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

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

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.