The procedure for drafting the constitution was laid out in the 2007 Interim Constitution: decision by consensus, and failing that by a two-thirds majority of the CA. There was also a space in between these two processes for parliamentary party leaders to intervene to seek consensus. Ultimately, though, decision-making with the senior leadership of the major political parties – NC, UML, UCPN-M and the Madhes-based parties – outside the purview of either of the CAs. Both the 22-Point Agreement of 15 May 2012 (CA I), which nearly led to a constitution, and the 16-Point Agreement of 8 June 2015 (CA II), which actually did, resulted from such high-level bargaining.
In the CA itself, consensus proved elusive from the very beginning. Apart from the Committee for Protection of Fundamental Rights of Minority and Marginalised Communities in CA I, and the Review Committee (formally known as Committee on Constitution Records Study and Determination) of CA II, all the other committee reports resulted from a majority decision. The removal of the monarchy as a common enemy after the end of the war made it much harder to forge a mutual position. Polarisation among political parties further contributed to the failure to achieve consensus, including over power sharing during the making and unmaking of governments, and key constitutional issues, such as the type of government, federalism and the electoral system.
Although both the CAs broadly reflected Nepal’s social and ideological diversity, negotiations were largely split between one (more conservative) side led by the traditional parties (NC and UML) and the other (more progressive) side led by the UCPN-M in alliance with Madhes-based parties, and, in the case of CA I, the Janajati caucus. This neat bifurcation began with the thematic committees, and moved up through the Constitutional Committee of CA I, and the Committee on Constitutional-Political Dialogue and Consensus (CCPDC) of CA II – both of which comprised representatives of all political parties in the respective CAs and included their senior leadership.
Differences between the two sides came to a head around major contentious issues: the form of government – parliamentary versus presidential versus a mixed system; the electoral system – first-past-the-post (FPTP) versus proportional representation (PR) versus a mixed system; territorial federalism versus identity-based federalism; whether or not to maintain a Constitutional Court; and provincial representation in the Upper House of the national parliament – an equal number from each province or based on population size.
The Constitutional Committee of CA I and the CCPDC of CA II both formed sub-committees to resolve points of contention between the parties in the thematic committees. The five-member Dispute Resolution Sub-Committee of CA I was headed by Pushpa Kamal Dahal Prachanda, UCPN-M Chair, and included the senior leaders from the NC, UML, the Madhes-based parties, and one small party, the CPN (United). It was able to resolve some differences, such as on a bicameral parliament at the national level and unicameral assembly at the provincial, and overall reduced the number of contentious issues from 288 to 117.
The remaining 117 contentious issues were handed over to the CCPDC in CA II, headed by senior UCPN-M leader Baburam Bhattarai. The new nine-member Dispute Resolution Sub-Committee was headed by Laxman Lal Karna from one of the Madhes-based parties, and consisted of second-tier leaders of both big and small parties. It was able to come up with recommendations to resolve many of the outstanding issues – for example, proposing equal weight to FPTP and PR in the distribution of parliamentary seats, maintaining a Constitutional Court for a limited period, and proportional representation of all the aggregated social groups in both elected and non-elected state apparatus, including the judiciary. But still it could not suggest a solution to the federal design.
In any case, the CCPDC rejected these recommendations and tensions between progressive and conservative agendas continued to undermine progress. For example, in November 2014 the NC and the UML, along with some smaller parties, presented an alternative proposal that pushed for FPTP instead of a mixed electoral system, for a parliamentary system, and for territorially based federalism with seven provinces.
In CA I, the different caucuses comprising CA members across political parties were able to include identity- related rights in the reports of the CA committees. But CA II effectively disallowed any kind of caucusing, for instance by the NC, the UML and the UCPN-M issuing party whips against proposing amendments to the draft constitution and also during voting. This was despite the fact that, although the party whip was recognised in the CA’s function as the Legislature-Parliament, the CA rules had no provisions for the whip in the constitutional business of the CA. Some CA members from the NC initially defied the whip but later had to relent. Hence, the role of Madhesi, Janajati and Dalit CA members along with women representatives was confined to serving as lobbying groups within their respective parties.