By Smruti S Pattanaik
Republican Nepal finally adopted a constitution on September 20, nearly ten years after the initiation of the peace process. It had held two elections to the Constituent Assembly to produce a constitution based on ‘consensus’ as agreed in the comprehensive peace agreement of 2006, which was midwifed by New Delhi. But the constitution, rather than resolving the fundamental problem of political representation and mainstreaming minority communities and women who were historically at the bottom of both the social and political structure, has marginalised them further. The issue of ‘consensus’ that has been at the core of writing a constitution has been eroded through majoritarianism to secure the entrenchment in power of the hill political elites.
The argument that has been a driving force behind the new constitution is this: an elected Constituent Assembly (CA) representing the will of the people should write a new constitution taking into account the aspirations of the people based on transparency and consensus. This was the reason why the Maoists had rejected the Constitution of 1990 as a compromise document dictated by the Monarchy and agreed to by the leaders of political parties who were in a hurry to acquire power when the transition was made from the Panchayat regime to multiparty democracy and constitutional monarchy. It was at that time, the Masal and Mashal radical left groups came together and formed the Communist Party of Nepal (Unity Centre), which, as part of the United National Peoples Movement (UNPM), participated in the pro-democracy movement that engulfed Nepal in 1990. One of their demands was an elected constituent assembly to write a constitution. Though the Unity Centre participated in the 1990 election, it suffered a split before the 1994 election because Prachanda’s faction was not allowed to contest, which thereupon boycotted the election and declared armed struggle, a ‘people’s war’, against a system that was a symbol of the Hindu religion, Nepali language and khas nationality. The Prachanda faction also carried forth the demand for a republic, secularism and a constitution written by the elected representatives of the people. This was reflected in the various agreements that the political parties signed after Jan Andolan II.
After the formation of an elected Constituent Assembly in 2008, all the political parties jostled to frame a constitution keeping in mind their particular electoral constituency. The victory of the Maoists and the end of constitutional monarchy gave hope to the marginalised groups, especially the Janajatis, that their political aspirations would find a place in the new constitution. Similarly, the Madhesis who have had historic grievances about the lack of proportional representation in jobs, in the army and in Parliament also aspired for accommodation. When their political concerns were not addressed in the 2007 interim constitution, the Madhesis even engaged in violent protest demanding ‘ek Madhesh ek Pradesh’.1. The UCPN-M (United Communist Party of Nepal – Maoist) was reluctant to support the cause of Madhesis because of the fear that its own support base among the Paharis would get eroded. It was only belatedly, that too after Jay Krishna Goit and Jwala Singh broke away to form a separate party, the Janatantrik Terai Mukti Morcha (JTMM), that the UCPN-M extended support for the Madhesi cause. Subsequently, the Madhesis also received assurances from Prime Minister G. P. Koirala in the form of a 22-point agreement with the Madhesi Janadhikar Forum, an umbrella group of Madhesi leaders from different political parties led by Upendra Yadav.
While Nepal managed to resolve most contentious issues, it could not resolve the issue of federalism. This remained a sticking point when Baburam Bhattarai dissolved the Constituent Assembly in 2012 and called for fresh elections. There was complete disagreement regarding the basis of creating federal units and their numbers. The problem persisted in the second Constituent Assembly. But since the Madhesis and Janajatis did not have adequate numbers of seats in the second CA, they depended on the UCPN-M’s support to attain their demand.
Kathmandu was rife with rumours of a post-constitution making power sharing deal between the UCPN-M and Communist Party of Nepal-United Marxist-Leninist (CPN-UML). It was therefore not surprising that Prachanda decided to abandon the causes of Madhesis and other minorities as well as the principle of consensus that guided the peace-process. The split in the UCPN-M became apparent when Baburam Bhattarai, former Prime Minister, second in command in the UCPN-M, and chairman of the CA committee on dialogue and consensus building, was not present in the ceremony where the new constitution was promulgated. His subsequent resignation from the party as well as from Parliament indicates a certain degree of disagreement within the party on the constitution.
It is true that the absence of consensus on the constitution prevented a settlement given the stance adopted by Madhesi parties and the Janajati groups. But what cannot be ignored at the same time is the fact that the Kathmandu political elites were not sincere about initiating a dialogue process to address the grievances of Madhesis and Janajatis. Ironically, the Maoists who waged a People’s war demanding an elected CA to draw up a constitution by taking into account people’s aspirations, now supports a constitution that is approved only by the majority and in the process marginalising the marginalised classes that at one point in time formed the backbone of their movement. The boundaries of the new provinces have been drawn with a view to preserving the base of the political elite dominated by bahuns and chetris. It is true that the Madhesi parties have remained hopelessly fragmented. As a result, their strength declined precipitously between the first and second Constituent Assemblies; while they held 84 seats in the first CA, it declined to only 46 seats in the second CA election. This made them politically ineffective.
