– Bipin Adhikari
August 12, 2015
The 'six-state deal' of last Saturday that outlined province boundaries and tried to address concerns raised by various stakeholders on preliminary draft has landed into controversy. Protests against six-province model are escalating across the country putting pressure on political leaders to revise state boundaries. What went wrong? What should parties have done to ensure a model agreeable to majority of Nepalis? Constitutional expert and Dean of Kathmandu University School of Law, Dr Bipin Adhikari, shared insights with Mahabir Paudyal and Thira L Bhusal.
First of all, how do you respond to the ongoing constitution process?
The framers of constitution draft seem to have been guided by the notion that slower the process greater the chances of impending factors to destabilize constitution process. This is why they seem to be hastening up. There are both good and bad sides to it. One bad thing about fast track process is that it allows little time for the stakeholders to have their concerns addressed. This process seems to be rather too fast. If it had been steadily building up perhaps it would be justifiable. But everything seems to be happening too fast in the last three months. Little attention seems to have been paid to address concerns of the key stakeholders such as women, Dalits, Janajatis and Madheshis. Some good changes have been made on preliminary draft. Most of people's feedback has been accommodated. So there is little to object. Only provision that concerns me is that of citizenship. Our constitution seems to be too liberal on citizenship.
Various rights activists say our citizenship policy is rather too rigid.
I agree that constitution should ensure that no citizen becomes stateless, that its citizenship policy is not discriminatory and all people with entitlement enjoy equal provision of citizenship. Our constitution has ensured this. But citizenship is closely related with matters related to country's sovereignty, protecting its population, language and culture for the posterity. New provision does not seem to guarantee this. A state is not obliged to grant citizenship to a person who does not live in this country, who has nothing to do with bloodline or descent and who seeks citizenship for opportunity values. But the new provision allows granting citizenship to just about everyone who is born or lives in Nepal, irrespective of their descent and bloodline. Don't forget Nepal has an unregulated open border with India. Thousands of Indians enter Nepal every year. There is no system to keep record of such people, nor any system of work permit. We are becoming liberal on citizenship without considering these vital factors.
Those who speak in favor of liberal policies do so because they have money. They are not speaking on behalf of Nepalis. I would say provision in the preliminary draft was much better than the current one. Current provision allows citizenship to even those who do not technically live in Nepal, who do not speak any of Nepali languages, who do not intend to stay here and start business or join civil service but whose only aim is to serve their vested interests. Like I said, Nepal has open border with India. It cannot raise boundary walls. Why should we be so liberal in such situation? Why should millions of Indians get citizenship every ten years? No country may have as liberal citizenship provision as Nepal. Even the US grants citizenship after a long process. You do not distribute citizenships like raffle tickets. Perhaps liberal policy could be justified if we had regulated border with India, like we have with China. The current provision may have delighted India but it has nothing good for Nepal and Nepalis. We need to allow citizenships to bhumi putras ('sons of the soil') of Nepal, those who live in Nepal and have made Nepal their home, not to those who have one of their feet in India and other in Nepal. It seems we are bringing liberal citizenship policy not because we want it but because India wants so. We are literally granting citizenship to whoever is found in Nepal, to a large mass floating population. It won't empower real bhumi putras of Nepal. This is why I am against it.
Let's return to the constitution. What kind of statute are we going to get from Constituent Assembly?
Look, this constitution is a document of compromise among political parties. Experts have no say in it. So don't expect it to be perfect. Yet politicians have tried to do their best from their level. Yes, there are political statements in it but this is perhaps because of their compulsion to show something to their constituencies. If they had involved some constitution experts in the process, it would be much better both in terms of content and syntax. But I still find provisions regarding form and size of provinces, interstate relations, financial management, relation between federal government and provincial government good. There is no apparent problem in government form as well. But constitution has failed on one fundamental aspect. That is addressing the aspiration of minorities, the marginalized communities and Dalits who have high hopes from constitution.
The constitution should have considered three key aspects: fundamental rights, electoral system and inclusion and mainstreaming of backward communities to make them feel that their concerns are being heeded. All that indigenous communities like Rais and Limbus want is their presence in the parliament. They want their chief minister to be elected from among themselves. Fundamental rights, electoral system and state demarcation should have had provision to guarantee this. This could have been done under six-province model as well, without going into ethnic model. We could have created sub-province (a province within the province system) for communities with high population density of one ethnic or caste group. We could create more than one sub-province within a province and grant those sub-provinces autonomy. This would help to address their identity concern as well.
It's not that simple. Protests would erupt however you demarcated provinces.
Yes, protests happen. We may not be able to ensure provinces absolutely agreeable to all stakeholders. Those who protest do not seem to have any rationale nor do those who demarcated federal boundaries. They seem to have consulted Nepal's map and redrawn the boundaries as they saw fit. Despite this, there is one good thing about six-province model. Politicians have tried to maintain population balance in each province. But it does not have anything substantive to offer to the real marginalized. They should have been granted at least something symbolic which they could own up and feel proud of their identity. The sub-province system could do this. The provision of special autonomous zones, protected areas can also address identity concern. It is not too late yet. Constitution can include this provision even now.
Would it be right to interpret 'undivided' movement as a proof of people's fascination with existing five development regions set-up?
You can say so, to a large extent. The five-region model was good for those who are concerned about country's indivisibility and integrity. But it has nothing to offer to those who have been historically marginalized, who feel that they have been oppressed and not represented. Six-province does not address these concerns. Take Rolpa. It is a Magar majority district. But you have put it in province six, which is the area with Khas majority. How can a Magar of Rolpa be happy with it? If it had been put together with Magar majority district or the area they feel close to they would feel good about it.
Under six-province model, it is extremely unlikely that any province will get ethnic name. Demographic structure does not allow this. Thus ultimately there will be nothing to address their identity concerns. Leadership could have taken measures not to let the protest escalate. They should have told the people that their interests would be protected and that they would be empowered even within six-province model. They should also have explained the rationale for six-province model. They did not. This helped fuel protests.
There is a demand for converting five development regions into five provinces.
This is true from a Khas perspective. But look at the issue from a Janajati perspective. Most Janajatis have high regards for this country. All that they want is a provision in which their leaders can become their rulers. You can ensure this through electoral system, constituency delimitation and, like I said, province within province system. Look at Sikkim. It has mixed population of Brahmins, Chhetris, Lepchas, Limbus, Tamangs and Chamlings. And it is not a separate province. Yet, someone like Paban Chamling, who represents the majority of his community, gets elected in the leadership position. This is not because Sikkim is an ethnic state but because constituency has been delimited in such way that it ensures their representation. Why cannot we do something similar here? As for the protest, it is happening mostly on backing from big parties and the local elites. Otherwise, it would not have escalated like this.
Finally, there was a heated debate on Constitutional Court. Some were vehemently opposed.
The constitution has a provision of Constitutional Court for ten years. Constitutional Court is vital for protecting constitution. It looks into whether right laws have been formulated or not and also provides inputs on such laws. Thus Constitutional Court is a vital entity. But they did not look at it that way. Constitutional Court will remain under the Supreme Court. There could be some overlapping of jurisdiction between Supreme Court and Constitutional Court. But largely, it won't do us any good, nor will it do us any harm since it, in a way, will be under the Supreme Court.