The promulgation of the new Constitution leaves half of Nepal in tumultuous protest, with large sections of the population feeling it is not inclusive and has not taken on board their concerns. By DEB MUKHARJI
On Sunday, September 20, 2015, President Ram Baran Yadav promulgated the new Constitution of Nepal, replacing the interim Constitution passed by the country’s parliament in 2007. It was the culmination of a quest that began 65 years ago for the people to give themselves a Constitution.
Since 1948 there have been six constitutions of Nepal; the first four were handed down by the Ranas, or the Palace. There was a whiff of fresh air in the politics of Nepal after the end of the Rana oligarchy, until it was stifled by King Mahendra with his dismissal of the government and the imposition of the 1962 Constitution banning political parties and instituting “panchayati raj” under his sole guidance and control. It had taken 30 years of persistent struggle, led by the Nepali Congress, before a jana andolan I [people’s movement] led to the 1990 Constitution. It was a negotiated Constitution between the political parties and the Palace. Though providing a welcome change from panchayati raj, it left loopholes that were to be used by King Gyanendra to attempt a return to absolute monarchy by his royal coup of February 2005. The revolution attending jana andolan IIof April 2006 was to result in the termination of the monarchy. In order to provide a framework for governance, the parliament, which was recalled from political exile, passed the interim Constitution of 2007.
The interim Constitution was a remarkable, progressive document reflecting the spirit of the times. It presaged a secular republic, with affirmative action assured for large sections of the populace which had remained outside the radar of governance since the formation of the state in the middle of the 18th century. A Constituent Assembly, elected in 2008, was to formulate Nepal’s lasting Constitution within two years. It failed to do so in four years, amid frequent changes of government and the inability of the political leadership to forge a consensus. It is likely that the mainstream political parties, the Nepali Congress and the Communist Party of Nepal (United Marxist Leninist), had been shocked by their rejection at the elections, became fearful of the Maoists and were unwilling to move forward. Neither did the Maoists encourage confidence with their occasional comments on forging a “People’s Republic”. The activities of the Youth Communist League remained disturbing. For their own reasons, all political parties were responsible for the years wasted in infructuous wrangling over the future of Maoist combatants as they jockeyed for power.
After a period of a caretaker government, a fresh Constituent Assembly-cum-parliament was elected in 2013, with the majority now tilting decisively towards the traditional older parties at the expense of the Maoists and the Madhesi parties. September 20, 2015, saw the culmination of their efforts. King Tribhuvan’s vision of 1951 as he returned from India to take over the reins of government from the Ranas, that “Hereafter, our subjects shall be governed by a democratic Constitution to be framed by a Constituent Assembly elected by the people”, had materialised after over six decades of, often painful, struggle.
Burden of expectations
The Constitution of Nepal was being written on a clean slate but carrying the burden of many expectations. The framers of the Constitution had to not only contend with issues of principles and visions for the future as, for example, seen in the edifice of the Indian Constitution but also to take into serious account the simmering anger among the discriminated and the disadvantaged, which had already found acknowledgement in the interim Constitution and parallel agreements. Nepal had been undergoing multiple revolutions simultaneously. There had been the end of a monarchy which, besides the divinity attributed to it, the people had been taught to consider as not only representing but subsuming the state. A nation of great diversities identified with the person of the monarch had to find a new basis for nationhood. A feudal order that flowed from the Palace and inculcated attitudes of subservience which lasted over two centuries had given way to an explosion of long-suppressed aspirations. The attenuated democracy achieved in 1990 was sought to be converted to a system that may truly reflect the wishes of the people. Nepal was leapfrogging centuries as it tried to emerge from a feudal past to a modern state. Framing a Constitution acknowledging, balancing and endorsing a future for a “new” transformed Nepal was truly a Himalayan challenge for the new republic resting in the lap of the Himalayas.
Besides, despite the provisions of the interim Constitution, there was strong rearguard action by elements trying to return Nepal to being a “Hindu” state. Few noticed that though comprising largely most devout Hindus, Nepal had officially become a “Hindu” state only in 1962 under the Constitution handed down by King Mahendra, clearly in an effort to fortify his position against the winds of democratic change as not only the symbol of the nation but also the defender of the faith.
There were other issues to be addressed, including the crucial one of the nature of government. Some felt that with the departure of the monarchy, a strong presidential system with a central focus of command and control may be desirable. As the most visible face among Nepali politicians at the time, Prachanda may have considered himself for the job. As promulgated now, 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 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 distinctly odd as the vibrant practice of Hinduism in Nepal would not seem to require any constitutional props. This is clearly a political sop to the proponents of a “Hindu” state in Nepal (including like-minded people south of the border), even if the judiciary may have to eventually adjudicate on possible contradictions. Federalism would involve the creation of seven States. There has been an attempt to clarify issues of citizenship.
