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Nepal bends to ease its crisis of Constitution

Realisation is dawning that the 2015 Constitution lacks legitimacy. Maoist ideologue Baburam Bhattarai has come out in support of the Madhesi cause.

Sandhya Jain  New Delhi | 26th Sep 2015

Opposition party supporters at a protest in Kathmandu following the crafting of the new Constitution, burn papers symbolising the Constitution of Nepal on Monday. REUTERS

The crisis in Nepal could have been handled better by Indian diplomats as the draft of the new Constitution was made public for two weeks in July 2015, to elicit popular opinion. As the overwhelming majority of people favoured a "Hindu rashtra", the Nepal government agreed to withdraw the term "dharma nirpeksha" ("secular") from the proposed Constitution and insert "freedom of religion" as a compromise. This made Indian diplomats complacent. But European diplomats became hyperactive and "dharma nirpeksha" was reinstated before the promulgation of the Constitution, keeping New Delhi out of the loop. Our external intelligence agency, Research & Analysis Wing (RAW) should have realised this beforehand.

For centuries, Nepal has been a Hindu rashtra with a secular ethos. Though Muslims are barely 4% of the population, Eid is a national holiday and Muslims get government subsidy for Haj. However, King Prithvi Narayan Shah disliked foreign interference in his kingdom and asked the Italian Capuchin monks to leave in 1769; this made the dynasty a target of the missionaries. The secular Constitution, voted on 16 September, stunned the Hindu majority. Its sole concession to Hindu sensibility is to declare the cow as national animal.

Indian Foreign Secretary S. Jaishankar's last ditch effort to persuade Nepali leaders to address the concerns of the Madhesi, Tharu, and Janjati groups was doomed to fail. It is surprising neither the Ministry of External Affairs nor RAW was alert to the prospects of duplicity after Kathmandu denied Prime Minister Narendra Modi permission to hold public meetings (at Sita's birthplace at Janakpur; Buddha's birthplace at Lumbini, and the Vishnu temple at Muktinath) when he went to attend the Saarc summit in Kathmandu last year.

However, in the first sign of thaw following the uproar against the new Constitution, the authorities have introduced an explanation clarifying that "secularism" means the preservation of dharma sanskriti (religion and culture), which has been in existence for generations (sanatan), and freedom of religion and culture. The right to convert a person of one religion to another religion, or to disturb the religion of others, has been denied, despite strenuous efforts by the European Union and Scandinavian countries.

To clinch matters, New Delhi must insist that Kathmandu make the findings of the official July poll public, and honour the wishes of the people. As former Nepal Foreign Minister Ramesh Nath Pandey told this writer, "It is up to the top political leaders to act swiftly and provide good governance, shun the old habit of putting all their sympathisers in all top positions of the state. Otherwise, time will turn against them."

The six-week long unrest on the open border is hurting the land-locked country, with the Madhesis blocking border entry points and the highway, and crippling the movement of goods. In the past month, barely 200 oil tankers have crossed the border at Biratnagar, Nepal's third biggest customs point, as opposed to an average 1,500 tankers.

The bravado that a Constitution slanted against the pro-India majority population could hold has evaporated.

The main agitation is over the delineation of the provinces. President Ram Baran Yadav, a Madhesi, had warned the leaders of the Nepali Congress, the Communist Party of Nepal-Unified Marxist Leninist, and Unified Communist Party of Nepal-Maoist that any promulgation would be unwise without Madhesi consent. But he was overruled and forced to sign the charter on 20 September. Now, the unrest has taken nearly 50 lives.

However, with realisation dawning that the Constitution lacks legitimacy, Prime Minister Sushil Koirala met senior Madhes leader Mahanth Thakur on Tuesday, 22 September. Later, Sushil Koirala, UML chairman K.P. Sharma Oli and Pushpa Kamal Dahal "Prachanda" met Tharu leader Bijaya Kumar Gachhadar. Significantly, Maoist ideologue Baburam Bhattarai has come out in support of the Madhesi cause.

Fortunately, UN Secretary General Ban ki-Moon has refused to back a document opposed by India, and has urged political leaders to act in the broad national interest and "with continued flexibility and inclusivity". The Nepal envoy to India, Deep Kumar Upadhyay, complains that India did not convey "suggestions or reservations or expectations" in time; as amendments have to be passed by a two-thirds majority, the best possible scenario is for the parties to arrive at a political agreement. But, in a bid to placate India, Sushil Koirala's press adviser, Prateek Pradhan, and social and development advisor, Bijandev Pant, were made to resign on 21 September, after S. Jaishankar disapproved of their anti-India writings in the Nepali press.

New Delhi has made a comparative analysis of the interim Constitution of 1990 and 2015, and insists Kathmandu make certain amendments for an equitable statute. Article 84 of the new Constitution does not include the contents of Article 63(3) of the Interim Constitution, which provided electoral constituencies based on population, geography and special characteristics, "and in the case of Madhes on the basis of percentage of population". This gave the Madhes 50% of the seats in Parliament as they comprise over 50% of the population; they naturally want it restored.

Similarly, Article 21 of the Interim Constitution said various groups would have "the right to participate in state structures on the basis of principles of proportional inclusion". But Article 42 of the new Constitution dropped the word "proportional", which disadvantages the smaller groups.

Article 283 of the new Constitution states that only citizens by descent can hold the posts of President, Vice-President, Prime Minister, Chief Justice, Speaker of Parliament, Chairperson of National Assembly, Head of Province, Chief Minister, Speaker of Provincial Assembly and Chief of Security Bodies. This discriminates against large numbers of Madhesis who have acquired citizenship by birth or naturalisation. India wants their concerns addressed, but this is being fiercely resisted by the CPN-UML. Madhesis also want automatic citizenship for wives from India.

Article 86 states that the 59-member National Assembly will comprise eight members from each of the seven states and three nominated members, but the Madhesis want representation based on the population of the provinces. Further, based on the majority of the population, the five disputed districts of Kanchanpur, Kailali, Sunsari, Jhapa and Morang, or parts thereof, should be included in neighbouring Madhes provinces.

Article 154 of the Interim Constitution provided for delineation of electoral constituencies every ten years, which the new statute increased to 20 years (Article 281); the Madhesis want status quo ante.

The bravado that a Constitution slanted against the pro-India majority population could hold has evaporated, with Prime Minister Sushil Koirala forced to cancel his trip to New York, to attend the UN General Assembly meeting. Hectic negotiations are on with Madhesi and Hill groups and a peace dialogue committee is likely to be formed soon. Nepal's much anticipated Constitution of 2015 may turn out to be its shortest ever.

Sandhya Jain is a senior journalist.

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