Constitution-Making Process in Nepal and the Madhesi Representation in it

Contents:

Introduction

Part I

Literature Review
i) Historical Background
ii) Madhesis in Nepal.4
iii) The constitution of 1990 and Madhesis
iv) Maoist Rebellion and Madhesi Mobilisation
v) Interim Constitution of 20077
vi) The Constitution of Nepal 20157

Part II

Field Report

Methodology
i) Findings and Observations
ii) Discussion

Conclusion

Bibliography

Appendix

CONSTITUTION-MAKING PROCESS IN NEPAL AND THE MADHESI REPRESENTATION IN IT.

Nepal, with the adoption and enforcement of a new constitution in 2015, entered into a new phase of development. The constitution adopted in September 2015 is the seventh constitution in Nepal. The constitution-making process has been a complex in Nepal. Nepal had to undergo several political turbulences and transformation before adopting this new constitution. The field report and the research paper aims to look into Nepal’s constitution-making process historically and understand and explain this process. In the process, it also will look at the concerns of Madhesis with regard to the constitution-making process and their representation in it. This research paper is broadly divided into two parts, the first part looks into the literature and provides the review of the literature that has looked into the aforementioned topic. The second part is the field report, wherein, through interviews, the first-hand accounts of people are collected and analyzed.

PART I LITERATURE REVIEW

Nepal, by adopting a new constitution in 2015^[1], became federal, democratic and Republic state. As mentioned in the introduction, the constitution-making process in Nepal has been complex as before this Nepal had six other constitutions that were not so successful. To understand the process of Constitution-making a brief background of the constitution is required.

Historical Background

Nepal for a long time has been under the monarchy.^[2] Under the Rana regime, Prime Minister Padma Shamsher Rana promulgated first ever written a constitution in 1948 in response to the growing demand for democracy (Bhattarai, 2007). This constitution emphasized on Nepal’s history and traditions as the inner justification for Nepal’s independence. It enshrined freedom of worship and stated equality of Nepali citizens. It declared that all the proceedings would be done in Nepali, which was declared as the language of the nation (Malagodi, 2013, p. 83). This constitution did not identify any marginalized or disadvantaged groups as needing special provisions (Bhattarai, 2007, p. 1). After the downfall of Rana regime in 1951, King Tribhuvan promulgated Interim Government of Nepal act^[3]. In 1959, another constitution was drafted under King Mahendra, who succeeded King Tribhuvan. It asserted a greater role for the monarchy and was largely anti-democratic. It gave the King the right to impose emergency^[4]. King Mahendra in 1962 promulgated the Panchayat Constitution. This constitution was drafted to maintain the autocratic regime. It vested the sovereignty of the King. This was a more regressive than the previous constitutions. This constitution, with amendments, continued till the Panchayat regime was abolished in 1990. The other three constitutions were formed in 1990, 2007 and 2015. The details of which would be further elaborated under.

Having briefly discussed the historical background of the constitution-making process in Nepal, the paper would discuss the Jan Andholans or the peoples’ movements and the Maoist rebellion and the journey of Nepal from a Hindu state with monarchy to it becoming a multi-party democratic, federal and secular nation. During this course three constitutions have been formed in Nepal, the latest being the Constitution of Nepal which came in 2015. In all this discussion the paper would address the question of inclusivity of the constitution in relation to Madhesis.

Madhesis in Nepal

The population in Nepal is not homogenous; rather it is fragmented. The population in Nepal can be broadly classified into four categories, they are:

1. Caste Hill Hindu Elite (CHHE) or the high caste hill Hindus,
2. Low caste Hindus (Dalits),
3. Indigenous Nationalities (Adivasis, Janjatis),
4. Madhesis (People from Terai region).

The ethnonym of Madhesi refers to residents of Tarai or Madhes region who share common languages and cultures with various communities across the border in North India. The population of Terai includes Caste Hindus, Tharus, Dhimals, and Muslims (Hagen & Lawoti, 2013).

