An article from The Hindu forwarded by the Asian Human Rights Commission
No other term but ‘dismay’ can describe one’s response to New Delhi’s ungenerous reply toNepal’s democratic drafting of a Constitution through a Constituent Assembly. The Ministry of External Affairs merely ‘took note’ of the document, and followed that up a day later with a veiled threat of economic blockade, which Nepal has already experienced in 1988. According to reports, this was followed up the next day with a list of demands from New Delhi as to what should go into Nepal’s Constitution in amendment, including the kind of provinces to be created exclusively in the Tarai-Madhes plains. This overt interventionism, meant to impress Kathmandu’s recalcitrant political class, has left the observer aghast.
The ‘Constitution of Nepal 2072’ (in the Vikram calendar) was the culmination of seven years of effort, including a failed first Constituent Assembly (CA) feeding into the second CA. This process began with the 12-Point Agreement of 2005, negotiated between the underground Maoists and Nepal’s democratic parties, facilitated by New Delhi, with the promise to hold elections for a Constituent Assembly. The constitution-writing had been frustratingly painstaking, even suffocating, and it was hoped that India, more than any other country, would recognise the need of Nepal to move on with its social agenda and economic revival.
A ‘rights-based’ Constitution
Attempting to write a modernist Constitution in ‘post-modernist’ times, there are many holes and loopholes in the statute. This is a rights-based document that makes promises to all, rather than the spare, basic law we have been taught to be the ideal, and it makes many promises conditional upon the enactment of laws.
The preamble starts with ‘we the Nepali people’ rather than the ‘people of Nepal’, forgetting that there are those who self-identify as ‘Nepali’ elsewhere in South Asia. A dreadful sop to the Maoists was the salute in the preamble to the ‘armed conflict(s)’ of the past.
There are contradictions galore in this Constitution, written by politicians responding to populist pressures rather than by circumspect jurists and constitutionalists. The process was weakened by senior leaders who formed a cabal that took all decisions instead of allowing debates on the floor of the Constituent Assembly.
For all its weaknesses, though, the Constitution has progressive elements that would do all of South Asia proud, from institutionalising the republic and secularism, to confirming social and economic rights as fundamental, to rejecting the death penalty. The needs of marginalised communities, including the Dalits, the disabled and those from the LGBT community, are addressed. There is a genuine attempt to safeguard the rights of women, though it is not seen to be enough.
Perhaps the most welcome aspect is that amendments can be adopted with relative ease over the next two years and four months, as the Constituent Assembly enjoys a kind of afterlife as a Parliament with the same party-based configuration. Everything except sovereignty and national integrity are open to amendment.
Given that we are all saddled with the nation-state as the primordial unit of governance, it is important for India to let the neighbour sort out its challenges on its own. The Nepal-India relationship, including the historically defined open border, the alive cultural linkages and the overall goodwill between the citizenry on the two sides, holds out an example for South Asia as a whole. For this reason alone the Modi dispensation, which places such a store by improving neighbourhood relationships, should be careful not to act, or to be seen, as Big Brother.
The fact is that India is big, and it is a brother to Nepal. The latter, meanwhile, is the ideal country where enlightened sovereignty can lead to an end to social marginalisation, economic growth, and the ratcheting down of nationalist posturing that has been such a drag on the egalitarian evolution of the Subcontinent over the past six decades.
There are enough indications, through its experiments in community radio and locally managed forestry, local government and in the easy cosmopolitanism of Kathmandu, that Nepal can emerge as an ideal democracy. For this, Nepal should be allowed to make its own plans and mistakes.
The country has been politically sovereign for two-and-half centuries, but lacked democracy to make governance work for the people. Democracy was achieved in 1990 but was derailed with the Maoist ‘people’s war’ barely five years later. The conflict ended in 2006 but then followed a peace process and period of transition, during which time inter-community polarisation flared.
The interminable transition was to have ended with the promulgation of the Constitution, but the violence in the plains and the vehemence of the official Indian reaction has raised questions on whether Nepal will actually turn the corner.