Tumultuous protest
The promulgation of the Constitution after decades of struggle should have been a matter of universal celebration. Unfortunately, this has not been so, with half the country in tumultuous protest.
Even as the basic structure of the new Constitution has commendable elements, it has failed to meet some crucial demands from sizeable sections of the population and is seen to endorse the status quo in the exercise of power. The triumphalist celebration among some people is balanced by dismay and rejection by substantial sections of the population. Perceptions are no less important than reality and it is widely seen as the entrenched privileged classes, the Bahuns and the Chhatris, attempting to perpetuate their dominance. Baburam Bhattarai, the chief ideologue of the Maoists (now the Unified Communist Party of Nepal (Maoist), or UCPN–M) and a former Prime Minister, has resigned from the party expressing his support for Madhesi demands. “Arrogance of the ones who ruled for 240 years regarding the Madhesi demands is uncalled for,” he commented.
The Madhesi demands, which have spread like brushfire across the terai and brought it to a standstill, are not the only issues at stake. With an eye allegedly on ensuring that children of women from the terai married to Indians cannot pass on Nepali citizenship to their offspring, a distinction has been made; men can do so. It is to be noted that until the 1990s, such discrimination between men and women married to foreigners with regard to their offspring existed in Indian laws. But this is not acceptable at this point of time when a new Constitution is being framed, particularly as it is seen as targeting Madhesi women. It is also stipulated that children of mixed marriages cannot aspire to high office.
Among those who had been most strident in years past were the Janjatis, the tribal people that were brought into the Hindu fold by the Muluki Ain of the Ranas and treated as members at the lowest rungs. They formed much of the basic support to the Maoists, who had espoused their cause as the major parties at the time remained studiously indifferent after the promulgation of the 1990 Constitution. It would appear that the affirmative action promised to them in the interim constitution has been seriously compromised. Their reaction is yet to fully manifest itself.
Those who suffer the most from the provisions of the Constitution are the Tharus. Comprising nearly 7 per cent of the population, the Tharus are an indigenous community at home with nature and in the forests. They have been in western Nepal for centuries. Ruthlessly exploited, they lost their land to settlers from the hills in the last century, as the lands became habitable with the eradication of malaria, and became bonded labourers under the infamous kamaiya system, which was legally abolished only in 2000. It was expected that under the new Constitution they would have a province they could call their own. This has not happened. It is noteworthy that on the question of injustice to the Tharus there is near unanimity among Nepali commentators, whatever their differences otherwise are.
Self-assertive Madhes
A major development in Nepal’s polity since jana andolan II has been the rise of an increasingly self-assertive Madhes, or the terai areas lying between the hills and the Gangetic plains. The area was annexed into the kingdom by the Gorkhas in their first flush of expansion. Much of it was ceded to the East India Company in 1816 at the Treaty of Sagauli and returned after 1857 as a token of gratitude following assistance rendered by the Ranas in suppressing the uprising. The dhoti-wearing Madhesi, speaking Hindi or its dialects and often with family connections across the border in Bihar or Uttar Pradesh, has never been accepted by the hill-centric ruling elite of Kathmandu as equal citizens. The famous geographer and anthropologist Harka Gurung is said to have remarked that Madhes had to be reconciled to its status as conquered territory. Given these attitudes, it is not surprising that Madhesis were targeted as Indians during the Hrithik Roshan riots of December 2000. The Madhesi still recalls that in living memory he was obliged to carry identity documents for visiting the capital.
Despite constituting over 30 per cent of the population and contributing majorly to the nation’s revenues, and their region being its granary as well, Madhesis continued to face discrimination in employment in government services, including the army, and with regard to something as fundamental as citizenship, and in terms of investments in their region. Following jana andolan II, Madhesis, who had earlier supported the Maoists, felt that their interests were not being addressed. A violent agitation followed in January 2007, which virtually cut off Nepal from the rest of South Asia. It was described by a noted scholar as “an unprecedented event parallel to jana andolan II....It was a landmark event in bringing out regional-based ethno-nationalism as one of the prominent issues in the national discourse on restructuring the Nepali state” (Krishna Hachchetu: Madhesi Nationalism and Restructuring the Nepali State, 2007).
