Spoiler alert.

Photographer: Prakash Mathema/AFP/Getty Images

Nepal's Lesson for All Constitutional Governments

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The violence in the Terai plain of Nepal over the last six weeks may not be on your radar screen. But the blockade of the Nepal-India border created by armed groups from the Madhesi ethnic minority actually has global significance.

The reason is surprising: On Sept. 20, Nepal ratified a new constitution after a fitful and frustrating eight-year process. You'd think this would be good news, heralding an era of good feelings. Instead, ratification drove the Madhesis into something very like open revolt.

Thus, a question of universal relevance: Why do some constitutions work, and others fail? Put another way, what's the essence of a constitutional deal that enables it to succeed?

There is, I think, an intuitive answer to this question. Most people, asked what a constitution is for, would say that it’s an agreement among the majority of the people on how they want to be governed. The U.S. Constitution starts with the words “We the people.” We know that this doesn't literally mean every single one of the people. So we think that, in a democracy, the constitution reflects the ideal of majority rule.

But that answer is wrong. Constitutions exist as much or more to protect minorities as they do to facilitate majority agreement.

That majority-favoring view certainly drove the constitutional deal reached in Nepal. The odyssey started in 2001, when the crown prince killed his father, mother, siblings, one of his uncles and several aunts before shooting himself. In the aftermath, the new king, a brother of the murdered one, struggled to rule. Maoist rebels traded violence for participation in a significant nationwide protest movement, which ultimately led to the abolition of the monarchy.

Elections for a constituent assembly took place in 2008. The Maoists won a plurality but not a majority. Under an interim constitution, they formed a coalition government, with the Congress Party of Nepal in opposition.

From 2009 until this year, through government turnovers and new elections, the constitutional process failed to produce a document that could garner the agreement of the major political parties. The chief sticking point was that the Maoists and Congress couldn't agree on how to share power, even after 2013 elections gave Congress and other so-called traditional parties a greater position in the assembly than the Maoists.

The terrible earthquakes this past April and May broke the impasse. The major parties finally agreed to adopt a federal system, in principle well-suited to the country's many divisions, which include caste, geography, ethnicity and as many as 100 languages.

One key to the agreement was that the big parties agreed to reduce the degree of proportional representation from the interim constitution. Proportional representation is a way of electing representatives that makes it easier for small groups to get their favored candidates into office. The big parties therefore had a common interest in reducing its effects, because they anticipated that their share of the total of elected representatives would go up even if their number of votes didn’t change.

From the standpoint of majoritarian democratic politics, the new constitution should’ve been a winner. Not all Nepalis liked it -- but a big majority did.

One hotbed of opposition was the Terai region, along the border with India. Madhesis there objected to the reduction in proportional representation. They also didn’t like a constitutional provision that makes it difficult for the children of a Nepali woman and a foreign man to become citizens. This provision was much more likely to be relevant in a border region, where ethnic and familial ties with India produce mixed marriages.

The majority view was, plausibly enough, that minorities can’t get everything they want in a constitutional negotiation. But what the majority parties forgot is that, if you treat minorities too cavalierly in the final constitutional deal, you leave them no option but to respond with violence.

Groups that dissent from a constitutional deal by creating disorder are known in the constitution-making business as “spoilers.” They take a big risk when they resort to violence, because the majority may respond with force, as the Nepali government has done. Typically, spoilers judge that, having failed to exert their will democratically, they can gain permanent concessions by demonstrating their capacity to freeze the system.

In the case of the Madhesis, that spoiling capacity is significant. India is Nepal's largest trading partner. With the border to India blockaded, Nepal must look to China for energy and other supplies. Prices will inevitably rise.

Eventually, one of two things will happen. Either the state will suppress the Terai blockade and the Madhesis will be forced to knuckle under, or the state will make constitutional concessions to the spoilers. The spoilers think that in the first scenario they will be no worse off than they already were. In the second scenario, they will be better off.

The upshot is that constitutions aren’t just about effectuating the will of the democratic majority. To a large extent, they're also about placating minorities and protecting them.

Minority protection can range from morally desirable -- like protecting equal rights and free political participation -- to payoffs for spoilers who make lots of trouble. In U.S. constitutional history, the first minority that thought it needed protecting was property-holding creditors, who feared wealth redistribution.

The second major minority that sought and got constitutional protection was Southern slaveholding whites. It was only in the post-World War II era that American constitutional law started seeing the protection of religious and racial minorities as a key task.

A constitution that can’t produce peace will soon become a failed constitution. Nepal’s new constitution has a relatively short window to work. Those who drafted it should settle on a strategy soon. And if history is any guide, their best bet will be to make concessions to the spoilers, and protect their interests -- even if it’s more than they deserve.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net