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The Rejection of Constitutional Incrementalism in Nepal’s Federalisation

Malagodi, M. ORCID: 0000-0003-2904-5651 (2018). The Rejection of Constitutional Incrementalism in Nepal’s Federalisation. Federal Law Review, 46(4),

Abstract

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post -conflict constitutional settlement. This article explains why ‘constitutional incrementalism’ – the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner – was ultimately (and wisely) rejected in Nepal’s 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 Nepal’s federal arrangements throughout the country’s latest constitution-making process (2008- 5). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Const itution 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 now by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s 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.

Publication Type: Article
Subjects: J Political Science > JF Political institutions (General)
K Law
Departments: The City Law School > Academic Programmes
URI: http://openaccess.city.ac.uk/id/eprint/20767
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