Prashant Jha: Nepal’s Contested Constitution

Nepal’s Contested Constitution Deepens Crisis at Home and With India
Prashant Jha Thursday, Nov. 5, 2015

Rather than resolve its ongoing political crisis, Nepal’s new constitution has produced a polarized internal landscape and complicated relations with its most important neighbor, India. The product of a peace process that brought insurgent Maoist rebels into mainstream politics, the new constitution was promulgated on Sept. 20, institutionalizing a federal, democratic and secular republic.

But it failed in its core task of bringing the country’s various ethnicities—there are over 100—and social groups together. Many social groups, especially the Madhesis and Tharus of southern Nepal, are deeply unhappy with its provisions on inclusion, political representation, federalism and citizenship, and have been leading a mass movement against it for more than two and a half months, leaving the country paralyzed.

India is also upset at the crisis at its doorstep, and is putting pressure on Nepal’s political leadership to make amends. But

in Kathmandu, the protest movement against the constitution is being dismissed as an Indian-sponsored plot, while ultra-nationalist sentiments run high and the government’s willingness to correct course is unclear.

At the root of the divisions is the fact that

the country’s political structure has never reflected the remarkable ethnic and social diversity of Nepal, producing deep inequality.

Power has been monopolized by the Hindu upper castes based in the mid-hills of Nepal who, although they constitute less than one-third of the country’s population, dominate politics, bureaucracy, the army and even civil society and media. Madhesis, who live in the southern plains region known as the Terai, have historically not been treated as equal citizens and are even viewed as a “fifth column” due to their extensive ethnic, linguistic and kinship ties across the border with India. Janjatis—the indigenous peoples of both the hills and plains—have historically been subsumed by a centralized state, with their culture and languages marginalized, and remain underrepresented in politics. Women, meanwhile, have lived under a traditional patriarchal society, with gender discrimination institutionalized in law. At the bottom of the hierarchy are the Dalits, the “untouchable” caste who are stripped of dignity, opportunity and any participation in the mainstream.

Nepal’s formal democracy of the 1990s, which followed 30 years of an autocratic monarchy, did not adequately address these inequities, which led to the outbreak of civil war from 1996 to 2006. Maoist insurgents mobilized excluded segments of society, waged guerrilla warfare and made elections for a constituent assembly and the abolition of the existing monarchy their central plank.

In 2006, the Maoists agreed to end the violence and participate in mainstream democratic politics; the older parties dropped their support for a constitutional monarchy and decided to embrace the agenda of restructuring the state through an elected constituent assembly, opening the doors to political change.

There were two clear fault lines in this period: the battle between monarchy and democracy, and the battle between Maoists and non-Maoists. But there was a third, less-visible fault line: Nepal would either remain a non-inclusive state where political power was concentrated in the hands of a few; or it would become inclusive, multicultural and federal in character, with political power distributed among its social groups, while taking steps toward an egalitarian order. This was the question the constituent assembly had to resolve, but which it repeatedly failed to, despite several missed deadlines.

But after the devastating earthquake in April, political equations changed. Top political leaders realized their failure to adequately respond to the humanitarian crisis had damaged their credibility. A breakthrough on the constitutional impasse, which had lasted too long, became necessary. The tragedy also offered a pretext to others to drop some of their demands and shift tracks. The Maoists, who had until then sided with the marginalized social groups, agreed to support a draft constitution fielded by the two other top parties—Nepali Congress and the Communist Party of Nepal (Unified Marxist Leninist)—making Nepal a federal democratic republic with a parliamentary system. It would also be secular, albeit with a pronounced Hindu tilt.

The resulting document alienated the ethnic Madhesis in the Terai, as their share of seats in both houses of parliament would be reduced due to the formulas used to determine representation. The new constitution also dropped a key provision from the interim constitution of 2007 for “proportionate inclusion” of Madhesis and other historically marginalized ethnic groups in state organs, while further diluting the principle of quotas by adding a host of other groups, including dominant upper castes, as eligible for representation.

Meanwhile, the constitution’s citizenship clauses require the offspring of mixed marriages to get Nepali citizenship by naturalization only when the father is a foreigner. In turn,

naturalized citizens are not eligible for a range of public positions, including president, prime minister, heads of security agencies, chief minister and more. In addition to violating gender equality, the provision appears driven by the fear—many see it as paranoia—of Indians marrying into Nepal and taking over key positions, given the extent of cross-border marriages in the Terai.

Adding to opposition to the constitution was its gerrymandering of provincial demarcations, which favors the hill groups that have long dominated Nepali politics.

Terai groups wanted the country’s 20 plains districts divided into two provinces, one in the east dominated by Madhesis and the other in the west dominated by Tharus, an indigenous group.

Instead, while leaving eight districts in a plains province, the constituent assembly merged 12 districts with various hills provinces. The result was an eastern Madhesh province deprived of resources, and the Tharus reduced to a political minority in western Nepal.

The decision to push the constitution through despite protests against it, with police then killing and harassing demonstrators, only added to the unrest. The constitution’s technical legitimacy cannot be contested. After all, an elected constituent assembly by an overwhelming majority passed it. But its political legitimacy is under grave threat, given the climate in which it was passed.

To make matters worse, it has added to tensions with India, which had consistently urged the Nepali leadership to strive for the broadest possible agreement, taking into account the grievances of the dissenting forces. After the constitution passed, Madhesi leaders in Nepal stepped up their protests and declared they would block the India-Nepal border, disrupting the flow of goods to pressure Kathmandu to address their grievances.

The blockade—which Nepal claims has been imposed by India, and India claims is the result of the insecurity within Nepali territory—has prevented fuel and other essential commodities from entering Nepal.

The movement in the Terai against the constitution reflects genuine anger, and if its moderate demands are not addressed, there could be further radicalization and even a secessionist movement. That is a scenario New Delhi wants to avoid at all costs. Despite India’s temporary unpopularity in Kathmandu, it is nudging Nepal’s leadership to make the difficult decisions necessary to accommodate the opposition.

Nepal managed its transition from an autocratic monarchy and civil war to peace and a republic. The constitution represents the culmination of this process. But it holds the seeds of discord within it. Before it can be enforced, it has to be amended.

Prashant Jha is an associate editor with Hindustan Times in New Delhi. He is also the author of “Battles of The New Republic: A Contemporary History of Nepal.”