The Field Study

5.4 Some Side Effects of the 2008 System

use the traditional Marxist-Leninist strategy relying on an industrial proletariat which hardly existed²⁰⁹.

The social conflicts had at least two dimensions: The exclusion based upon caste and on ethnicity. The Dalits had been untouchables and had met discrimination based upon caste regardless of their individual wealth and position otherwise. For Janajatis, the exclusion meant that a number of groups were kept out of economic, social and political development and influence without facing the kind of discrimination that Dalits and excluded castes would experience.

Even if the leaders at large came from privileged castes, the Maoists were able to gain the support of excluded groups. The Dalits were promised freedom from discrimination and Janajati groups were promised inclusion and possibilities of self-rule within a federal system.

5.5.2 The Purpose of the Quotas

The inclusiveness statements of the Comprehensive Peace Agreement (CPA) and the interim constitution are seen as vital parts of the peace agreement. A democratic Nepal could not continue without giving excluded and discriminated groups representation in the Constituent Assembly. In general, informants thought that the quotas worked as intended.

However, many interviewees pointed out that the quotas often were filled by representatives of the ‘creamy layer’ within the group. Newaris, for example, would pick up representation on behalf of the Janajatis, even if Newaris have not traditionally been excluded from political life. The same is the case within the Madhesi caste group. In addition, there are poor Brahmins and Chhetris, in particular in the far west, which are excluded, and Muslims are often left out. These segments, excluded Madhesi castes, Muslims, excluded Janajatis, poor Brahmins and Chhetris do not represent strong organised groups that would instigate conflict in the short run, but their interests need to be covered to avoid conflict in the future.

Another point which was mentioned by many interlocutors was the difference between the status of those elected in FPTP and those elected by List PR in the CA. The FPTP had met the electorate and had their mandate directly from the voters. Those elected from lists had, on the other hand, been selected by the party leaders after the election²¹⁰ and their accountability towards the electorate was weak. Examples were made where an active candidate managed to campaign effectively and possibly managed to bring in few thousand voters for the party but, despite that, he was not elected and it was claimed that the voters were disappointed. The selection process had led to separate status of the CA members. Many advocated ranked lists and the Maoists in particular drew the consequence that they did not want two systems for elections to the same body any more.

209 As opposed to the 1970 Jhapa movement, which one interlocutor said failed because of a more traditional approach.

210 The candidate lists were not ranked and the party leadership could fill the seats the party had won from anywhere on the list as long as they met the quota requirements.

The interim constitution has a consensus government as its ideal²¹¹, but at the time of the interviews (early 2010), there was a majority coalition government without Maoist

participation. In particular, the Maoists stressed the need for a new consensus government in order to complete the peace process. Main decisions are made by the top leaders of the main parties even if they do not form the government together.

5.5.3 The Ability to Reduce Conflict

The CPA has worked in the sense that there has not been an armed conflict between the Maoists and the rest recently. Youth groups still create unrest locally and there was intimidation and threats in some areas at the time leading up to the elections. YCL (the Maoist youth groups) members are still in their barracks and UML is organising militant youth groups. Others may feel forced to do the same.

In 2007, there was a Madhesi revolt which led in the end to an agreement with the

government after having given more FPTP seats to the Terai and having raised the threshold for the short list which were allowed not to adhere to the quota rules.²¹² The government also agreed to a language on Madhesi province in the future federation which was open to interpretation.

This does not mean that all groups are satisfied with what has been agreed so far. The organised Janajati groups within the umbrella organisation NEFIN are frustrated partly because they feel that the rights of the indigenous people are not sufficiently covered and partly because the dialogue with the parties has not worked well. Some interviewees from Janajati groups suggested representation in parliament based upon elections within the different groups and, in their federal models, some suggest giving one indigenous group a special status within a province. Since such arrangements would create new minorities of other indigenous groups, a system of autonomous areas within the provinces has been proposed.

Many of the proposals from the Janajati groups would lead to a very complex state and others would go at the cost of equal individual rights of the population at large. On the other hand, for a country having ratified the ILO convention 169 on Indigenous and Tribal Peoples, it is important that the process of defining their constitutional rights is inclusive and an efficient dialogue is crucial to a peaceful transition to a stable democracy.

5.5.4 The Effects of Participation

The elections in 2008 produced a constituent assembly far more inclusive than any parliament before. The Madhesis are generally very pleased with their representation and so are Dalits and women. Within the Dalit community there are discussions on forming a Dalit party.

(Such a party exists, but does not have a lot of support). Some of their representatives expressed a fear that such parties would be marginalised by the main-stream parties and they

211 The interim constitution anticipates that the parties to the peace agreement should form a government but it has a parliamentary system as a fall-back arrangement.

212 A rule which was specially designed for Madhesi parties.

would therefore prefer to work within the main parties. This would, however, only be possible if the parties were fundamentally reformed and would genuinely include Dalits and excluded castes in their management, policy making, etc.

Excluded castes and Janajati groups are more silent but there are voices speaking on their behalf and they are not content with their representation. However, these groups are not well organised and those speaking on their behalf often belong to other groups.

The most frustrated group is possibly the Janajatis. They are well represented in the CA but the fact that they are all elected on party tickets makes their loyalty split. They have been permitted by the parties to form an informal caucus in the CA but they are still bound by the party programme and views. Many feel that they are not able to influence their parties to the extent they want.

After the CA elections, there are some visible changes: There is a Madhesi President and a Dalit minister. However, the same change needs to penetrate the civil administration in general. People of Terai are also disillusioned on the ground since they do not see changes even with strong Madhesi representation.

There is also a fear that many decisions in the CA will be made by the leadership of the three main parties (NC, UML and Maoists) and that the elected representatives of the CA with its broad representation will not be heard. The representation is necessary but not sufficient.

The political influence must be real.

5.5.5 Development over Time

The quotas will be needed in the future. One may look into possibilities for including groups that are still excluded and the lack of accountability within the List PR system should be removed. Since quotas may divide the society, they should be used properly.

The Maoists want to bring the concept of a consensus government into the new constitution²¹³. They suggest a strong, directly-elected president and a government that proportionally reflects the composition of the parliament. At the same time, they suggest a block vote system of election to the parliament (FPTP in multi-member constituencies), which would give a huge benefit to the largest party and reduce the number of parties in the parliament to a handful. However, they have as an alternative proposal List PR in multi-member constituencies.

Most other parties support a mixed electoral system, the main ones with a change to mixed member proportional (a fully proportional system) as opposed to the parallel system (semi-proportional) being used in 2008. Most parties seem to be willing to discuss a more targeted and simplified quota system but the proposal currently defined is similar to the 2008 system.

213 Their suggestion is that the parties should be represented in government in proportion to their representation in the parliament.

5.5.6 Side Effects

The main side effect of the system used in 2008 is that marginalised groups had their representation capped. It was not permitted to have more than 13 percent Dalits or fifty percent women on the lists, even if it was clear that those groups would still be under-represented. The complexity of the system was also recognised.

5.6 Conclusions and Thoughts for the Future