Madhes is one of the three ecological zones of Nepal, covering 23% of the total land area and is 800 km s with its width varying from 25 to 32 km s. Out of the 75 districts in Nepal, 20 districts have been known as Madhes. The 49.3% of the total population of Nepal resides in this region making this region a densely populated region in Nepal (Mahajan & Sah, 2012). Madhesis, excluding the pahadi (hill) settlers, comprise of 32.29% of the population, which includes, 12.9% of non-Dalit caste Hindus, 8.96% indigenous nationalities, 6.74% Dalits and 4.29% Muslims (Lawoti, 2012).

Besides geography, language and culture too form as the basis for the Madhesi identity. Giage defined Madhesi people as the one who speaks plains’ languages as their mother-tongue. These languages include Maithili, Bhojpuri, Awadhi, Rajbanshi, Bengali, Marwadi, Majhi, Hindi, Tharu, and Urdu (Mahajan & Sah, 2012).

Structurally the Nepal polity has been dominated by the Caste Hill Hindu Elite (hereafter referred as CHHE), which majorly is comprised of Bahuns, Thakuris, Chettris. It resulted in the discrimination of other sets of the population who such as Madhesis, Janjatis, Dalits, and Women. The hill group in Nepal view Madhesis as less Nepali than them (Hagen & Lawoti, 2013). There were attempts to homogenize the Nepali identity, and the foundation of it was laid down in 1854 with the Muluki- Ain which was the law of the land. It categorized the Nepali Society based on the Hindu caste hierarchies by which it sustained the dominance of CHHE. This process of homogenization continued during Panchayat era which declared Nepal as the Hindu Kingdom in 1962. The language (Khas-Kura), CHHE culture as the signifiers of the national community. The slogan of Panchayat era was, “Ek bhasa, Ek dharma, Ek besh, Ek desh” (Hagen & Lawoti, 2013). Pradhan (2002) calls such imposition of culture, language and religion of Parbatiyas (hill people) as Parbatiyasation. State excluded cultural histories and languages of Nepali indigenous nationalities, Dalits, Madhesis and glorified the cultural history of CHHE.

The Constitution of 1990 and Madhesis

The constitution of 1990 was drafted after the popular movement called Jan Andolan overthrew the Panchayat regime. This was formed by the constituent assembly nominated by King Birendra. The 1990 Constitution declared Nepal a ‘multi-ethnic, multi-lingual, democratic, independent, indivisible, sovereign, Hindu, Constitutional Monarchical Kingdom’ and granted ‘equality before the law and equal protection of the law.’ It made special provisions to secure the interests of ‘women, children, incapacitated persons or those who belong to a class of socially, economically and educationally backward groups (Kharel, et al., 2016). Despite the positive provisions, there were still discriminatory provisions in this constitution. It still retained centralized administration, privileged Hindu religion over others by remaining Hindu state. It made no reference of Madhesis, Janjatis, and Dalits as marginalized groups. The Nepali language was called as the Language of the nation and other languages, and other languages were allowed in schools only till primary level. Besides that, the FPTP system resulted in political exclusion. It also enshrined gender discrimination by denying the citizenship from the mother’s lineage (Kharel, et al., 2016); (Lawoti, 2007).

The political consciousness among Madhesis though began early in the 1950s when Nepal Terai Congress was formed to represent Madhesis during the short-lived democracy. This party failed to get larger support base. After 1979, when a referendum was held, Nepal Goodwill party (Nepal sadhbhavana party) was formed by Gajendra Narayan Singh to represent the concerns of Madhesis. Before the 1990s marginalized groups sporadically asserted their identities. During the 1990 elections, NGP managed to secure few votes and sent candidates to the assembly (Lawoti, 2012).

Maoist Rebellion and Madhesi Mobilisation

Most of the non-CHHE were unsatisfied with the provision of 1990 constitution. As a result, Maoist rebellion broke out in 1996. It challenged the established basic tenants of Nepali nationalism. With the rise of Maoists, usurpation of power by the Monarch, the opening of public space allowed marginalized groups to create awareness of their cultural, social and political rights. Maoists actively recruited disenfranchised sections including Madhesis, Dalits, women, etc. By taking up the concerns of marginalized sections, the Maoist movement helped in political mobilization of these groups. Shifts in political structures created opportunities for Madhesi activism. First is the political vacuum created by side-lining King and entry of Maoist in the mainstream. The second being the legitimacy and commitment that Madhesis and other similar identity-based claims gained from the political parties in order to get the support against King Gyanendra’s ‘creeping coup’ (Sijapati, 2013). With the support from masses, the Maoist rebellion ended and with the agreement signed between seven political parties and the monarch, ended the monarchy in Nepal.

