External Affairs

Most Nepalis are Not Celebrating their New Constitution. Here’s Why.

Funeral procession in Madhes for those killed in police firing. Credit: Ritesh Tripathi

Funeral procession in Madhes for those killed in police firing. Credit: Ritesh Tripathi

An ambitious warrior from the tiny Gorkha principality in the mid-mountains of Nepal founded the country with a combination of trick and treachery in the late-eighteenth century. Kathmandu has remained a hotbed of conspiracies ever since, where the ruling elite scheme against each other almost on permanent basis. With the ruler’s command as the only law, there was no way to break this vicious cycle that harmed almost everyone.

It was at the urging of Jawaharlal Nehru that the kingdom got its first statute in 1947 when Prime Minister Maharaja Padma Shamsher promulgated a constitution to confer political legitimacy upon the Rana oligarchy. The statute didn’t last. Padma was ousted in a bloodless coup soon afterwards and the country returned back into the hands of the more autocratic Ranas. It was only after the overthrow of the Ranas and the restoration of a Shah King into power in 1951 that a proper constitution was made – once again under the influence of Nehru – which sought to lead the country towards democratic rule. Perhaps to make up for the lost time, Nepal has given itself a fresh statute once every decade on an average. That must be the highest turnover rate of constitutions anywhere in the world.

The new constitution

The supreme law of the land that President Ram Baran unveiled on September 20, 2015 in a somber ceremony inside the Constituent Assembly hall is this the latest in the series. Of course, it is a much awaited document, but it merely replaces the existing statute rather than fills a constitutional vacuum. And that’s the reason the current constitution is being contested so fiercely: Its critics insist that the statute seeks to turn the clock back, specially on issues related to minority rights. Proponents of the document, however, claim that it’s the best constitution in the world.

It is possible to take a reformist view and consider the constitution to be a dynamic document where changes can be introduced in a gradual and legitimate manner. The problem with that position is the intransience of the dominant majority in Nepal that has refused to entertain voices of dissent. There is yet another reason that has made opponents of the new constitution desperate – Nepal’s experience shows that those in power never amend any constitution to address the aspirations of the marginalised. Without hitting the streets, minorities have never got their aspirations addressed in a legitimate manner. That could be one of the reasons behind the desolation of the Madhesi population in the southern plains of Nepal, where protests have continued for more than one-and-half months, and nearly four dozen people have lost their lives, including eight policemen, in a brutal crackdown by the security forces.

When the constitution was being inaugurated in Kathmandu, nearly half the population of the country was reeling under voluntary shutdowns, police prohibitory orders, and a state of curfew being enforced by the Nepal Army.

Terai-Madhes – the southern plains of Nepal – is home to over half of Nepal’s population, two-thirds of them being ethnic Madhesis who are incorrectly described as ‘people of Indian origin’ due to their family and cultural affiliations across the border.

The presence of Madhesis in the security forces of Nepal is negligible. The ethnic composition of the security forces during times of crisis is a sore point everywhere. Madhesis perceive soldiers and police personnel as oppressors rather than protectors. The security forces, on the other hand, act as if they were keeping order in occupied territories where they have no emotional involvement. Protests have turned violent in response to brutalities by law enforcement agencies and vice-versa, perpetuating a vicious circle of violence. The complete absence of politicos of the dominant majority in Terai-Madhes has further aggravated the situation.

Grievances galore

Communist Party of Nepal – United Marxist-Leninist (UML) leader K.P. Oli signing the constitution. Oli is tipped to be the consensus candidate for prime minister in the event that none of the three main parties – UML, Nepali Congress or the Maoists – win a clear majority. Credit: IANS

Communist Party of Nepal – United Marxist-Leninist (UML) leader K.P. Oli signing the constitution. Oli is tipped to be the consensus candidate for prime minister in the event that none of the three main parties – UML, Nepali Congress or the Maoists – win a clear majority. Credit: IANS

Nepal adopted parliamentary democracy and an independent judiciary in 1990 with the restoration of the multiparty system. It became a secular country after the success of the spring uprising in 2006, that sidelined the Hindu monarch from mainstream politics. Concepts of federalism, proportionate representation and proactive inclusion were incorporated into the interim statute after prolonged Madhes uprisings in 2007 and 2008 through two separate agreements signed between the-then head-of-state and the head-of-government Prime Minister Girija Prasad Koirala and Madhesbadi parties.

