A new constitution was agreed in Nepal this September, but will the document bring concord to the often unsettled nation? Arguing that constitutional stability is critical for long-term development, Daniel Goldstein examines Nepal’s mechanisms for constitutional change and projects the nation’s constitutional stability over the next 20 years.   

Despite the end of a ten year civil war and total rejection of the monarchy in late 2006, Nepal has remained a politically turbulent country.  Although an interim constitution passed in 2007, the process of agreeing a finalised constitution was delayed by political bickering.  Shortly after conclusion of the civil war, the one-time military foes of the government, the Maoist, entered the legislature as a political party.  Gaining significant support, the Maoist clashed with the traditional political parties over the constitution.  Though there have been several amendments to the interim constitution, most progress toward a new document occurred in the months preceding the September 2015 enactment of the new constitution.  The suddenly expedited process has been partially attributed to national solidarity following the April 25 2015 earthquake, which killed over 8,500 people.

Divisions along ethnic, language, and caste lines pervade Nepal, factors that substantially influenced passage of the new constitution, which creates a federal system dividing the country into seven states.  The Maoist campaigned strongly for the federal constitution which aimed to provide rights to discriminated minorities. However, concerns that the new constitution does not go far enough to protect the rights of minorities, as well as objections to the drawing of state borders, have led to continued upheaval since the September enactment.  Protests have been especially prevalent in the region of Terai, bordering India, where residents feel that the new constitution will allow for continued discrimination against those of mixed Indian and Nepalese backgrounds and against women.  The constitution grants Nepalese citizenship to children of Nepalese men who marry immigrants, but this privilege is not extended to Nepalese women unless their immigrant husband first becomes a Nepalese citizen. There is additional worry that the constitution was hurriedly sanctioned by the predominant political parties, which are led primarily by males of high castes, and that the present dissatisfaction with the constitution could lead to a renewal of violence.

Despite these issues, prevailing theory holds that it would be misguided to significantly alter the constitution.  Assuming dissatisfaction subsides or is addressed through further legislation, it is argued that the long-term stability of the nation is best served through a stable constitutional arrangement.  Nobel Laureate Douglass North explained in his seminal work (1990) that the stability of institutions is critical to allowing political actors to adapt to prevailing norms and, subsequently, in creating sustained economic development. While constitutional rigidity is not always a virtue, it has been argued by Arend Lijphart that the stability of political institutions (e.g., the cabinet) is a prerequisite for the durability of a nation.

Once the current unicameral legislature shifts to the bicameral system as outlined in the new constitution, amendments will be able to be introduced in either house of the federal parliament.  Any proposed amendment will then requires dissemination for public scrutiny.  If the proposition involves a state, the amendment will need to be approved by a majority of the relevant state’s assembly. Next the proposal will require passage by a two-thirds supermajority of both federal houses before, lastly, the amendment will be sent to the President for final approval.  The legislature’s ability to make changes to the constitution through parliamentary procedures presents a potential problem, particularly given accusations that Nepalese politics are controlled primarily by a narrow subset of elites. As a result, constitutional stability remains somewhat doubtful.

Thus a key question is how frequently can we expect the new constitution to be amended in future? By analysing the frequency of constitutional amendments we can make predictions about constitutional stability based on Nepal’s recent past and similar historical instances.  A medium-term forecast (20 years) has been drawn with the aim of separating innate constitutional instability from initial turbulence.  The Comparative Constitutions Project (CCP) dataset indicates the number of years during which an amendment was added to a given nation’s constitution, henceforth referred to as ‘amendment-years’.  While not necessarily indicative of the actual impact of an amendment, this measure can be used to designate the relative frequency of constitutional change.  Under the previous constitution (data from 2007-2013), Nepal experienced three amendment-years within a seven year period, which extrapolates to approximately nine amendment-years over the next 20 years.

In an effort to contextualize this extrapolation, I used the CCP and Polity datasets to identify 62 constitutions from relatively democratic states in order to compare their constitutional stability to Nepal’s recent history.  Nations are considered at least partially democratic if they hold a ‘polity2’ score between naught and ten; e.g., Cuba (1901-1921) holds a score of three, indicating the presence of rather limited democratic institutions.  The table below illustrates the number of amendment-years experienced by the 62 constitutions over the 20 years following the promulgation of a new constitution (uninterrupted by passage of a new constitution).

Number of years during which constitutional amendments were passed in the first 20 years following the promulgation of a new constitution (countries with a ‘polity2’ score between naught and ten). Source: CCP and Polity datasets.

Assuming that the number of amendment-years endured by each of the 62 constitutions constitutes the likely range of possible outcomes Nepal may experience over the next twenty years (a range of naught to 19), the question here is whether Nepal’s constitution will match or exceed the previous extrapolation of nine amendment-years.  In reviewing the 62 constitutions, I found ten instances in which a constitution underwent nine or more amendment-years, which suggests a 16 per cent likelihood that Nepal will experience nine or more amendment-years in the next 20.

However, it is a dubious assumption that each of the 62 constitutions represents a potential pathway for Nepal’s future.  The comparison gains some credence from the overlap with Nepal’s type of government (democracy) and from the projected period of time measured following passage of a new constitution.  Yet, the time-period, location, and size of many of these nations diverge from Nepal’s own characteristics.  A potentially weaker assumption is that the mean of the 62 constitutions, 4.63 amendment-years, represents a more balanced prediction, as some of these deviating characteristics could balance out.

A second test, comparing the projected nine amendment-years to the 4.6 amendment-years, requires creating a range of means for the 62 constitutions through a bootstrapping technique. This produces more observations by repeatedly selecting one of the values of amendment-years from the 62 possible constitutions (e.g., Brazil, 17 amendment-years).  The selected value is then recorded but placed back into the original sample before the process repeats.  The dataset was resampled 1000 times, with the mean of each of the 1000 new samples graphed below.  The overall mean of the samples is 4.64 with a standard deviation of 0.64.

Comparing the extrapolation of nine amendment-years to the distribution below, I find that the likelihood of nine amendment-years occurring is naught per cent. This strongly rebukes the extrapolation suggested by the CCP data, and suggests that Nepal is destined for a less turbulent constitutional future.

Histogram of resampled means

These two techniques allow for rough forecasts of Nepal’s constitutional stability.  Whereas extrapolation of recent Nepalese history would suggest further constitutional instability, the employment of historical trends indicates a more modest projection.  What this actually means for the tranquility of the nation remains to be seen, but Nepal possesses a long history of adaptation in the face of adverse situations.  Even if constitutional stability remains elusive, passage of the new constitution brought an end to the turbulent constitutional interim period, an event which seemed highly unlikely only recently.

About the author

Daniel Goldstein is a Research Volunteer at The Constitution Unit.