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Nepal: Divided by A New Constitution

Constitution of Nepal 2015 Promulgated

Nepal has adopted its seventh constitution in 67 years. It is the first fully democratic constitution in Nepal. Amit Kumar Jha  looks at the issues the new constitution raises and outlines a role for India as Nepal’s crucial neighbour.

“A good constitution is infinitely better than the best despot”-Thomas B Macaulay

Nepal, a tiny Himalayan state, has succeeded in ending a seven year long political deadlock by adopting a new constitution on 20th of September, 2015.  The new constitution is supported by all the main political parties – Nepali Congress, CPN-UML and UCPN-Maoist. At the same time, the voting was also boycotted by small opposition parties from the Terai region; Even though 507 out of 601 members of the Constituent Assembly (CA) voted in favour of the new constitution, 25 members of Rashtriya Prajatantra Party voted against it 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. The 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 was signed between government and Maoist group. It was the same year Nepal declared itself a secular state. The work on the new constitution began in 2008 when a Constituent Assembly (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 a pluralist, multi-ethnic, multi-lingual, multi-religious, multi-cultural society and federal governance. It has 37 divisions, 304 articles and seven annexes. It divides the entire country into 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 a presidential form of government. All executive power shall be vested in the cabinet that will be headed by the President. 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.

Madhesi Representation and Women
The transition from Hindu monarchy to secular democracy has been peaceful by and large except for a 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. The new constitution divides Nepal into seven provinces but that hasn’t been based on the provisions of the interim constitution. According to article 63 (3) of the Interim Constitution – electoral constituencies were based on population, geography and special characteristics, and in the case of Madhesh on the basis of percentage of population. So, under this provision, Madhesh, 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 the Madhesis, has been dropped in the new constitution and that took them to the streets of Nepal.

In addition to this, they are dissatisfied with the provision of citizenship in the new constitution. The citizenship clause discriminates against women. The new clause states that children of Nepali women married to foreign men will not have Nepal’s citizenship status by default. The fear is that this provision of the new constitution left Nepali women as a second class citizen in her own country. There are other provisions of the new constitution which too don’t represent Madhesis and their concerns and therefore, they want their demand to be reinstated.

India and China: Competing and conflicting interests in Nepal
Sensing the gravity of the situation and the spillover impact of Madhesi protests into bordering Indian states (Bihar and Uttar Pradesh), New Delhi has placed a list of seven amendments to Nepali leadership. Although, these amendments are primarily related to the Madhesi’s demand which revolves around 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 the Madhesi’s concerns so that their rightful representation can be ensured in the modern Nepal state.

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 Nepal’s economy is an example of growing Chinese presence in Nepal.

In order to reduce Nepal’s economic dependence on India, Nepal has been included as a dialogue partner in Shanghai Cooperation Organisation (SCO), a China and Russia led regional security organization. It is worth mentioning that India and Pakistan will only be complete members of the SCO by 2016 after certain admission processes are completed.

Beijing wants to reduce New Delhi’s influence in Nepal at all levels. And therefore, Beijing has designed a long term strategy to fill in the vacuum created by India. As per reports, Beijing plans to utilize the common border between India and Nepal for accessing the Indian market. China, with its cheap products, wants to access the markets of Indian states bordering Nepal and through them to the rest of the country. So, India needs to be cautious because India and Nepal have a porous border where the volume of informal trade is higher than that of formal trade.

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 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 itself from unending eternal conflict. The wave of Arab spring unseated authoritarian rulers and kept alive their hopes of democracy, but most of the states were unable to draft a constitution agreeable to all parties. For instance, Libya tried but failed many times and has been grappling with a bloody civil war. Nepal has decided to travel on the path of democracy which allows for the peaceful disagreement. Madhesh is important for Nepal’s economy and polity. Importance of Madhesh 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 to over two-thirds of the GDP. Therefore, Nepal can’t afford to turn deaf ears to their demand for a prolonged time. The beauty of democracy is in peaceful coexistence. Democracy is about inclusion and accommodation of different opinions. Therefore, we hope that Madhesis and Nepali women will get their due place and representation in the new Nepal.

Amit Kumar Jha currently works at Dhyeya E-learning, Delhi, as a Researcher, where he develops content for current international events. He is also a researcher at Wikistrat, South Asia desk.

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