The issue of Madhes is more political than constitutional

– Bipin Adhikari
The Kathmandu Post
October 19, 2015

The promulgation of the Constitution of Nepal 2072 has seemingly divided the Nepali population into two: those in support of it and those opposing it. The Madhesi Morcha has been leading the protests against the constitution. And the Tarai has been reeling under the Morcha-enforced banda for over 60 days now. In addition, it has been over 20 days since the ‘unofficial’ blockade on Nepal began. This sequence of events has complicated the discourse on the new statute. Against this backdrop, Darshan Karki spoke to constitutional expert and Dean of Kathmandu University’s School of Law, Bipin Adhikari, about the contentious provisions in the new constitution, rights of women, issues of inclusion and proportional representation.

Couldn’t the constitution have addresed the grievances of various sections of society before its promulgation?  

The constitution was portrayed as though it would cure all the problems of the country. And our political leadership also sought to solve multiple political issues at once. But they did not think about their capacity to manage the aftermath. They did not think about the situation they were writing the constitution in, or keep our geopolitical realities in mind. There are over 200 models of constitution in the world. No matter the model Nepal would have adopted, people would still not have been satisfied with it.

But the Constitution of Nepal 2072 (2015) has been criticised for being more regressive than the Interim Constitution 2007?

Many call it regressive but in politics, the present-day voters decide what constitutes ‘progressive’ and ‘regressive’. Nothing in the new constitution goes against constitutional standards. But if one argues that the new constitution is not at par with yesterday’s standards then one can ask, “Is it the responsibility of a democracy to enforce the standards of the past?”

In a democracy, we go by today’s standards. I can be sympathetic to what was written in the Interim Constitution. But irrespective of it, it is today’s majority that either writes or changes the constitution. The Interim Constitution was an outcome of the political commitment that took place seven years ago. It no longer exists now. So it does not make any sense to say that the basis of compromise of the past should be upheld today.

But why weren’t the good aspects of the Interim Constitution like the citizenship rights of women retained in the new one?

As part of human rights discourse, we agree on two things: no one should be stateless in any country and that the state cannot discriminate against its citizens in any respect. A man cannot be conferred more rights than a woman as long as both of them are Nepalis and there’s a level playing field. Apart from this, every country formulates its citizenship laws by keeping multiple policy issues in mind. One can talk of the  International Covenant on Civil and Political Rights,  the Convention on the Elimination of all Forms of Discrimination Against Women and many other human rights instruments. But they are ideals. Even the US and the UK do not adhere to them. For instance, everyone has a right to seek shelter, but look at the state of Syrians. Has the British government welcomed refugees?

Citizenship laws are similar. The point is not to discriminate against Nepal’s citizens but for those who think they deserve it, we will go into the due process.  The problem is, earlier we sought 15 years domicile status to grant citizenship to a foreigner married to a Nepali woman. Now, that provision has been removed by powerful actors behind the curtains.

Isn’t the citizenship provision discriminatory towards women?

The provision in the constitution ensures that no one will be stateless and second, it does not discriminate between Nepali citizens. If we accept the notion of formal equality, then the discriminatory aspects are: the provision to give citizenship to the children of the daughters and the provision on naturalised citizenship. But personally, I do not think that they are big issues. Practically speaking, this constitution was promulgated on Asoj 3 (September 20), and the month is still not over. And according to the constitution, anyone born in Nepal till Asoj 3 can acquire citizenship by descent. So those who will face problems are children born to Nepali mothers and foreign fathers after Asoj 3. So the incidence of the problem will not be huge.

Many also argue that the current citizenship provisions create difficulties for single mothers.

The constitution addressed the major problematic issues but we are yet to formulate laws to implement it. For that, you don’t even need two-thirds majority in Parliament. Any government which has the majority in the House can formulate the kind of citizenship law it wants to offer. We are yet to draft the Citizenship Act. The new law could even mention that a foreign man if married to a Nepali woman will get naturalised citizenship on the day they get married; nothing in the constitution prevents the future laws from doing so. Furthermore, this is probably the first constitution to recognise single mothers and ensure their fundamental rights.   

