The first draft of the constitution has met with widespread protests from the Madhesis, Janajatis, women, Dalits, Muslims and other marginalised communities.  Against this backdrop, the Constitutional Political Dialogue and Consensus Committee (CPDCC) Chair Baburam Bhattarai held talks with Madhesis, indigenous nationalities, women and other marginalised groups a few days ago to know their views on the draft constitution. After the talks, the participants were hopeful that the CPDCC Chair would do play a proactive role to protect the interests of the marginalised communities. 

But when the time came, Bhattarai did not fight for the rights of the marginalised communities. As far as CPDCC’s latest report is concerned, it fails to mention the word Madhes uprising in the preamble of the constitution. And though the terms ‘federalism’ and ‘secularism’ have been mentioned in the definition of the state, ‘secularism’ remains underlined which means that the parties could drop the word from the draft.

Same old

Further, although the ‘and’ provision of the citizenship clause has been replaced with the ‘or’ provision, it does not make any difference as the provision which states that the children of Nepali women married to foreign men will get naturalised citizenship remains unchanged in the CPDCC’s draft Article 12(2).

The word ‘Nepali origin’ coined by king Mahindra also remains unchanged in the citizenship clause that proposes to grant citizenship to Non-Resident Nepalis.  The word ‘Khas Arya,’ ‘workers’ and ‘farmers’ were not removed from the article that ensures social justice for marginalised communities. This effectively means that reservations do not hold any meaning. 

The six-province model is not very different from the existent five-development regions formed during the Panchayat era. The Tharu community of the Far-West sacrificed their lives during the Maoist insurgency for their rights. Still, Kailali and Kanchanpur—where Tharus have been living for centuries—is now part of a hill province. This implies that Tharus will continue to face problems of identity and autonomy. Thus, the Bhattarai led CPDCC has further victimised the marginalised communities. 

Federal problems 

Further, one can understand why parties locked horns over Jhapa, Morang, Sunsari and Kailali districts,  but there was no dispute over Nawalparasi, Rupandehi and Kapilvastu. Even so, these Tarai districts too have been included  in a hill province. 

Earlier, the Madhesis and Janajatis including Tharus, protested against the 16-point agreement among the four parties—the Nepali Congress, CPN-UML, UCPN (Maoist) and Madhesi Janadhikar Forum-Loktantrik. The six-province model has now provided another reason to protest.  Tharus, Madhesis and the residents of Karnali zone have hit the streets. Residents of Baglung have also opposed the division of their district. These political agendas must be dealt with politically. If the state uses security agencies to silence the voices of the marginalised communities it could instead end up fueling protests across the country and the situation may go out of hand. 

It seems as though the ruling class is not taking the possible reaction of the Madhes regarding the six-province model seriously. This model proposes to carve Madhes into five provinces mixing areas in the Madhes with hilly areas. But Madhesis have long been arguing that the north-south division of the country would make Madhesis a minority in such provinces. Ensuring self-rule of the dominant nationalities is the  basic principle of federalism. The six-province model, it seems, is not based on any principle of federalism. 

It must change 

It is, therefore, necessary that the CPDCC report is amended to address the concerns of Madhesis, Janajatis and women. The report has not addressed the Madhesis’ concern of representation by population as the four parties’ decision to divide the country into 165 constituencies on the basis of population and geography stays. There should be a guarantee of one seat for each province in the Upper House and the rest of the seats on the basis of population as is the case in India. But this has not been mentioned in the CPDCC’s report. The new agreement between the four parties says that each province will send eight representatives to the Upper House including three women, one Dalit and one differently-abled person which is a welcome change. Similarly, the president will nominate three members to the Upper House. With regard to the Dalits, the word proportional inclusion has been inserted, which is a good thing. 

The provision that says that the president and the vice-president will be from different community or gender is also a positive development.

What is worrying is that proportional inclusion has not been guaranteed in the judiciary. even as the parties have agreed to recruit 60 percent of district court judges through open competition. As the status of districts as administrative units is currently disputed, with some parties still seeking to retain the old structure of districts, it would be better to call them local judges instead of district court judges.

The new deal only states that appointments in the constitutional bodies will be done on the basis of inclusion. However, it should have been proportional inclusion instead. 

Additionally, there should be two provinces in the Tarai: one extending from Jhapa to Parsa and the other extending from Nawalparasi to some parts of Kailali. Similarly, the provinces in the hills must ensure the identity of two dominant groups.

The current six-province model is no different from Panchayat’s five development region. The CPDCC report therefore is against the people’s aspirations and their feedback and must be corrected.

Jha is an advocate at the Supreme Court