By Amit Kumar Jha
“A good constitution is infinitely better than the best despot”. Thomas B Macaulay
Nepal, a tiny Himalayan state, has succeeded in ending seven year long political deadlock by adopting a new constitution on 20th of September, 2015. It is seventh constitution in 67 year. The new constitution is supported by main political parties – Nepali Congress, CPN-UML and UCPN-Maoist. At the same time, the voting was also boycotted by small opposition parties from Terai region; Even though 507 out of 601 members of Constituent Assembly (CA) voted in favour, whereas 25 members of Rashtriya Prajatantra Party voted against along with 60 Madhesi based political parties who boycotted the entire process.
However, it was a watershed moment in the 239 year old history of Nepal, which has witnessed Oligarchy, Monarchy and unstable Democracy in all these years. Although, last two decades have been a roller coaster ride for Nepal’s quest for democracy. A decade long civil war ended in 2006 after a peace deal signed between government and Maoist group. It was the same year Nepal declared itself a secular state. But, the work on the new constitution began in 2008 when a CA was elected after the abolishment of the monarchy, but it could not finish its task despite four extensions. Subsequently, a second CA was elected in 2013 which deliberated the draft constitution for over two years.
New constitution and provisions
The new constitution embraces the ideals of pluralism, multi-ethnic, multi-lingual, multi-religious, multi-cultural and federalism. It has 37 divisions, 304 articles and seven annexes. It divides the entire country in the seven provinces that will be finalized by a high-level commission within a year. The preamble envisages establishment of sustainable peace, good governance, development and prosperity in a federal democratic republic.
A forward looking constitution must have provisions for the amendment. And the procedure of amendment is laid down so that the needs and requirement of the future generation can be incorporated peacefully. A future Parliament may, by a two-thirds majority, change in part or whole, the federal, secular character of the republic.
Nepal has accepted presidential form of government. All executive power shall be vested in the cabinet that will be headed by prez. Parliament will be bicameral, with a House of Representatives – 165 members of which will be elected by the first past the post system, and 110 by the system of proportional representation – a third of whose members shall be women, and a National assembly of 59 members.
Transition and Madhesi problem
However, the transition from Hindu monarchy to secular democracy has been peaceful by and large except few protests from ethnic minorities. The ethnic minorities – Madhesi and Tharu expressed their dissatisfaction over some provisions of the new constitution.
Their claim is that the new federal structure leaves them under represented. New constitution, however, divides Nepal into seven provinces but that hasn’t been based on the provisions of interim constitution. According to article 63 (3) of the Interim Constitution – electoral constituencies based on population, geography and special characteristics, and in the case of Madhes on the basis of percentage of population. So, under this provision, Madhes, with more than 50 per cent of the population, got 50 per cent of seats in Parliament i.e. 83 out 165 electoral constituencies. But the latter part of the provision, related to Madhesi, has been dropped in the new constitution and that took them to streets of Nepal.
In addition to this, they are dissatisfied with citizenship provision in the new constitution. Citizenship clause discriminates against women. The new clause states that woman marrying to foreigners and the child born out of the marriage will not have Nepal’s citizenship status by default. The fear is that this provision of the new constitution left women a second class citizen in her own country. There are other provisions of the new constitution which too don’t represent Madhesi and their concern and therefore, they want their demand to be reinstated.
India and China: Competing and conflicting interest in Nepal
Sensing the gravity of the situation and spillover impact of Madhesi protest in bordering Indian state (Bihar and U P), New Delhi has placed a list of seven amendments to Nepali leadership. Although, these amendments are primarily related to Madhesi’s demand which revolves around articles mainly Article 84 (electoral constituencies), Article 42, Article 283 (criteria for the higher constitutional post), Article 86 (composition of national assembly), Article 281 (delineation of electoral constituencies), Article 11(6) – acquisition of naturalistic citizenship. New Delhi wants Nepal to address Madhesi’s concerns so that their rightful representation can be ensured in the modern Nepal.
Geographically, Nepal is sandwiched between the two Asian giants India and China. Diplomatically, it has been struggling to balance their competitive influence that has emerged in the recent past. Beijing, however, is trying hard to get its foot set in Nepal and to an extent it has managed to do so. The huge inflow of Chinese aid and investment in infrastructure and other sectors of economy is an example of growing Chinese presence in Nepal.
In order to reduce the reduce Nepal’s economic dependence over India, Nepalese political part has been included as a dialogue partner in SCO, a china and Russia led regional security organization. It is worth mentioning that India and Pakistan are yet to get the SCO membership ticket until 2016.
Beijing wants to reduce New Delhi’s influence in Nepal at all levels. And therefore, Beijing has long term strategy to fill in the vacuum created by India. As per reports, Beijing plans to utilize the porous border between India and Nepal for accessing Indian market. For example, It is also said that, China, with its cheap product, wants to access market of Indian state bordering with Nepal and through it rest of the country. So, India needs to be cautious because India and Nepal have porous border and volume of informal trade is higher than the formal.
In other attempts to lower New Delhi influence, Beijing is pushing to displace India as the epicenter of Buddhism by promoting Nepal’s Lumbini as a Buddhist pilgrimage site.
Undoubtedly, it can be said that Beijing is silently spreading its ‘zone of influence’ in Nepal, which India can’t afford to ignore in the long run. Therefore, the need of the hour is that India should work with Nepal to restore peace and install democracy.
In addition to the above, what India needs to do is to share its own experience of conflict resolution emerged after Indian constitution, with Nepal. That would establish India as a benign neighbour.
By adopting the constitution, Nepal has not only done a commendable job but has saved Nepal from unending eternal conflict. The wave of Arab spring unseated authoritarian rulers and kept alive their hope of democracy, but most of the state not even able to draft the constitution agreed to all parties. For instance, Libya tried but failed many times and has been grappling with bloody civil war. Since, Nepal has decided to travel on the path of democracy which allows for the peaceful disagreement. Madhes is important for Nepal’s economy and polity. Importance of Madhesi can be understood from the fact that it is the backbone of the national economy, containing more than 60 percent of agricultural land and contributing over two thirds of the GDP. Therefore, Nepal can’t afford turn deaf ears to their demand for the long time. The beauty of democracy is to peaceful coexistence. Democracy is about inclusion and accommodation of different opinions. Therefore, we can hope that Madesi will get their due place and representation in the new Nepal.