Effective or Illusion of Participation? Interrogating the Constitution writing process in Nepal
At the time 90 percent of the members of the Second Constituent Assembly were endorsing the new Constitution of Nepal, residents of half of the country, mostly from the Tarai/Madhesh but also from the hills and mountains as well, had been protesting against the fast-track constitution making process. The protest movements transformed into protest against the new Constitution that the marginalized group members perceive to be discriminatory or that does not extend them equality through recognition of identity and autonomy, among other things. The protests have continued for five months while India has tacitly supported the blockade of the Madhesi front to pressure the ruling parties to amend the constitution. The two claims by the constitution makers and the groups engaged in the protests are contradictory – how can a constitution signed by 90 percent of representatives be opposed by such a large number of population for such a long period? This paper, relying on theories of participation, including democratic constitution making processes (Dahl 1991; Elkins et al 2009), investigates the claims of participatory constitution making process, or the lack of it. I ask the question whether the constitution writing process met the principle and criteria for making it participatory. I will examine the time table, deliberation records, and participation archive of the Second Constituent Assembly, the Interim Constitution and the process it laid down for the making of the new Constitution as well as news coverage of the constitution making process, particularly of the final two months. While the election of the Constituent Assembly can be termed as participatory and inclusive, the paper argues that the constitution writing process in the second Constituent Assembly undermined fundamental principles of participation, such as the right to introduce agendas by representatives, the right to effective and adequate deliberation, the right to vote freely and as equal, and the right of the elected assembly to take decisions on all the constitution articles (as against major decisions taken outside the CA by three Bahun leaders), the right of people to deliberate and provide input, and so on. Even though participatory process have gained widespread legitimacy in different fields outside of politics, elite have often undermined participation by invoking it to gain legitimacy but manipulated it to prevent the poor and powerless from having effecting role in decision making process to maintain and protect their interests and privileges (Arnstein 1969; Cornwall 2005). The paper concludes that the dominant group leaders in Nepal that effectively controlled the major political parties engaged in token participation to legitimize the process that clearly defied the principles of participation.