In the more direct words of a Nepali journalist some years later: “Here is what the Madhesis told the existing Nepali state: change or perish. In specific terms, this meant political representation, substantive inclusion, reframing symbols of nationhood, and treating citizens who wore dhoti, did not know how to speak Nepali, and had kinship links across the border, with dignity and not scorn. If the Kathmandu establishment refused to do so, it would cost the state its legitimacy and erode political authority among one-third of its people. Despite hiccups, resistance by sections in the capital, and the entrenched social prejudices, the Madhes has won the battle politically and intellectually” (Prashant Jha). However, as dictated by the new Constitution, the victory was not to produce constitutional dividends.
Madhes is not a uniform entity. There are differences in caste and religion, with, at times, different perceptions of self-interest. Madhesi politics has become severely fractured, with some splinter groups appearing to satisfy personal agendas rather than principles or objectives. The Nepali Congress, which earlier had a strong foothold in the region, no longer does so. The Maoists no longer enthuse. But there are bonds of common interest, and there are no differences in the conviction that Madhesis deserve a place in the Nepali sun.
The new Constitution stipulates that 12 of the 20 districts of Madhes will be attached to and become appendages of hill districts. Even more tellingly, the delineation of constituencies has ensured that the representation of Madhesis in direct elections will fall from a legitimate 83 to 63, effectively disenfranchising large sections of people and making territoriality, and not population, as the decisive factor in delineation. This is a departure from the specific written guarantees given by the central government led by G.P. Koirala in 2008 and the promises held out by the interim Constitution. This reneging on firm commitments is, understandably, unacceptable to Madhesis. As events unfolded, it was becoming clear that the coalition partners in government, the Nepali Congress and the CPN(UML), with the support of the UCPN (M) under Prachanda, were proceeding to vote on a Constitution with the majority they commanded in the Assembly. Madhes reacted with a virtual hartal across the territory, which by the beginning of October had lasted over six weeks. Major violence flared at Kailali, a Tharu area in western Nepal, in which seven policemen were killed on August 23; the perpetrators are believed to be former Maoist cadres. In a degree of mobilisation not seen even in the days of the Maoist insurgency, half of Nepal’s army was sent down to terai areas to deal with the protests. Until now 40 civilians have been killed in the terai, including children and aged men. Even the United Nations has advised restraint and negotiation. With the promulgation of the Constitution, there was further escalation of unrest, with the agitating parties blocking entry points from India in an attempt to cut off essential supplies. A stalemate continues, though the army has now been withdrawn.
India’s response
India, which had been host to Nepali political parties earlier—the 12-point agreement between the then seven political parties in November 2005 to usher in democracy was signed in Delhi—remained cool, if not chilly, to the promulgation of the Constitution, merely noting the event and suggesting that existing differences be resolved peacefully to enable broad-based ownership. Subsequent statements were on similar lines and suggesting that the continued violence in the terai was a matter of anxiety to Indian transporters taking goods to Nepal. The Indian Foreign Secretary had visited Kathmandu in mid-September even as the Constitution was receiving the approval of the members of the Assembly to suggest that the document be inclusive and take on board the concerns of all segments.
The promulgation of the Constitution increased the tempo of the Madhesi protests in the terai, leading to seriously disturbed conditions across the border checkpoints. The passage of vehicles carrying fuel and other supplies to Nepal from India came down to a trickle at various points and stopped altogether at some others. By the beginning of October, Kathmandu remained affected by a shortage of fuel, including aviation fuel. Shortages of essential supplies were felt widely. The situation has been portrayed to the people by the ultranationalists and many in the political classes as the consequences of an unofficial Indian “blockade”, similar to the ‘one imposed by India in 1989. There are calls to open up more routes to China as an alternative to imports from India. India has continued to maintain that it is difficult for transport vehicles to move freely because of the extremely disturbed conditions across the border and the concerns among transporters. It has denied any move to curtail the movement of vehicles beyond these reasons.
The political issues in Nepal will hopefully be resolved with some degree of accommodation displayed by all sides, notably the government, even though the contours seem at present hazy. But there are some negatives which may be carried forward with yet unforeseeable consequences. What was, and has been, an issue of providing some succour to the Madhesis (and the Tharus and the Janjatis) from centuries of dispossession, largely acknowledged by the interim Constitution, is being converted by Kathmandu into an Indo-Nepal issue where the sovereignty of the latter is being displayed as being at stake. This sidestepping of the core of the problem is neither neat nor productive. As a corollary, it stokes anti-Indian sentiments among large sections of the Nepali people, the Pahadiyas, with whom India has had a long tradition of cordial relations. Even more dangerously for the future of Nepal, ethnic divides within the country are being emphasised presumably to distance the Janjatis and the Tharus from the Madhesis, with whom they share common interests. What is essentially a struggle for political rights can become unbearably ugly if it is allowed to assume an ethnic divide. The condescending, if not mildly contemptuous, attitude of many “hill” leaders towards Madhesis has an eerie resemblance to the attitude of West Pakistan towards the Bengali East Pakistan before 1971. One must earnestly hope that the analogy is not carried forward.