The monarchy was abolished and Nepal was declared a Federal Democratic Republic on May 28, 2008 with the unanimous decision of the first siting of the Constituent Assembly. All these democratic dimensions have been retained in the new constitution. What the new statute adds is the demarcation of federal boundaries. That, and the emasculation of existing provisions, have enraged different population groups in Nepal.

Women are unhappy that they have been scorned. Implementation of their rights enshrined in the interim constitution was bad enough due to antiquated laws and the patriarchal mindset of majority of bureaucrats; the new statute makes it worse by creating different classes of citizenship that will bar mothers from conferring their nationality upon children.

The Janjatis are disappointed as the new constitution has failed to recognize their community rights and delineation of federal units has discarded principles of identity and viability. It violates several agreements that the government had signed with groups such as the Tharus and other indigenous communities in the past. The creation of federal units to pacify Brahman-Kshetris of the hills – the dominant caste groups – has rubbed salt over the wounds of the marginalised.

The dalits had been promised positive discrimination as a form of reparation to end discriminatory practices of the past. The new statute has reneged on the relevant provision of the interim constitution and provided for enactment of laws to regulate such issues. With the credibility of the ruling community – the high-caste Hindus – at all time low, dalit activists are not ready to barter concrete provisions of the existing constitution with a vague promise of enacting liberal laws in the future.

The redefinition of secularism in the constitution – obligating the state to protect and promote Sanatana religious and cultural practices, retention of the Holy Cow as the national animal, and proscription of proselytisation – imply that Nepal will no longer be a equal country for religious minorities. Voices of protest from Nepalese Christians and Muslims are feeble, but their discontent isn’t hard to understand.

But there is a reason opposition to the new statute has been the fiercest in Terai-Madhes. The people there have to suffer the consequences of all these provisions in addition to enduring the indignity of being considered second-class citizens in their own homeland.

Frenzied Madhes

With new statutory provisions that seek to conflate citizenship rights with the nationality of the person, the rights of Madhesis who marry across the border will be severely jeopardised. The voices of the women protestors in Kathmandu thus resonate in Terai-Madhes that dread the creation of separate ancestral, naturalised and acquired categories of citizenship. Bearers of the last category of citizenship will be barred from holding several high public posts.

Creation of one, or at most two, provinces in Terai-Madhes was promised to ensure that Madhesis and Tharus will be empowered through a sizable presence in major units of the federation. The constitutionally-mandated fragmentation of Madhes implies that they shall forever be at the mercy of the dominant community from hills and mountains. Had the record of the ruling community been inspiring, such fears might have seemed unfounded. But when raised by communities historically externalised as “the other” in the national discourse, their concerns begin to appear fully justifiable.

The need for proportionate representation in the legislature through delineation of population-based constituencies should have been a self-evident element of a democratic constitution. Fearful of Madhesis getting their due share, which may challenge the hegemony of the dominant community, the new constitution puts geographic representation as the main element of formation of parliament. Such blatantly communal features are unlikely to go unchallenged in Terai-Madhes.

Proportionate inclusion in employment is yet another feature that had made the interim statute of Nepal a progressive document. These provisions have been retained in name, but their effectiveness severely curtailed. For example, the most dominant community has been added to the list of intended beneficiaries – thus reducing opportunities for minorities. Besides, laws will have to be enacted for implementation, making the future of these promises uncertain, and the possibility of making the security forces inclusive through group recruitments from ‘externalised’ communities such as Madhesis has been closed. In this manner, the assertion that the new constitution is regressive in comparison to the interim statute is perhaps correct.

Little wonder, most Madhesi politicos and activists have refused to own it. Even lawmakers from ruling party representing constituencies in Terai-Madhesh signed on the dotted lines due to party whips but complain bitterly about it in private – fueling protests on the ground.

This is where New Delhi comes into the picture. Several times in the past, Indian interlocutors have acted as agents of pacification to cool down protests in Terai-Madhes with third-party guarantees of agreements signed with the government. India is now discovering that its role is no longer recognised, let alone valued. This has further complicated the constitutional wrangle. Perhaps it will take a while for everyone to realize that such pointless contests end up harming everyone in the end. Meanwhile, the unrest in Madhes continues unabated as the ruling regime rejoices in Kathmandu over its success in promulgating a contested constitution.

