Seven years back, Nepal began the process to write an inclusive constitution in order to institutionalize the gains of the peace process, which took off in November 2006. Finally, the new Constitution was promulgated on September 20, 2015. Unfortunately, nearly over half of the Nepali population have branded the new Constitution as regressive and protested against the same. The anti-draft protests in Nepal, especially in the southern plains, started on August 9, immediately after the constitution making process was initiated. Since then, Nepal has been witnessing many protests against the new Constitution in the Terai region (also known as Madhesh or the low-lying land of Gangetic Plain). Over 44 people have been killed, which include civilians and security personnel, and more than hundred injured in clashes between security forces and protesters in different incidents. The situation turned worst when the protestors imposed blockade along all the major trading points between Nepal and India and choked supply lines to Kathmandu. Many parts of Nepal have witnessed shortage of essential commodities due to prolonged protests and roadblocks placed by the Samyukta Loktantrik Madhesi Morcha (SLMM), Tharus and various janajati (ethnic) groups.
Several attempts of initiating dialogues have been rejected by the agitating groups. They have been insisting that the government has failed to create an atmosphere for negotiation and implement their demands. The marginalized groups of Nepal -Madhesi, Tharu and Janajatis- feel that the 2015 Constitution has failed to accommodate their long pending demands like demarcation of provincial boundaries on ethnic line, two Madhesh provinces, proportional representation in the State agencies and Parliament, equal political rights to persons, acquiring citizenship by naturalization and implementation of previous agreements between them and the State. The SLMM have also demanded withdrawal of the Nepal Army from the Terai region as one of the pre-conditions for negotiation between state and agitating groups. Even after promulgation of the Constitution with 85 percent of votes by the Constituent Assembly (CA), the agitating groups have been continuing their protests.
Although the Janajatis and Madhesi groups have been demanding accommodation of their demands in the new Constitution to make it inclusive, the ruing establishment went ahead with the promulgation. This vitiated the trust level between the people living in the plains and ruling Pahadi (hill) elites. Instead of keeping Nepal united, the new Constitution divided the Himalayan country along ethnic and geographical lines. For example, Article 42 (1) states: “Socially backward women, Dalits, Adibasi, Janajati, Adibasi Janajati, Madhesi, Tharu, minority groups, persons with disability, marginalized groups, Muslim, backward classes, gender and sexually minority groups, youths, peasants, laborers, the oppressed and the citizens of backward regions, and economically poor Khas Arya shall have the right to employment in state structures on the basis of the principle of inclusion,” But the term ‘principle of inclusion’ appears vague and does not give any constitutional guarantee of marginalized groups’ representation in government jobs according to their population. This Article is in reality a backward step in comparison to the Interim Constitution of 2007, which guaranteed proportional representation of marginalized groups in government jobs.
Second, Article 84 (1) says, “The House of Representatives shall consist of two hundred and seventy five members as follows:-(a) One hundred and sixty five members elected through the first-past the-post electoral system consisting of one member from each of the one hundred and sixty five electoral constituencies formed by dividing Nepal into 165 constituencies based on geography, and population.” This provision has again undermined the marginalised groups’ representation in the lower house. The twin basis of delineating the electoral constituency again violates the democratic ethos. The Constitution is also silent about how to delineate the electoral constituency on the basis of geography and population. This has made the marginalized groups insecure. Further, nowhere in the world electoral constituency for lower house is decided on the basis of geography and population. By implementing these provisions, hill region could acquire roughly 35 extra seats on geographic basis since each district might elect one member each. Again on the population basis, hill regions could get around 22 seats extra than the Terai.
Similarly, the Terai region could be poorly represented in the National Assembly (NA) also. According to Article 86 (2) (a), eight members would be elected from each province. In that case, two Terai provinces would send 16 members according to the present provincial boundaries. As a result, representations from hill provinces would dominate the NA with roughly 24 seats extra.
Third, the Constitution has discriminatory provision regarding persons who obtain citizenship by naturalized process. Art 11 (7) reads, “Person born to Nepali woman citizen married to a foreign citizen, she/he may acquire naturalized citizenship of Nepal as provided for by a federal law. But again, Article 289 (1) restricts the persons who have obtained citizenship by naturalization process for top constitutional positions.
Lastly, while the people of the plains have been demanding two Madhesh Pradesh, the new Constitution has divided the region into six. This has further increased political and social insecurity of the people living in the Terai region. They now feel more than before that the hill ruling classes do not want to share power with them.
Out of these four contentious provisions in the new Constitution, Article 42, 84 and 86 are more serious in nature than the others. Unless these provisions are corrected through amendments, the Terai region might continue to witness violent protests in the near future. Although the government has formed a three-member committee to initiate negotiations with agitating groups and the cabinet has approved amendments in Article 42 and 84, the agitating groups feel absence of sincerity from government side. They feel that government’s initiative is intend to divert the attention of the agitators. The government has not come out with any detail plan to address their demands. There is also a feeling that the amendment process may not be implemented because of sharp differences of views between top three political parties about electing a consensus candidate for prime minister position. The fissure within the top three political parties could either derail or delay the amendment process, which requires 2/3 majorities.