The Rejection of Constitutional Incrementalism in Nepal's Federalisation

Published date01 December 2018
AuthorMara Malagodi
Date01 December 2018
DOI10.1177/0067205X1804600403
Subject MatterArticle
THE REJECTION OF CONSTITUTIONAL INCREMENTALISM
IN NEPALS FEDERALISATION
Mara Malagodi*
ABSTRACT
The relationship between federalism and identity was the single most contentious issue
in the drafting of Nepals 2015 Constitution, and remains an embattled feature of the
countrys post-conflict constitutional settlement. This article explains why
constitutional incrementalism’—the innovative constitution-making strategy for deeply
divided societies theorised by Hanna Lernerwas ultimately (and wisely) rejected in
Nepals federalisation process. Historically a unitary state since its creation in the late
eighteenth century, Nepal committed itself to federal restructuring in 2007, but
profound disagreements endured over the set of institutional choices concerning the
features of Nepals federal arrangements throughout the constitution-making process
(200815). Constitutional incrementalism with its emphasis on deferral, ambiguity and
contradiction was thought of in some quarters as a pragmatic and instrumental way out
of Nepals political impasse. In the end, the 2015 Constitution expressly named the
provinces (even if by just using numbers) and demarcated their boundaries already at
the time of its promulgation. Any changes to this framework can only take place by way
of constitutional amendment. This article explains why the incrementalist approach was
rejected in Nepals federalisation process, and reflects on the conditions under which
constitutional incrementalism may succeed in societies that present profound
disagreements over the collective identity of the polity.
I INTRODUCTION
The present article aims to explain the reasons why the incrementalistapproach to
constitution making was rejected in Nepals contentious process of federalisation during
the post-conflict drafting of the current 2015 Constitution (200815), and to distil key
comparative lessons from this case study. An incremental strategy would have favoured
gradualism with respect to foundational issuesthat is, deferring the making of key
decisions, and employing linguistic ambiguity and contradictory provisions in
constitutional texts.
1
Constitution makers in deeply divided societies sometimes opt for
* Mara Malagodi is a Senior Lecturer at the City Law School, City, University of London. Email:
Mara.Malagodi@city.ac.uk. I am grateful to the special issue editors, Rosalind Dixon, Ron
Levy, and Mark Tushnet, and the anonymous peer-reviewers for their insightful and
generous comments.
1
Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press,
2013) 3940.
522 Federal Law Review Volume 46
_____________________________________________________________________________________
open-ended design choices that allow future generations greater constitutional leeway
without being bound by past decisions. It is particularly difficult in post-conflict societies
to reach agreements on the most contentious issues and speak constitutionally in one
voice. As such, constitutional incrementalism may offer a pragmatic and instrumental
way out of political impasse. Ultimately, this was not the case in Nepals process of
federalisation.
To clarify, the term federalisationdesignates the set of institutional choices
concerning the features of Nepals federal arrangements made at the time of constitution
making. The ongoing post-2017 ad ministrative process of federal restructuring,
understood as the setting up of the institutions of government at provincial level after
the promulgation of the Constitution, is outside the scope of this article. As for the
expression constitutional incrementalism, this was coined by Hanna Lerner to describe
a particular type of constitution-making strategy deployed in deeply divided societies.
Lerners seminal contribution was first articulated in a 2010 article,
2
then in book form
through a more in-depth comparison of the constitution-making experiences of India
(194750), Ireland (1922), and Israel (194850).
3
Lerner argues that the incrementalist
strategy allows societies with profound disagreements over the identity of the polity and
the nature of the state to succeed in crafting a constitution (or function under an informal
one) in the short term, and to promote political stability and democracy in the long term.
The present article aims to apply Lerners framework to Nepals experience of
federalisation during the countrys post-conflict constitution-making process, and test
the viability of constitutional incrementalism in this context.
The key argument advanced in this article is that constitutional incrementalism was
not a strategy that suited Nepals political context and historical circumstances with
regard to federalisation during the drafting of the new constitution. As such, its rejection
was a positive outcome that ultimately prevented further conflict and fostered political
stability in the country. Conversely, the partial deployment of incrementalist strategies
in the drafting of the declaratory parts of the new constitution represents a step back
from the inclusionary strides in the previous Interim Constitution and contributed to
exacerbating existing political tensions and disaffection on the part of historically
marginalised groups.
Disagreements over the identity of the polity have been at the heart of Nepals post-
conflict constitutional experience. The drafting of the countrys new, permanent
constitution through the work of two Constituent Assemblies (CAs, held 200812 and
201315) has been central to the peace process (200615) after the ten-year-long civil war
between the Maoist insurgents and the government (19962006). In 1996, the Communist
Party of Nepal (Maoist) launched a Peoples Warto capture the Nepali state with a
view of initiating a radical program of state restructuring. The demand for a new,
inclusive constitution drafted by representatives directly elected by the people was
pivotal to the Maoistspolitical project and became the precondition for peace.
4
The
Maoist insurgency also brought the question of federalisation on the basis of identity at
the forefront of the countrys constitutional debates.
2
Hanna Lerner, Constitution-writing in deeply divided societies: the incrementalist
approach(2010) 16 Nations and Nationalism 68.
3
Lerner, above n 1.
4
Michael Hutt (ed), Himalayan Peoples War: Nepals Maoist Rebellion (Hurst & Company, 2004)
2857.

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