The next few months are highly critical to Nepal, according to Dinesh Tripathi, LL.M, a Supreme Court Advocate of Nepal, because they provide Nepal an opportunity to become a “new model” for legitimate democratic transformation. The behavior of monarchists and Maoists and the involvement of the international community will largely determine the success of Nepal’s push for a democratically elected constituent assembly and its drafting of a new constitution, Tripathi said Wednesday during a presentation entitled “Risks and Challenges of Building a Democratic and Constitutional State in Nepal.”
After a “spontaneous and unprecedented” uprising in Nepal in April 2006, King Gyanendra was reduced to the status of a figurehead, providing the people of Nepal an historic opportunity to “get rid of the monarchy and establish a true, genuine, and people-centered democratic order.”
Yet elections for the constituent assembly, which were supposed to occur in June, have already been pushed back to November 22. There is “cultural mistrust” abound—“nobody is confident” the elections will actually occur, according to Tripathi. If the elections don’t take place in November, he says it will be “disastrous” for Nepal and its future as a democratic state.
Nepal’s transformation is dependent on a credible peace process, Tripathi said. Although Maoists declared a cease fire in June of 2006, they continue to use intimidation, violence and extortion. The upcoming elections offer Maoists an opportunity to transform themselves into a responsible political party.
If the elections do indeed occur in November, the new constituent assembly will have two years to create and adopt a new constitution. According to Tripathi, the constitution should ensure: a republican state, a democratically accountable military, inclusiveness, human rights, an effective judiciary and a federalist structure.
Considering Nepal’s history, Tripathi said, a king and a democratic assembly can not coexist. In the 1950s, 1960s and 1990s, such an experiment failed, he said, and the king used his traditional authority to dismantle the constitution. Instead, according to Tripathi, Nepal’s new constitution should call for a democratically elected head of state.
The constitution should also guarantee that the military is accountable to the democratically elected assembly rather than a king. “The military has to be restructured so that it is more professional and politically neutral, and so that it doesn’t dismantle the democratic process,” Tripathi said.
Tripathi also called for a more “inclusive, broad-based” participation in the democratic process. “Exclusion is the biggest issue in Nepal,” he said, and both the process of developing a new constitution and the constitution itself should seek to empower indigenous, marginalized groups.
Broadly defined human rights, ranging from prototypical civil and political rights to economic, social and cultural human rights and protection of the environment should all be included in the new constitution, according to Tripathi. “Human rights should be a kind of lighthouse, or central theme of the new constitution,” he said.
He also said that the new constitution should define the judiciary as the guardian or protector of the supremacy of the constitution, so that it cannot be as easily dismantled as Nepalese constitutions have been in recent history.
Lastly, Tripathi said that he believes the constitution should create a federal state. Many would not think of Nepal as requiring a federalist structure because it’s relatively small, but federalism is a matter of diversity, not size, he said. “Nepal is very diversified, and needs federalism to create local autonomy and ensure better access to resources,” he said.
Tripathi suggested that there is credence to concerns about monarchists and Maoists during this democratic transformation. “There is cause for serious doubt that the king and the military will accept a legitimate democratic transformation,” he said. “And there is some evidence that the military did not fight wholeheartedly against the Maoist insurgency,” bringing into question the Maoists’ commitment to participating as a democratically elected political party.
These concerns exemplify why Tripathi believes international support and pressure, especially in the form of media and civil society presence, are crucial to Nepal’s current democratic transformation.