New Delhi’s statements leading up to the promulgation of the Constitution and thereafter have been marked by escalating interventionism, with the gloves off. Indeed, one constant since before Mr. Modi took charge has been the itch to micromanage Nepal, with even the external intelligence agency enjoying a carte blanche to operate overtly. Certainly, two key points of the Panchsheel Principles (mutual respect for sovereignty and non-interference) seem to have been consigned to the dustbin.
The reason for South Block’s imperative for visible interventionism may be as benign as wanting to be perceived as the decisive power on Nepal, or more problematic and linked to strategic interests including cross-border security and Himalayan water resources. It could also be as simple as the personal pique of mandarins and apparatchiks, who feel that Kathmandu’s three major parties have stopped listening to them.
The opinion-makers in Indian media, including former Ambassadors tied to present policy, have failed to consider the representative and inclusive nature of Nepal’s Constituent Assembly. Altogether 9.5 million citizens participated in the CA elections of November 2013, making up fully 78 per cent of registered voters. Of the 601 Assembly members, 335 were placed through proportional representation and 240 were directly elected, itself an advanced South Asian experiment.
In terms of the promulgation, 92 per cent of all Constituent Assembly members endorsed the Constitution while 85 per cent voted in favour of the document, far above the required two-thirds majority. This was very much the “the widest possible consensus” that has been Prime Minister Modi’s personal insistence. Of the 116 (first-past-the-post) seats occupied by representatives from the Tarai-Madhes plains, 105 voted for the Constitution while 11 boycotted.
New Delhi’s support has been lopsided by focussing on the Madhes-based parties that have been demanding plains-only provinces. This constitutes a lack of concern for the rest of Nepal with its profusion of communities, 125 in total. Neither is the plains citizenry monolithic, with a multiplicity of identities that includes the Muslims, the Tharus and the Dalits, as also a large number of Pahadiya hill people.
The activism by New Delhi also does a disservice to the Madhesi people of Nepal, who have no divided loyalties and who see their future as secure within a democratic Nepal even as they fight for inclusion, equality and dignity. It bears keeping in mind that only the Madhesi population has been provided an identity-based province (province No. 2 of the east-central plains) in the federal delineation.
If the neighbour’s strategic interest forces a fait accompli of exclusively plains-based provinces, there are two possible outcomes. First, the massive weight of poverty of the plains will be locked in and the promise of federalism will likely be wasted. Second, this interference will create a politically unstable Nepal astride India’s populous heartland. A return to Panchsheel, therefore, seems well advised.
Three-cornered mistake
All three sides have made mistakes in Nepal: the national leaders, the Madhes-based parties and Indian policymakers. The topmost leaders of the national parties (Nepali Congress, Communist Party of Nepal (Unified Marxist-Leninist) and Maoists) have preferred a ‘rule by syndicate’, and made errors such as neglecting the Tharu people in expanding the originally proposed six provinces to seven provinces. They are yet to visit the plains to express sorrow for the more than 45 dead during the agitation of the past two months.
As far as the Madhes-based parties are concerned, at least some of their positioning is explained by the fact that the top leaders are fighting for political survival, having been routed in the November 2013 elections, when the (plains) voters rejected their main plank of identity-based provinces.
As for the set of seven demands that New Delhi is said to have placed before Kathmandu, including proportional representation in all arms of state, adjustment of electoral constituencies according to population, as well as aspects of citizenship rights, these are matters that have been already discussed between the Madhes-based parties and the three main parties. From the pulpit of the Constituent Assembly, the latter have committed itself to carrying out the required amendments.
Before raising the ante on Nepal further, the Indian side should keep in mind that there are many forces that would want a collapse of the Constitution of Nepal-2072, including the anti-secularists and anti-republicans.
New Delhi must introspect and take into consideration the sovereignty of a neighbour, one that has always been sensitive to its well-being and security concerns. Nepal must be allowed to sort matters out by itself. Kathmandu, for its part, should not fall short of responding to this challenge of Indian officialdom with dignity and logic. Only dignity and logic.
Kanak Mani Dixit, a writer and journalist based in Kathmandu, is founding editor of the magazine Himal Southasian.