Three issues are of major concern in the Constitution that has been promulgated. First, many of the highest constitutional positions are reserved for those who are citizens by descent only; naturalized citizens are ineligible to hold these posts. The fact that many Madhesis have marriage and familial ties across the border make them ineligible for these posts. Second, children of a Nepali mother married to a foreigner will not get citizenship by descent, thus perpetuating a gender bias in the constitution.
Third is the issue of the boundaries of the newly created provinces, which affects the Tharus, Limbus and the Madhesis. In June, the four major political parties including the Madheshi Janadhikar Forum (Democratic) led by Bijay Gachchedar had agreed to the 16 point formula which promised that “The Federal Democratic Republic of Nepal will have eight provinces based on five criteria of identity and four criteria of capability.” It was also decided that since the names of the provinces and demarcation of their boundaries was a contentious issue, these would be decided by a Commission. But this agreement was struck down by the single bench of the Supreme Court as contravening Articles 82 and 138 of the interim constitution, resulting in the present crisis. Thereafter, on August 10, top political leaders agreed to divide the country into six provinces in such a manner as to dilute the majority of the Madhesis and Tharus and reduce their political salience in terms of electoral politics.
While Nepal moved to a new era of democratic politics after adopting a constitution drafted by an elected CA which made Nepal a secular, federal republic, its failure to address the grievances of Madhesis and Janajatis and women’s rights make the constitution non-inclusive. Adoption of this constitution and the manner in which the provincial boundaries have been drawn only ensure that the political and electoral base of the Kathmandu based hill elites gets further entrenched.
From the outset, India had supported a consensus constitution. Prime Minister Modi while addressing Nepal’s Parliament last year had emphasised upon the need to build a consensus. Nepali political leaders assured New Delhi that they will keep in mind the interests of Janajatis, Madhesis, Dalits and women in the new constitution. Yet, these were completely ignored and the constitution was passed through a majority vote.
India’s reaction has been curt especially since it had held a series of consultations with all Nepali leaders regarding the need to adopt an inclusive constitution. Yet, Nepal’s political parties went back on the assurances that they had given to India. Even Foreign Secretary Jaishankar’s last ditch effort did not help matters with Nepal adopting the constitution by majority voting on 17 September. India has consequently not hidden its displeasure as it is concerned about the increasing polarisation in Nepali politics.
The need for building a consensus is clearly reflected in the MEA statement: “India has been strongly supportive of constitution making in Nepal. We would like its completion to be an occasion for joy and satisfaction, not agitation and violence. We hope that Nepal’s political leaders will display the necessary flexibility and maturity at this crucial time to ensure a durable and resilient Constitution that has broad-based acceptance.”
Nepal has decided to send a Special Envoy to brief the Indian leadership about the constitution and the latest security situation. In the meanwhile, attempts are being made to initiate talks with Madhesi and Janajati leaders. Without a concrete road map and without disbanding the law and order approach to the Madhesi demand, the offer of talks is unlikely to yield result. The continuing violence by agitating parties in the Terai has created a situation where Indian trucks carrying goods and oil are reluctant to venture into Nepal.2. Economic hardship due to shortage of fuel and goods would have a long term impact on India-Nepal relations.
Given the fact that India shares an open border with Nepal, the consequences of violence and instability in the Terai would have consequences for India’s security and may threaten the security of Indian businessmen and traders who are engaged in business in Nepal. Moreover, cross border ethnic linkages and familial ties makes India an interested party. While Nepali political leaders blame India and Indian ‘interference’ and try to arouse anti-Indianism, the same political leaders use New Delhi to further their political ambitions and do not hesitate to take New Delhi’s help to entrench themselves in power. If Nepal does not want India’s involvement, it needs to not only ensure that developments in the Terai do not have a spill over effect but also stop courting the Indian establishment to gain political power.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India
1. Madhesis are dominant in the following 20 districts bordering India: Banke, Bara, Bardiya, Chitwan, Dang, Dhanusa, Jhapa, Kailali, Kanchanpur, Kapilavastu, Mohattari, Morang, Nawalparasi, Parsa, Rautahat, Rupandehi, Saptari, Sarlahi, Siraha and Sunsari.
2. The MEA in a statement on 21 September said, “Our freight companies and transporters have also voiced complaints about the difficulties they are facing in movement within Nepal and their security concerns, due to the prevailing unrest.” http://www.mea.gov.in/press-releases.htm?dtl/25825/Statement_on_the_situation_in_Nepal
Originally published by Institute for Defence Studies and Analyses (www.idsa.in) at http://www.idsa.in/idsacomments/NewNepalOldPolitics_sspattanaik_280915.html