Still, many would argue that the statute is not inclusive. By including Khas-Arya (and only defining them) in the list of those who qualify for affirmative action, it has diluted the notion of inclusion.

This is definitely problematic. Inclusion and proportional representation (PR) are two different things. Under PR, you can ensure the representation of all segments of the population. Inclusion, however, is for those who have not been represented. For example, if Newars are included as Janajatis then their participation in all organs of the state will increase by many folds and vice-versa. So inclusion should ensure the representation of underrepresented Janajati groups. For example, Tharus and Gurungs have always been politically well-represented in comparison to Limbus and Magars. Therefore, merely talking about the proportional representation of Janajatis does not help the groups within it.

Likewise, Bahun-Chhetris have had a competitive advantage for a very long time. Together, they comprise around 32 percent of the population but their political representation is as high as 70 percent or more. Their representation has never been an issue. But those leading the Janajati movement misinterpreted the issues of representation and inclusion. It scared the Bahun-Chhetris. The Interim Constitution defined such a significant population of the country as ‘others’. And now, those drafting the constitution have made a blunder by including Khas-Arya in the list of communities in need of inclusion.

What would have been the right thing to do by the drafters of the constitution?

The constitution should have ensured proportional representation for five communities: women, Dalits, Janajatis, Madhesis and minority groups. And we could have formulated a law to define what consitutes a ‘minority group’ in Nepal. This constitution lists Tharus as a community which qualifies for inclusion. But it does not give any explanation for separating the Tharus from Janajatis. Second, it mentions Muslims and Madhesis. This raises a question, why does the constitution only mention Muslims, but not Christians or Kirantis or Buddhists? The constitution, prima facie, shows that it is pushing for proportional representation on faulty grounds.

Still, by writing so, it seems to have pleased the Janajatis, Dalits and Bahun-Chhetris. The constitution should have clearly mentioned that proportional representation is not for the dominant population. Based on social indicators, representation in previous elections, it could have said that though the Janajatis qualify for inclusion, state benefits will go to those who have been greatly marginalised among them.

What are the positive aspects of the constitution?

At least proportional representation has been accepted as a constitutional principle. But we could have made it even better by removing the four groups—Khas Aryas, Tharus, Muslims and backward regions—that currently qualify for inclusion and by adding minority groups to the list. The constitution ensures 60 percent political representation through direct elections and 40 percent through proportional representation. To make the 40 percent PR effective, we should first ensure the participation of the historically marginalised groups and then make it proportional. In that case, Newars, Gurungs, Tharus, Thakalis will compete and the Rais, Limbus, Magars, Meches, Rautes will get state protection. However, as the constitution does not envision such a situation, the PR provision is a mere consolation prize for the members of the deprived communities.

On the issue of the ongoing protests in the Madhes, do you see a possibility of incorporating their demands in the new constitution?

The issue of Madhes is more political than constitutional. In my opinion, the constitution has given equal rights to all geographical areas of the country. The major issue raised by the agitating Madhesi forces is that the constitution should ensure the representation of the Madhesis as per their population size. But we need to keep in mind that representation cannot be ensured just on the basis of population. If population size were to be the sole criteria for inclusion, why would we even need a discourse on minority rights and the rights of the indigenous peoples? What is the point in headcount if the area, religion and identity of a person is not recognised?

Therefore, the Madhesi forces cannot take the advantage of two diverse principles with equal strengths. They have to either choose one or the other. Talking about the Madhes as a single entity camouflages its deprived communities. It is not the Yadavs, Jhas, Mishras and the Tarai Brahmins who need proportional representation. If we only use the yardstick of population, then those living in Dolpa will never be represented. So, there are many things as important as headcount that needs to be taken into account by an electoral system. We must rationalise this discourse.

How would you evaluate the constitution as a whole?

We repeatedly requested the leaders to discuss the constitution only with experts for at least three hours. This would have resolved many problems. We could have done a lot more, like added a threshold for political parties. Now, the political parties are unregulated while the state is overtly regulated. This could result in many problems—political parties are not transparent; we do not know their sources of funding, expenditure. Likewise, the constitution could have been clearer about ensuring affirmative action for the historically marginalised.

But overall this is a dynamic constitution. Its biggest gain is a collaborative model of federalism which can be implemented.

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