On January 23, Nepal’s parliament passed the first amendments to its four-month-old Constitution. The country’s three main political parties – the Communist Party of Nepal (Unified Marxist Leninist), Nepali Congress, and the Maoists – endorsed amendments related to proportional representation in the lower house and reservations in public jobs. These were among the key demands of the political parties from the plains, or Madhes.
The Indian government welcomed this as a positive development and a constructive step, raising hopes that it would pave the way for Nepal Prime Minister KP Oli’s visit to India next month. But later that day, the representatives of the political parties who have been opposing Nepal’s new Constitution and demanding amendments, walked out of the parliament. They described the amendments as “unilateral”, “incomplete” and a betrayal of their demands.
Since the new Constitution was approved in September, two large ethnic groups – the Tharus in the western plains and the Madhesis in the central and eastern plains – have organised massive protests and imposed a bandh along the international open border with India to disrupt the supply of goods and fuel to the rest of Nepal. The blockade, which Nepal claims has India’s tacit backing, has continued even after the latest amendments. All along, India has consistently denied the existence of a blockade and has claimed that movement of goods was affected because transporters have security concerns.
It is against this backdrop that Dipendra Jha, a constitutional lawyer practising in Nepal’s Supreme Court and the chairperson of the Tarai Human Rights Defenders Alliance, a legal and advocacy group, spoke to Scroll.in in New Delhi. In this interview, he explains why Madhesi protesters have continued their agitation against the new Constitution. Excerpts:
Do you think the Constitutional amendment addresses the Madhesi demand for proportional representation in the House of Representatives?
No. The basis of population was recognised as the basis of electing members from constituencies in Madhes in the interim Constitution, after 54 youth died in 2007 during the first Madhes andolan. Madhesis and Tharus say that population is their strength, whereas in the new Constitution, the ruling parties have given equal weight to population and geography in delimiting constituencies.
A majority of electoral constituencies fall in sparsely populated hilly and mountainous areas. This may not change very significantly even after the amendment. The new amendment to Article 84(1) says that in the first-past-the-post system in 165 electoral constituencies of the Lower House, population will be the main basis and geography will be the second basis for forming electoral constituencies. It adds that within a province, each district will have at least one constituency. But the new amendment fails to specify in what proportion will population and geography be weighted, and how geography will be defined. It is still subjective and open to interpretation. Mandating that each district will have at least one constituency again introduces the geography principle because the hill and mountain regions have more districts, while the Terai has fewer districts and more population.
Also, some commentators have said that the amendment gives 80 of 165 Lower House seats in Madhes. But it is not possible to confirm how many seats will be in Madhes till we know the final province or state boundaries in the Terai. This is why Madhes-based parties were pushing for another amendment that restored the population as basis for constituencies in the plains, as the interim Constitution had granted, and have not expressed any political ownership over the recent amendments.
As of now, the boundaries of the seven provinces or states maintain the demographic unity of hill communities, while breaking this [unity] for communities living in the plains. Redrawing the province boundaries is one the main demands of the protesters.
The second amendment - on participation and proportional inclusion in public employment – satisfies a key demand of the protesters for reservations in public employment. Why are Madhesi-based parties then not endorsing this change?
Nepal’s Constitution provides for reservation in 45% of all jobs in state organs and public employment. Within this 45%, the new Constitution made 17 groups or clusters eligible for public jobs: “socially backward women, Dalits, Adivasis, Janjatis, Khas Aryas, Madhesis, Tharus, minority groups, persons with disability, marginalised groups, Muslims, backward classes, gender and sexually minority groups, youths, peasants, labourers, the oppressed and citizens of backward regions”. Instead of focusing on redressing historical marginalisation, the Constitution included generic groups such as “youth”, as well as categories such as the Khas Arya or hill upper caste community who are already dominant in politics and in all state organs.
Further, it described the basis for right to employment as being “on the basis of principle of inclusion”, instead of proportional inclusion. The recent amendment to Article 42(1) re-introduces the term “proportional” so that women will now get 33% reservation, Dalits will get 13% as per their numbers, and so on, which is an improvement.
However, even now, the new amendment provides different parameters to apply for reservations. In the case of the upper caste Khas Arya, the criterion is “economically weak”. But for all the other clusters or groups, the term “economically, socially, or educationally backward” has been added. The government can address poverty among the Khas Arya through poverty alleviation schemes. Madhesi leaders say this does not need affirmative action, which should focus on communities who have long been marginalised.
Why do Madhesis and the Tharus want the federal boundaries to be redrawn?
