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Who cares Constituent Assembly?

Bipin Adhikari
The Kathmandu Post, 3 July, 2008
Source: The Kathmandu Post

There seems to be no end to the political gridlock in Nepal even after the formation of the Constituent Assembly to draft a new constitution for the country. For many, the Constituent Assembly does not matter. What matters to this group is a guarantee against the Assembly itself -- its powers to frame the issues, discuss them through the active participation of the people and take decisions on the basis of the constitutional process internalized by Article 70 of the Constitution. This is madness.

Following an agreement with the tarai parties, which have been successful to disrupt the Assembly proceedings for the fourth time, the three main parties – Communist Party of Nepal (Maoist), Nepali Congress and CPN (UML) – have finally constituted a three-member taskforce to revise the draft of the constitution amendment bill by incorporating the tarai parties' demands agreed by the government before the April 10 elections.

This refers to the demand of the Madhesi parties to get recognized the entire lowlands of Nepal (east-west plains) as a single province of Madhes -- no matter what it entails to the rest of the communities found there. Their demands also included the recognition of this new province as an autonomous region and the inclusion of the Madhesis in the civil service and their group entry into the Nepal Army. This is yet another attempt by the so-called major parties to reduce the significance of the Assembly to a bare minimum.

Although the government had not agreed to amend the constitution to incorporate the issues that were agreed upon at that time; they have now agreed to do it, thereby further constraining the power of the Assembly to restructure the country and decide the features of the new constitution in its own terms. The fact that this issue is being finalized long before the Assembly has even the opportunity to discuss the objective principles of the new constitution cannot go down well with established constituent assembly practices.

The desire of the Madhesi leaders to have the entire plains identified as the unified Madhesi province has some clear reasons. Historically, there had never been a principality called 'Madhes' in this country. Many Madhesis want to see the lowlands throughout Nepal as their territory and themselves as its indigenous inhabitants. The rapid increase in their educational status, political awareness, their social and cultural integration with the local communities and the national mainstream, ongoing development of local infrastructure, and the democratization process that started in the country for the last couple of decades have further contributed to their sentiment.

With swelling Madhesi population, and the latest round of generous distribution of the Nepali citizenship to many new comers, including thousands of traders, petty merchants and service sector professionals in the towns and cities, they stand out as an important political factor in the national political dynamics. It is natural, therefore, that they want to assert this fact through the constitutional means. If all the flatlands of Nepal could further be developed as a unified province - with all Tharus and other local indigenous people included within this political fold, it could apparently be a bulwark against what is usually known as the 'domination' of the hill and mountain dwellers, especially of the Khas Bahun-Chhetris and Newars in contemporary Nepal. This is an issue of identity as well. Madhesis see this move as an apparent political value addition to their communities.

There are several other considerations though. This country is yet to decide about what type of federalism it is going to adopt through the Assembly. Apparently, there are competing claims -- there are issues of equality of all ethnic groups, justice-related considerations and national security requirements. People need to be empowered, but scavenging this country's sovereign interests to gratify any local constituency would not be a rational choice for anybody. There are some others who think it is not necessary to federalise this country. Rather a process of devolution of power could be considered to each area according to their pressing requirements. They think the Assembly should take position on such issues only after a thorough debate.

Partly related with this concern are two additional elements. The first one is the possibility of imbalance that might result from the federalizing strategies or the devolution process. Second, there is a political question, which is more important, a sense perhaps of the possibility of alienation on the part of many people who feel the government does not take as much notice of them as perhaps it does of the people who can create nuisance value.

Many people of tarai -- including the Tharus and other forest dwelling smaller historical communities -- have their own claim of the ancestral land. In fact, neither the hills of Nepal, nor its high mountain settlements have ever been recognized as one single province either today, or in the remote history of the land. They have been ethnically as diverse as the low lands of Nepal even though the rulers who ruled them had sometime been one or the other dominant group, coming from one particular ancestral area, and sometime of an ethnically mixed lot.

As far as the low lands are concerned, they were mostly inhabited by the Tharus and other 'local' indigenous groups, although they formed the territory of the adjacent hill principality in most parts of the country. For example, the Siraha and Saptari districts, which have been the hub of the Madhesi movement recently, used to be the territory of the Chaudandi principality before their unification into the modern Nepal. This principality was ruled by the Kirants, although the administration was shared with the local Khas and other communities as well.

Whatever the history, the modern Nepal is prepared to devolve power to all constituencies, no matter where they are, and how big or small is their size. It is a shrill question why the issue of 'one Madhes' is being insisted on out of proportion. If the hills and mountains co-exist with the rest of Nepal without becoming one province; why the lowlands need such a new status is hard to answer.
Again nobody should try to define autonomy as the right of an ethnic group to minimize the right of the rest of the people. Confusion over the issue stems not so much from whether there exists a right to self-determination, which is included in many international human rights documents, but from the failure of those documents to define exactly who is entitled to claim this right — a group, a people, or a nation — and what exactly the right confers.

Claims to self-determination are frequently in conflict with one another, and no clear standards have been established to distinguish those claims that will be accepted from those that will not. Equally important is respect for territorial integrity and political unity of the constituents of power. States should not encourage the break-up of other states because virtually all states are vulnerable.

However, why to blame Madhesi leaders only? The tragic question is - if the Maoists (and those supporting them from invincible quarters) can decide the fate of monarchy and the question of federalizing the country by amending the existing Constitution and without subjecting them to the Article 70 procedures in the Constituent Assembly, why should there be a double standard in the case of Madhesis? If Madhesis are granted why not Kirants, and if Kirants why not trans-Himalayan people? And if the Maoists could be used for such strategic returns, why not the rest of the communities?

Is it not then important for the whole country to recognize the Constituent Assembly and its procedures and start the deliberative process without attaching any conditions to its decision-making capacity?

Strangely enough, why the 'loktantrik' partners of the Maoists, not to mention the most primate among them, should find serious stock losses now when the Madhesis want the right to self-determination - something that they have been demanding for all ethnos? Is democracy still on their agenda? Or, it has disappeared the way the 'horns' of the jackals of Nepal disappear once they finish howling everyday after dusk. (Jackals do not have horns. But a small bunch of hair with horn emerges from their forehead when they howl facing downwards). Very funny.

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