C.K. Lal is a journalist and political commentator from Nepal

Note: This article has been edited to note the number of policemen killed in the ongoing protests is eight, and not two as was stated earlier.

  • Nerdy

    “…founded the country with a combination of trick and treachery…”
    And East India Company founded modern India with a combination of goodwill and generosity?
    It’s not the first time that Mr. Lal has used derogatory terms to demean the founding of modern Nepal and thereby invalidate the historical realities of the country.
    It is easier to Balkanize a multiethnic society by flaring communal hatred and the sense of historical injustice. You can always find someone around you to blame for the wrongs of the past.
    To be irresponsible like Robert Mugabe and prolong the conflict or to be responsible like Nelson Mandela and move ahead for reconciliation are the choices we have ahead.
    Community-bashing revisionism is not an answer. Nor is India’s meddling in Nepal’s internal affairs in favor one community against another.

  • Ujjwal Satyal

    Mr. Lal could have put the words less metaphorically and have better clarified like this, Unlike the duty of India to protect Tamils in Sri-lanka, Bengolis in Bangladesh, it is now time to enlighten the rustic mountain people through the nationalist immigrants and Patriotic Naturalized Citizens. Isn’t it ?

  • Roshan Koirala

    It is highly objectionable that Mr Lal ignores the downsides of a fully population proportional representation such that examples of such a provision are zero in the world, no less India. Your analysis is way too Madhesi-tilted-or is it India-tilted?- to be accepted by analytical Nepalese.

    • namah

      isn’t house of rep (USA) proportional to population? i know the senate (2/state) balances it a bit. we could have mixed system here as well? your thoughts?

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  • global pc

    we do not want to handover madhes to India, and madhesi people do take note that we all are nepali first then only madhesi or pahadi or himali. do not let others take advantage of our internal differences, lets unite

  • gurutashishenga

    -THE 601 CA ASSEMBLY was
    specifically constituted for the purpose of making the constitution, of which
    240 members were elected thro general election of 2013 and balance 335 seats
    ascertained thro proportional represention based on this election results and
    remaining 26 on reserved basis. It is therefore fair to say that the CA fairly
    represented all cross section of society.of Nepal including mades and tharu.
    Before voting on the constitution the entire nation was asked to give feedback
    on the final draft of the constitution.For this purpose CA members visited
    different parts of the country also feedback could be submitted thro e mail. In
    the voting of the constitution, of the 601 members 532 voted in favor of the
    constitution,65 abstained and 25 voted against. 532 votes in favor were cast by
    110 of 122 CA members elected from tarai mades areas. Readers therefore can
    decide whether the constitution
    is owned by the whole the country or not and whether the process was democratic
    and inclusive or not.

    -Madesis are not socially
    marginalized in Nepal. They hold the post of president, vice president and
    ministers and have special reserved quota in govt jobs. Madesi areas have the
    industrial and agricultural resources of the nation.It is the pahadis therefore
    who r marginalized devoid of all resources and govt largess most of whom go
    abroad seeking jobs.

    mades movement is lead by a handful of unscrupulous ethnic leaders in a bid to
    comeback to power. In the name of politics they have committed to most
    atrocious of crimes and subjected the madesis by deception to the risk of
    injuries n killings n wanton destruction of private n public property. Unarmed
    SSP n 7 other policemen were speared, burnt n bludgeoned to death, one dragged out
    of ambulance n lynched to death, pitched battle were entered into police
    escorting trucks in crowed market place intentionally to have martyrs of
    children and women to shock n awe and gain public sympathy n defame police n
    the govt.Rs50 lacs was offered to the people to become martyrs n rs20 offered
    to boys to stone buses, goods laden trucks were attacked and the poor
    encouraged to rob so that they are exposed to police actions.

    INDIAN GOVT with its own agenda overstepped the limits of diplomacy, bypassed
    Nepal govt and hobnobbed with a few unscrupulous bihari nepalis to begin this
    so called madesi andolan n bears the worst form of bihari goonda raj. Its
    blatant support has made this movement beyond the powers of govt of Nepal to
    control. Now to further destabilize Nepal it has started economic blockade
    blaming the very movement it has created as disrupting its truck movement. However,
    such actions have made India loose its staunchest ally and give windfall gift
    to china.