The contest is both for electoral benefits and access to natural resources. The Madhes-based political parties are demanding two provinces horizontally delineated in the plains. They say that the three main political parties have gerrymandered the province boundaries in such a way that, forget higher posts such as prime minister, the Madhesis will not even be able to get elected chief ministers in states in the Terai where members of Madhesi communities will be spread across five provinces to form a minority. At the same time, in six of seven states, the upper caste Khas Aryas’ demographic unity has been maintained.
The Madhes-based parties want more districts in the eastern-most plains where the Kosi barrage provides irrigation potential, and industrial centres such as Morang and Sunsari are located. Similarly, in the west, in Kailali, Kanchanpura, there are forests, there is the Mahakali river, as well as business entry points to India.
Two previous expert groups – the High Level Restructuring Commission as well as the State Restructuring Committee – had also recommended two provinces in the plains, horizontally from east to west on four bases of cultural and historical identity and five bases of capacity – economic and administrative viability, sustainability, equal distribution of resources. But the mainstream political parties rejected both reports. After the [April 2015] earthquake, in the name of “fast-tracking” the Constitution, the three mainstream parties including the Maoists signed a 16-point agreement and backtracked from their earlier commitment to proportional inclusion and federal boundaries.
Under their agreement, the three main parties reduced the period of discussions in parliament from a week to three days. Similarly, the period of public consultation and feedback was reduced from a month to a week. People complained that they were not able to submit their feedback. In my hometown of Janakpur, this led to clashes.
Why do Madhesis claim that the new Constitution will reduce them to “second-class citizenship?
The Madhesis as well as women’s groups have been agitating against the citizenship provisions which said that if a Nepali man marries a non-Nepali, his children will get citizenship by descent with all rights, but his spouse will be eligible for naturalised citizenship and will not be able to contest or hold any constitutional posts. In a Nepali woman marries a non-Nepali, even the children will only get naturalised citizenship with similar restrictions.
They changed the language of the clause but re-introduced the original provision for Nepali women marrying non-Nepalis. The Madhesis see this as an attack on the common practice of cross-border marriages among communities living near the India border.
The Nepal government has termed the blockade on the India-Nepal open border as India’s undeclared economic blockade to cripple supplies after the government ignored India’s interventions over the Constitution. Do you agree that the blockade has India’s cooperation and this in an interference in Nepal’s domestic affairs?
The Madhes movement is an indigenous, genuine, rational movement. Definitely, there is some kind of solidarity from India. If the 1,750-kilometre border remains disturbed, it has implications for India’s security and order too. I think India should continue cooperating with the protesters because this is a fight for social justice. India trying to influence domestic politics in Nepal will not be a first. There are precedents of India’s intervention in the fight against the Rana regime in 1951, in the fight against the panchayati raj system of the monarchy in late 1980s, in the last 10 years of the peace process. Not just India, even the United States made a strong statement last week asking the Nepal government to resolve the political impasse.
Essential supplies have been restored in the last few weeks. We hear that 1,300-1,400 trucks are now entering Nepal through border crossings other than Birgunj, which is still blocked. There are traffic jams in the capital Kathmandu and there is no material scarcity, though it is true that the protests led to shortages last year. Now, the newspapers are reporting that oil and fuel depots are full, but the last few months have seen a flourishing black market in goods.
Nepal’s Constitution provides proportional reservations in public employment as well as in the legislature for women and for Dalits, among the most marginalised groups living in the Terai. Will the Madhes parties’ demands, especially that for redrawing of federal lines as per ethnic populations, not strengthen the existing hold of upper caste men of the Terai in politics and in economic relations?
Women and people from all castes, including Dalits, have taken part in large numbers in the last five months of the andolan. Three women were among more than 50 persons killed when Nepal’s police fired on protesters in Birgunj, Janakapur and other districts in the plains last August-September.
All these groups are fighting along with other dominant groups because they see the Madhes andolan as the larger cause through which the rights and dignity of every group living in the Terai will be achieved. For instance, women and Dalits have been provided reservations in the Upper House, but what about the Lower House? Since the total number of constituencies in the first-past-the-post system in the plains has been kept deliberately low compared to the hilly areas, this is an attack on the rights of political representation of women, Dalits, and other marginalised groups such as Muslims, living in the Terai.
Communities living in the plains have faced long years of discrimination from the ruling groups from the hills for their appearance and cultural similarities with Indians across the border. Will these marginalised groups be able to compete politically and get fair political representation in other districts which are already dominated by the political elite from the hill communities?
The gender and caste inequalities will only be addressed when state-level legislatures ensure that the first laws passed by them guarantee proportional inclusion to women and Dalits in state parliaments and local bodies.