Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

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The old order is dying, the new order is not yet born


Politics of constitution demolishing and constitution


building in Nepal


Yash Ghai*


ForovertwocenturiesNepalhasbeen governed by three upper-caste


communities: Brahmins, Chhetris and Newars. Under the influence of


Hinduism and the monarchy, ‘untouchables’ (Dalits, in modern parlance),


women, indigenous peoples (Janajatis), and the people of the southern parts were


marginalised. Struggles for democracy in the 1950 s were less about social justice


than about the access of the elite communities to the spoils and administration of


the state, reflected in constitutional changes and fully achieved in the 1990


constitution. The Maoist rebellion in the mid- 1990 s seriously hampered the


working of the constitution, although not the hegemony of the upper-caste


communities. The uprising of the people against the king in April 2006 changed


the context of that rebellion, accelerated the achievement of the ceasefire, and


introduced a new constitutional agenda, based on social justice and the inclusion


of the marginalised community in the affairs and institutions of the state. How-


ever, despite the overthrow of the monarchy and a multiparty government of


parties committed to fundamental state restructuring, progress towards a new


dispensation has been slow. A new constitution should have been adopted before


April 2010 by an elected, representative constituent assembly. However, disagree-


ment between, and among, the former elites, Maoists (still firmly in control of


politics), and the marginalised communities, who are now conscious of their


rights, has diverted attention from the constitution-making process, and Nepal is


still left with an interim constitution.


The chapter begins by discussing the 1990 constitution (in force at the start of the


twenty-first century) and the challenges to it. It then turns to the popular uprising


against the monarchy in 2006 , and reviews developments relating to the repeal of


the constitution; the establishment of interim constitutional arrangements; and the


* I thank Ka ̊re Vollan, Jill Cottrell and Uddhab Pyakurel for their comments and assistance
in the revision of this chapter.

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