Competing Nationhood and Constitutional Instability: Representation, Regime, and Resistance in Nepal
Despite being the oldest state in South Asia and having gone through eight constitutions (two proto-constitutions and six formal constitutions), Nepal is still grappling with constitutional instability as the first Constituent Assembly (2008-2012) could not craft a constitution and it is not certain whether the Second Constituent Assembly elected in November 2013 can craft a new Constitution that would stabilize constitutionalism in the country. This calls for understanding the reasons behind the constitutional instability, which could be useful both for practical and academic purposes.
The paper will examine why constitutional stability still eludes Nepal today by juxtaposing two sets of literature to analyze the contestations over the constitutions that have led to the instability in Nepal and elsewhere. Democratization literature, especially those focusing on transition to democracy in the first phase and democratic deepening that could occur in the second stage, witness contestations and changes in the constitutions (new or major amendments). Nation-building literature, on the other hand, have either argued that assimilation policies combined with coercion over a long period can establish a nation-state or that culturally diverse countries can become stable only when multiple nations are recognized within a state.
Constitutions and its institutions affect governed people in different ways, including by advantaging or disadvantaging certain identity groups and their culture and issues, and creating varied incentives, opportunities, hindrances and/or restrictions. The constitutions once promulgated, however, are also affected by agents (rulers and ruled) through their decisions and actions to support, reinforce, follow, accept, ignore, undermine or resist and rebel against them. While the earlier constitutional instabilities arose largely due to the several contestations between democratic and non-democratic actors, the recent constitution crafting process was bogged down over identity issues, which were in effect contestations over attempts to deepen democracy by extending more rights to more people through crafting a constitution that would recognize a multination-state.
First, I will describe the constitutional epochs of nation-state and emerging multination-state by examining constitutional provisions and public policies’ treatment of cultural elements in different constitutions (two proto constitutions, six formal constitutions and the failed drafting process for a new constitution). Second, I will examine the cultural identity characteristics of people involved in writing the constitutions and see whether it affected the nature of the constitutions. Third, the paper will look at protests, resistance, and culture-preserving activities of non-ruling identity groups during the various constitutional epochs to examine acceptance or opposition of the constitutions by the people. The regime type (authoritarian and democratic) variable will be controlled for this examination. Fourth, I will see if the emergence of constitutional transformation that began to recognize the diversity of the country has come about by protests and resistances and/or make-up of the state and constitution-framing bodies. This study of Nepal demonstrates that nation-state building through constitutions and state policies fail in diverse societies despite long and multiple attempts once democracy is introduced and democratization gains momentum.