Nepal’s Otherwise Admirable Constitution is Steeped in Inequities

Nepal’s constitution was signed by President Baran Yadav on September 20, 2015A ‘new’ Nepal was to value secularism, create a federal structure and recognise the rights of womenOf the many features of the interim constitution, secularism has been retainedIn an anti-Madhesi stance, the constitution will not allow proportionate representation in future electionsIndia’s advice that the constitution should be inclusive has been ignoredOn Sunday, September 20, 2015, President Ram Baran Yadav signed the new constitution of Nepal, approved by the constituent assembly a few days earlier. It was a moment for great joy and celebration.For the first time in Nepal’s history, its people had given themselves a constitution, the flowering of a dream whose seeds were sown way back in 1950. Half-a-dozen previous constitutions were either handed down by the palace or were the result of sorry compromises. The last one, the interim constitution of 2007, was formulated by the existing parliament to provide a framework of governance following the revolutionary changes brought about by the 2006 jana andolan II.The constituent assembly, elected in 2008 to frame a constitution in two years, failed to do so in four when Nepal lapsed into a twilight zone, leading to a caretaker government. Another assembly, doubling as parliament, finally produced the new constitution.Constitution-makingThe background to recent constitution-making must be recalled briefly. A Maoist insurgency from 1996 onwards crippled the nation and cost over 15,000 lives. Maoist excesses were more than matched by police and army brutality.Eventually, after the royal takeover in February 2005, widespread agitation culminated in the effective dismantling of the monarchy in April 2006, which was legally terminated two years later – the people had come into their own.Their demands, simmering for decades, were now expected to be met through the agency of a new constitution. Essentially, this was to ensure that the institutional marginalisation and exploitation of large sections of the population would cease. A long-awaited ‘new’ Nepal was to value secularism, create a federal structure where different groups would have a sense of ownership and, among others, a patriarchial ethos would recognise the rights of women. A Pandora’s box of expectations was opened, particularly in view of the waves of multiple ethnic claims, and the first constituent assembly floundered on its shoals.Welcome FeaturesAs now promulgated, the Nepali constitution has many welcome features. A republican state has been reaffirmed. The government would be parliamentary in nature, with members elected through a mixture of direct and proportional elections. Despite some stout opposition, ‘secularism’ of the interim constitution has been retained.The clarification that the preservation of ‘sanatan dharma’ would receive special attention is defensive and odd, as the vibrant practice of Hinduism in Nepal does not seem to require any constitutional props. Federalism would involve the creation of seven states. There has been an attempt to clarify issues of citizenship.Seen in the context of the tunnel of despair to which the Nepali people have been consigned over the past two decades in particular, the constitution should have been a welcome document, attempting to address many national issues.In reality, sadly, there has been neither spontaneous joy nor celebration. Southern Nepal, the terai region, has been shut down by protests for over four weeks and the death toll, including policemen and civilians, exceeds 40. Essential supplies from India have slowed greatly as roads remain blocked, with the possibility of even stronger agitation. India’s reaction to the constitution has been chilly. Nor has the UN extended congratulations, even as it noted the police excesses in the terai.The Devil is in the DetailThe constitution has provided a broad infrastructure with many admirable qualities. It is in the details that it has floundered. The delineation of the proposed new states has sought to perpetuate domination by the hills. The Tharus, a sizeable minority in western Nepal, have for long been treated as bonded labour, their land taken over by settlers from the hills.Their acknowledged demand for a say in one of the proposed new provinces has been brushed aside and their future consigned to a hill-dominated province. It was Kailali in a Tharu area that provided the flash point of the present agitation a month ago when eight policemen were killed.Most of terai has now been virtually shut down for over a month by agitating Madhesis. Ever since the terai was returned by the British to Nepal 150 years ago, the Madhesis, wearing the dhoti and speaking Hindi, have been treated with disdain by the ruling hill elite of Kathmandu, requiring, as late as the 60s, permits to even visit the capital.Anti-Madhesi StanceAs I saw first hand, the engineered anti-Indian Hrithik Roshan riots of 2000, equally targeted the Madhesis. Though they constitute some 35% of Nepal’s population, it is in only one of the seven states that they have been allowed a majority. And the proposed electoral districts would not permit this large section of Nepal’s citizenry proportionate representation in future elections.Baburam Bhattarai, eminent leader of the Maoist party and former prime minister, has distanced himself from the celebrations on the constitution, commenting, “Arrogance of the ones who ruled for 240 years regarding the Madhesi demands is uncalled for.”Besides these anomalies, the constitution has substantially watered down the affirmative action for disadvantaged groups promised in the interim constitution. Rules on citizenship have tilted against women. As one Nepali commentator has acidly commented, “It is perhaps unreasonable to expect a bunch of conservative Brahmin men schooled in patriarchy and steeped in ultra-nationalism to suddenly shed their bias towards women and Madhesis.”India’s Advice IgnoredIndia’s consistent sage advice that the constitution should be inclusive where all stakeholders may have a sense of ownership has been ignored in its final framing. The open border – and the many cross-border familial links with Bihar and UP – does not leave India the option of being a silent spectator.At present, one must hope that the major political parties in the government of Nepal will take the necessary steps to meet legitimate demands and assuage hurt feelings in the southern half of the country which continues to be in turmoil.(The writer, a former Indian ambassador to Nepal, is the author of ‘Magic of Nepal’)

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Nepal’s Otherwise Admirable Constitution is Steeped in Inequities

Nepal’s new constitution has many welcome features. However, it adopts an anti-Madhesi stance.

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Topics: India Constitution Nepal