It needs to be noted that in the Nepali media, many have strongly demurred with the treatment meted out to the Madhesis, the Tharus, women and the Janjatis, even as there is concern about and criticism of the Indian “blockade”. And these views have often emerged from the upper castes and classes of the hills who believe in fairness and inclusiveness. The renowned author and thinker Manjushree Thapa was constrained to burn a copy of the new Constitution. A few comments from the Nepali press illustrate the range of thinking:
“The sole focus of Kathmandu on India is distracting it from the crucial issue at hand—though Delhi’s unofficial blockade has taken the attention away from the epicentre—the turmoil in the Tarai. What is often unrecognised amidst the furious rants on social media is that over the past few weeks, the Tarai unrest has grown and could even head towards a mass movement that is larger than the Madhes movement of 2008 and probably even as large as the Madhes movement of 2007. That worries us. There is a degree of rage and alienation evident in the current movement. And if not addressed in time, this could lead to negative ramifications upon the Nepali state”.—Editorial inKathmandu Post on October 1.
“One of the major hindrances to political progress in Nepal has been a majoritarian mindset. The belief that numerical strength alone is sufficient to push through a major political document is detrimental to fostering a real democratic culture…… To completely alienate them [present senior Madhesi leaders] would compel them to stand with other Madhesi actors who advocate a more radical and violent solution to the problem—to the extent of demanding the secession of the Madhes from Nepal. —Comment in Kathmandu Post on October 1.
Another negative would be the quality of relations with India.
A question often raised, even within India, is why India should be so concerned, or express itself so unequivocally, about the internal matters of another sovereign state. It needs to be noted that India’s consistent view, as repeatedly conveyed even in recent times by Prime Minister Narendra Modi, is that India wishes to see a stable and prosperous Nepal, a bouquet of different fragrant flowers, where each community has a sense of ownership of the Constitution. But why be so concerned with the outcome? It is their business, not ours. These would be valid criticisms but for the unique, one might say unusual, relations between the two countries.
It needs to be recalled and re-emphasised that an open border, free movement, intimate familial linkages, a mutually convertible currency, a treaty that permits millions of Nepali citizens to live and work freely in India, besides the tens of thousands of gorkhas who fight under the Indian flag, simply does not permit India the privilege of being indifferent to events across the border. Besides, except the Maoist insurgency (and even here, the leadership hid in private sanctuaries in India), all movements against autocratic rule in Nepal from the time of the Ranas has found people’s support from the south of the border. And whether it was Chakra Bastola spending months in Indian prison for involvement in hijacking a Nepali plane in the 1970s or intellectuals with shifting convictions soliciting Indian support against Gyanendra, Nepali activists have always used India to further their political causes.
Major political developments in Nepal, to name only the events leading to the restoration of democracy in 1990 and the 12-point agreement of 2005, have seen Nepali political and intellectual classes seeking India’s help and involvement. Besides, during the days of the insurgency, hundreds of thousands of Nepalis fled to India for security. A troubled Nepal across an open border would inevitably impact on India and, in turn, the multifaceted relationship between the two nations. India is in a difficult situation where it seems unable to influence what Nepal decides, but remains subject to the negative fallout of such decisions.
Yet, some good may emerge with regard to India-Nepal relations at the state level. Both countries should take stock and reflect on what ails these relations. Nepal may wish to ponder whether the exercise of its unquestioned sovereignty in state sponsorship of anti-Indian sentiments, and India consequently distancing itself, will help promote its national interests. As Ambassador Ranjit Rae pointed out, burning the Indian flag or effigies of the Indian Prime Minister does not resolve problems. For India, security remains the prime focus. It must assess when this stands compromised and what corrective measures are required. Difficult as this is, India must make the extra effort to see that where India’s national interests are concerned, it is able to share this centrally with Nepal and not permit bit players to confuse Nepali interlocutors. The history of Indo-Nepal relations has shown that multiple channels of (mis)communication are a recipe for misunderstanding and miscalculation.
Meanwhile, in the interests of Nepal, one must hope that reasonable and acceptable solutions are found to the current issues, so that an inclusive “new” Nepal may emerge.
Deb Mukharji is the former Ambassador to Nepal and
the author of The Magic of Nepal.
