16
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.