Each and every article of the draft constitution reveals how technical staffers have manipulated their words. It starts right from the preamble which is the soul of the constitution. It is also considered to be one of its cardinal features and, therefore, cannot be easily amended. The preamble mentions the 2006 Jana Aandolan and the Maoist armed struggle but not the Madhes Movement. It was because of the Madhes Uprising of 2007 that the major political parties were compelled to incorporate federalism into the Interim Constitution.

Secularism is also missing from the preamble of the draft constitution. This principle guarantees citizens that the state is neutral in terms of religion. The mention of secularism in the preamble could have addressed the concerns of religious minorities. Similarly, the Interim Constitution mentions federalism in the definition of the state, but the draft constitution has omitted this word from the definition of the state, which indicates that federalism is not sacrosanct for the major parties.

Not for inclusion

Articles 23 and 47 highlight the needs of the Khas Arya group, but under these very articles, the Khas have been mentioned ahead of the Madhesi and Muslim groups. Further, the drafters have not defined any other community apart from the Khas in Article 88. Does this mean that the drafters who are all from the Khas Arya group more concerned about their own community than the other marginalised communities? Further, if all the groups are included in the list of those who need affirmative action, then there would be no need for open competition.

Article 90 of the draft constitution states that all the provinces will elect five members to the Upper House of Parliament. The government will nominate five members. As there seems to be a tentative agreement among the politicians to have two provinces in the Madhes, this means there will only be 10 representatives from the region in the Upper House as opposed to 30 representatives from the hills. Since the Madhes has a higher population than the hills, this will affect the ability of Madhesis to make laws that are vital for their empowerment. So each province should have the right to elect at least one representative to the Upper House and the rest should be elected on the basis of the province’s population. The basis of the election to the Upper House is first-past-the-post (FPTP), not proportional. The electoral college includes the head of the local bodies, which is complicated. Similarly, the mixed system will reduce the inclusion of excluded groups including Dalits in the House of Representatives until a priority list and some special provisions of inclusiveness are adopted. Only one or two parties will control the local bodies since elections will be held according to the FPTP system as stated in Article 221(4).

Biased against Madhesis

Meanwhile, Article 282 says that only citizens by descent will be entitled to hold the post of president, vice-president, speaker, chair of the Rastriya Sabha, chief minister, speaker of the Provincial Assembly and chief of the security agencies. When a non-resident Nepali holds political positions in the UK, US or other overseas countries, Nepalis swell with pride. But the draft statute seems intent on not allowing naturalised citizens from enjoying their full rights. What kind of nationalism is this? Such harsh provisions did not even exist in the Panchayat constitution. It is against equality and human rights to categorise

citizens into first class, second class and third class. Article 282 could also have adverse effects on cultural and marital relations between Nepalis and Indians. It could discourage Indians from establishing marital relations with Nepalis for fear of their relatives being categorised as second or third class citizens. Article 19 stipulates that non-resident Nepali citizenship can be granted to people of Nepali origin living in foreign countries other than Saarc countries. These people will not be entitled to enjoy their economic, social and cultural rights. But what does the term ‘Nepali origin’ mean? Will Madhesis fit into the definition of people of Nepali origin?

Federalism, a must

Article 280 (13) states that the delineation of the constituencies will be carried out in every 20 years in contradiction with Article 154 of the Interim Constitution. Article 63 (3) of the Interim Constitution states that the constituencies will be delineated every 10 years which is more practical and logical. Twenty years is a long period of time, and if we keep in mind that general elections are normally held every five years, we come to the conclusion that four general elections can be held in 20 years. The draft constitution has not mentioned what authority will prepare the voters’ lists. The new constitution must have provisions for these issues.

Similarly, Article 292 (2) states that local elections should be held as soon as possible. On the one hand, the major parties want to delay settling the federalism issue and do not want to commit themselves as to when they want to hold provincial elections. But on the other hand, they are in a hurry to hold local elections.

The draft constitution further talks of a bicameral Parliament. But without settling the issue of federalism in the constitution, an election to the Upper House cannot be held. And without holding the election, Parliament cannot be constituted and laws cannot be enacted. In such a situation, how can the government function? Without settling the provincial boundaries, no one can move ahead. If the new constitution is promulgated without federalism, it will be a defunct document.

Jha is an advocate at the Supreme