
Oxford University
Thomas Pickering
Former U.S. Ambassador to the UN, Russia, India, Israel, Jordan,
El Salvador and Nigeria
President & CEO
Gareth Evans
Former Foreign Minister of Australia
Executive Committee
Cheryl Carolus
Former South African High Commissioner to the UK and
Secretary General ofthe ANC
Maria Livanos Cattaui*
Member ofthe Board of Directors, Petroplus Holding AG,
Switzerland: former Secretary-General, International Chamber of
Commerce
Yoichi Funabashi
Chief Diplomatic Correspondent & Columnist, The Asahi Shimbun,
Japan
Frank Giustra
Chairman, Endeavour Financial, Canada
Stephen Solarz
Former U.S. Congressman
George Soros
Chairman, Open Society Institute
Par Stenback
Former Foreign Minister of Finland
*Vice-Chair
Morton Abramowitz
Former U.S. Assistant Secretary of State and Ambassador to Turkey
Adnan Abu-Odeh
Former Political Adviser to King Abdullah II and to King Hussein
and Jordan Permanent Representative to the UN
Kenneth Adelman
Former U.S. Ambassador and Director ofthe Arms Control and
Disarmament Agency
Ersin Arioglu
Member of Parliament, Turkey: Chairman Emeritus, Yapi
Merkezi Group
Shlomo Ben-Ami
Former Foreign Minister of Israel
Lakhdar Brahimi
Former Special Adviser to the UN Secretary-General and Algerian
Foreign Minister
Zbigniew Brzezinski
Former U.S. National Security Advisor to the President
Kim Campbell
Former Prime Minister of Canada: Secretary General, Club of Madrid
Naresh Chandra
Former Indian Cabinet Secretary and Ambassador of India to the U.S.
Joaquim Alberto Chissano
Former President of Mozambique
Victor Chu
Chairman, First Eastern Investment Group, Hong Kong
Wesley Clark
Former NATO Supreme Allied Commander, Europe
Pat Cox
Former President of European Parliament
Uffe Ellemann-Jensen
Former Foreign Minister of Denmark
Mark Eyskens
Former Prime Minister of Belgium
Joschka Fischer
Former Foreign Minister of Germany
Leslie H. Gelb
President Emeritus of Council on Foreign Relations, U.S.
Carla Hills
Former Secretary of Housing and U.S. Trade Representative
Lena Hjelm-Wallen
Former Deputy Prime Minister and Foreign Affairs Minister,
Sweden
Swanee Hunt
Chair of Inclusive Security: Women Waging Peace: former U.S.
Ambassador to Austria
Anwar Ibrahim
Former Deputy Prime Minister of Malaysia
Asma Jahangir
UN Special Rapporteur on the Freedom of Religion or Belief
Chairperson, Human Rights Commission of Pakistan
Nancy Kassebaum Baker
Former U.S. Senator
James V. Kimsey
Founder and Chairman Emeritus of America Online, Inc. (AOL)
Wim Kok
Former Prime Minister of Netherlands
Ricardo Lagos
Former President of Chile
Joanne Leedom-Ackerman
Novelist and journalist, U.S.
Ayo Obe
Chair of Steering Committee of World Movement for Democracy,
Nigeria
 Nepal's Constitutional Process
Crisis Group Asia Report N° 128, 26 February 2007
Page 39
Christine Ockrent
Journalist and author, France
Victor Pinchuk
Founder oflnterpipe Scientific and Industrial Production Group
Samantha Power
Author and Professor, Kennedy School of Government, Harvard
Fidel V. Ramos
Former President of Philippines
Ghassan Salame
Former Minister, Lebanon: Professor of International Relations, Paris
Douglas Schoen
Founding Partner of Penn, Schoen & Berland Associates, U.S.
Thorvald Stoltenberg
Former Foreign Minister of Norway
Ernesto Zedillo
Former President of Mexico; Director, Yale Center for the Study
of Globalization
INTERNATIONAL ADVISORY COUNCIL
Crisis Group's International Advisory Council comprises major individual and corporate donors who contribute their advice
and experience to Crisis Group on a regular basis.
Rita E. Hauser (Chair)
Elliott F. Kulick (Deputy Chair)
Marc Abramowitz
Anglo American PLC
APCO Worldwide Inc.
Ed Bachrach
Patrick E. Benzie
Stanley M. Bergman and
Edward J. Bergman
BHP Billiton
Harry Bookey and Pamela
Bass-Bookey
Carso Foundation
John Chapman Chester
Chevron
Citigroup
Companhia Vale do Rio Doce
Richard H. Cooper
Credit Suisse
John Ehara
Equinox Partners
Konrad Fischer
Alan Griffiths
Charlotte and Fred Hubbell
Iara Lee & George Gund III
Foundation
Khaled Juffali
George Kellner
Shiv Vikram Khemka
Scott J. Lawlor
George Loening
McKinsey & Company
Najib A. Mikati
Donald Pels
PT Newmont Pacific Nusantara
(Mr. Robert Humberson)
Michael L. Riordan
Tilleke & Gibbins
Baron Guy Ullens de Schooten
VIVATrust
Stanley Weiss
Westfield Group
Woodside Energy Ltd
Don Xia
Yapi Merkezi Construction and
Industry Inc.
Yasuyo Yamazaki
Shinji Yazaki
Sunny Yoon
SENIOR ADVISERS
Crisis Group's Senior Advisers are former Board Members (not presently holding national government executive
office) who maintain an association with Crisis Group, and whose advice and support are called on from time to time.
Martti Ahtisaari
(Chairman Emeritus)
Diego Arria
Paddy Ashdown
Zainab Bangura
Christoph Bertram
Jorge Castaiieda
Alain Destexhe
Marika Fahlen
Stanley Fischer
Malcolm Fraser
Bronislaw Geremek
I.K. Gujral
Max Jakobson
Todung Mulya Lubis
Allan J. MacEachen
Barbara McDougall
Matthew McHugh
George J. Mitchell
(Chairman Emeritus)
Surin Pitsuwan
Cyril Ramaphosa
George Robertson
Michel Rocard
Volker Ruehe
Mohamed Sahnoun
Salim A. Salim
William Taylor
Leo Tindemans
Ed van Thijn
Shirley Williams
Grigory Yavlinski
Uta Zapf

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