Post Constitution Nepal: The Crisis And How To Overcome It – Analysis

By Bal Krishna Jha*

Eventually, on 20th September, 2015, amidst scores of protests and curfews, the Constituent Assembly (CA) in Kathmandu promulgated the constitution of Nepal.

The Madhesis, Janajatis and other marginalized groups greeted it by observing the day as a black day. Protesters marched with black flags throughout Terai/Madhes. They burnt copies of the constitution. Black flags were flown. Most of the cities, towns and villages in Madhes boycotted the celebrations. Clearly, the constitution was rejected by the Madhes people. India, the United States and the UN responded by just ‘taking note’ of it, and asking the government to address the demands of the dissenting groups.

The Constituent Assembly (CA) had failed to finalise the constitution in the first instance. The first CA of 2008 got stuck with the issue of carving out states in the new federation. In a diverse country consisting of about 100 nationalities, the Nepalese people were earlier made to live under a unitary system held by force. All the distinct groups had to associate themselves with the identity and ethnicity imposed on them by the ruling elites called Khas-Arya, also called Bahun-Chhetri— the so called hill-elites of Nepal. The Madhesis, Janajatis and other marginalized groups, therefore, demanded a federal state, consisting of provinces based on their ethnic identities.

The second CA elected in November 2013 also grappled with the same problem of federalism. The only reason that this CA was able to move forward on the issue was because of the urgency felt by the people after the earthquake of April 25, 2015 to bring the constitution-making efforts to an end without further delay. The Kathmandu elites used the earthquake to justify fast-tracking of the process, over-stepping the genuine demands of a wide cross section of people and their representatives for ethnicity and identity based provinces. In the post-earthquake period, all the contentious issues related to constitution were handled by just three or four persons from the four major political parties for their own vested interests. All other political parties, including Madhes-based ones were sidelined.

The commitment of the major parties to create a single Madhes province in the Terai region, was also conveniently overlooked. In fact, there was an agreement for an autonomous Madhes state after 20-day long protests by the Madhesis in January 2007. It had cost 52 Madhesi lives. The current federal boundaries in the new constitution violated this agreement, and the districts in the Madhes/Terai belt have been inducted into five different provinces, merging about 13 of them with four northern hill states This delineation was based on only one principle, i.e., the principle of retaining hegemony of the Khas-Arya race on Madhes and throughout Nepal.

On the day of voting on the constitution, the party whips of the big parties saw to it that their CA members voted on the ‘party lines’. Accordingly, out of 598 members of the Constituent Assembly, 507 voted for the new constitution, 25 voted against, and 66 abstained on September 16, 2015. The 507 votes were heavily influenced by the party bosses, and hence it does not necessarily mean the constitution enjoys the support of 90 per cent of the population, as claimed by Kathmandu. However, the fact remains that the oppressed groups like the Madhesis and Janajatis comprising around 70% of the total population of Nepal have disowned this new constitution.

Kathmandu establishment continues treating Madhes like a colony. It is relevant to trace a little bit of history here. The Terai region was given back to Nepal by East India Company in 1816 (vide Treaty of Sugauli) and then in 1860. The only motivation for the British colonialists to give back this chunk of land could be to provide a fertile and cultivable land to the Nepalese rulers which could be used by the war mongering Gurkhas to feed themselves. The British administration did not want any problem in Sikkim, or elsewhere in northern India. The Gurkhas, who had conquered and ruled from Kathmandu, started treating Terai/Madhes since then as a prize colony. There was no effort to integrate the Madhesis who were treated as foreigners. Till very recently, the Madhesis even needed ‘passport’ to enter Kathmandu.

While the constitution was meant to unite the people of Nepal, it ended up doing just the opposite. Kathmandu elite and those benefiting from perpetuation of Khas-Arya domination have owned up the constitution, while those apprehending their marginalization are out on the roads, demonstrating and facing the bullets. Unfortunately, a dividing line has now been drawn. With over 45 days of popular demonstration, which is showing no sign of fatigue, the country is at a standstill, undecided about what course to follow next.

Is there a way out of the current crisis?

A strong and prosperous Nepal is the wish of all the internal and external stakeholders. It is only the Nepalese people who can resolve this crisis. Introspection, self-criticism and corrective actions are the need of the hour.

Nepal’s closest ally, and the biggest external stakeholder – India, too has to share some portion of the blame. While India is always eyeing Nepal’s jal bidyut (hydropower) and investing a lot in the Kathmandu elite, it has to take into account the aspiration of the people living along its border with Nepal. Any violence in the Terai region of Nepal will have a cross-border impact, which is certainly not in India’s interests. As a concerned neighbor, India should use all its influence on the Nepal leadership and persuade the Kathmandu elite to address the demands for equality made by the dissenting Madhesi, Janajati and other marginalized citizens in Nepal. If they have to choose a side, they must stay with the right cause, irrespective of praise or criticism.

Some of the following constitutional provisions need to be considered for amendment to address the demands of the dissenting groups, as well as to restore long term peace and stability in Nepal:

• Article 84(1)(a) of Part 8 of the new constitution proposes 165 electoral constituencies based on geography (land area), provincial balance, and population. This provision is discriminatory against Madhesis and would greatly under-represent Madhes in the Parliament. The Terai region is about 4 times more densely populated than the hilly parts of the country. If geography (area) and provincial balance are considered while determining the constituencies, one vote of Pahadi (person from hill) will be equivalent to 4 votes of a Madhesi. Therefore, the basis of electoral constituencies should be strictly based on population.
• Although Terai/Madhes has about half of the entire population of Nepal, it has only 24 districts (33 per cent), as compared to remaining 51 districts in hills. This means that one hill district of Manang having about 5,000 voters would have the same weightage as about 500,000 voters of Morang district of Terai.
• Since the Proportional Representation System is meant to promote under-represented groups, Article 84(2) defeats its very purpose. It makes reservation for the already over-represented Khas-Aryas under Proportional Representation. The provision needs to remove the overrepresented groups. It also needs to clearly define all the groups and communities (Madhesi, Tharu, Adibasi, Janajati, Adibasi Janajati) mentioned under Proportional Representation to do away with any ambiguities and misrepresentation while making further laws based on it.
• The constitution should also guarantee equal rights to women, including right to equal citizenship to a child that she gives birth to, without being dependent on the citizenship of her male counterpart. As per article 11 of the constitution, a child from a Nepalese mother would be a naturalized (against by descent) citizen if the father is a foreigner. Also, the period of naturalization for citizenship should be within a reasonable time frame like 5 years.
• The size of constituencies should be reviewed every 10 years, instead of 20 as mentioned in Article 286(12).
• Since there are about 40% of people who do not speak Nepali, few other major languages too should be promoted to be used in district administration, judiciary, Public Service Commission and other government bodies.

The ball is in the court of the major political parties. They need to apologise to the people for having failed to address the genuine social, economic and political needs of the people of Nepal. The Madhesi leaders too will have to take some blame and apologize to the people for their divisive politics. The representatives of Madhes have either misled or under-represented the Madhesi cause in the CA and the Parliament, probably for exchange for partisan or personal favours from Kathmandu. If all the political actors show their maturity, shed their prejudices and engage in a constructive dialogue a long lasting, and much needed consensus will not be beyond their reach.

*The writer is a US based Political Analyst dealing with affairs relating to Nepal