Interim Constitution of 2007

The interim constitution of 2007, marked as a departure from the 1990 constitution. It declared Nepal as a secular and democratic nation. It abolished the monarchy in 2008 by the 4th amendment. It provided for the proportional representation for 56% of the seats. As promised before, the constitution failed to address the demands of Madhesis which resulted in Madhesi Andolan in January 2017 under the leadership of Madesh Janadhikar Forum (MJF). However, through amendments, those promises were largely fulfilled, and Nepal was made a federal nation. The constitution has explicitly recognized Dalits, Janjatis, Madhesis as historically marginalized requiring special provisions from the state.

The Constitution of Nepal of 2015

The interim constitution of 2007 was to be replaced with a constitution that was to be drafted. To draft the new constitution, two constituent assemblies were elected, one in 2008 which got dissolved without drafting a constitution and the other was constituted in 2013 which by September 2015 drafted the new constitution which was promulgated on 20th September 2015. This constitution re-organized the provinces and created 8 states. The promulgation of this constitution triggered protests from Janjatis and Madhesis. The representation of Madhesis in the first constituent assembly was higher with 21.2% through FPTP and 25.1% through proportional representation. In 2013, it was 14.6% (FPTP) and 21.5% (proportional representation). The concerns of Madhesis with regard to the new constitution are:

i. Demand for an increase in the seats for proportional representation, which were reduced from 56% in the interim constitution to 40% in the new constitution,
ii. Re-organization of the proposed federal units,
iii. Demarcation of constituencies based on population rather than geography,
iv. Amendment of discriminatory citizenship law, which accords the women marrying men outside Nepal the naturalized citizenship when domiciled in Nepal. It impinges on the rights of the citizenship of women and is particularly discriminatory towards Madhesis who often have cross-border marriages. Such naturalized citizens cannot hold constitutional positions.
v. Demand to honor the past agreements to be honored (Kharel, et al., 2016).

As a response to the Tarai agitation, the Constitution was amended in January 2016, and the principle of proportionate inclusion in state bodies (Article 42) was introduced while the demarcation of electoral constituencies would consider population as the main basis and geography as the second point (Article 84).

The constitution though attempted to provide more inclusive provisions, Madhesis are still backward along with other marginalized groups, while several privileges exist with CHHE.

Abbildung in dieser Leseprobe nicht enthalten

(Lawoti, 2007).

The graph above shows that how historically the legislature has been dominated by the Caste Hill Hindu Elites (CHHE) and how the representation of Madhesis has been lower. Despite being 32% of the population Madhesis occupied only 24.1 % in 2008 legislature and Constituent assembly.

Abbildung in dieser Leseprobe nicht enthalten

(Lawoti, 2012).

The graph above shows the wide gap that exists in the representation of Madhesis vis-à-vis CHHE in bureaucracy. The main reason being the medium of language through which exams are conducted. There is a wide gap that exists in the representation of Madhesis in legislature and bureaucracy which are mainly dominated by the CHHE.

The representative provisions that are enshrined in the constitution needs to trickle-down and address these wide gaps, only then the discontentment can be addressed.

[...]

^[1] The constitution that has been adopted by Nepal was drafted by the constitution assembly that was elected in 2013. In a span of two years the constituent assembly successfully drafted this constitution.

^[2] It was only in 2005 that 240 year old rule of monarchy came to an end. Alongside for a considerable period of time there was Rana’s regime in Nepal that continued till 1951 which started in 1846.

^[3] It is the first ever democratic constitution enforced in the Himalayan Kingdom. It opened way for the wider political participation in the country and laid down the founding principles of democracy (Malagodi, 2013). This constitution provided for the provisions of equality and welfare but it did not any concrete measures to address the needs of marginalised groups (Bhattarai, 2007)

^[4] This lasted till the king Mahendra imposed emergency and dissolved the democratically elected government of B.P.Koirala through a military coup.