The government condemned the remarks about Nepal’s new constitution made by the European Union (EU) and India in their joint statement with blistering speed. The declaration, issued in Brussels on March 30, emphasised the need for a time-bound settlement of the remaining constitutional issues. It came against a backdrop of the six-month-long Madhes movement and the four-month-long border blockade. Last Thursday, the Ministry of Foreign Affairs blasted the EU-India statement asserting that the new statute fully reflected the aspirations of Nepalis. If that were so, why did the Madhesis agitate for six months resulting in the deaths of 55 persons including 10 policemen? Why did the government have to make two amendments soon after the constitution was promulgated? The prime minister has publicly said that the outstanding constitutional issues including the demarcation of the provinces will be addressed through an amendment.

Let us look at the two amendments made on January 23. They are a positive step but failed to address the key issues of representation in the Upper House by population and revision of the provincial boundaries. The controversial citizenship provisions were left untouched. They can adversely impact cross-border marital relations as naturalised citizens are barred from holding constitutional posts.

Moreover, children born to a Nepali mother and foreign father cannot become citizens by descent. With regard to representation in the Upper House, all the provinces will send eight representatives each. This means that Province 2, which has a population of 5.4 million, will send eight representatives just as Province 6, which has a population of 1.5 million. How can this be fair and just? Our constitution has adopted a quasi-federalism model like in India but an electoral system like in the US. Why this double standard?

Contingent sovereignty

As far as the references to Nepal’s new constitution in the EU-India joint statement are concerned, this is not the first time that the international community has expressed concern about social inclusion in Nepal. India, the UK, the US and the UN issued similar messages after the constitution was promulgated. Can such references to the constitution be termed as interference in Nepal’s domestic affairs? The EU is one of the major regional blocks that support democracy, human rights and social inclusion around the world. India too, being a democratic country, supports democracy and social inclusion; and there is nothing new in its attempt to back the policy of social inclusion in Nepal.

When Nepal’s democratic forces fought against the monarchy, the world community sided with them. Let us not forget that when Nepal was in the midst of a movement against the monarchy in 2006, the EU called Nepal’s civil society members to speak on its quest for democracy. The EU issued a statement supporting the democratic movement in 2006. As far as India is concerned, it has always supported the democratic forces whether the movement was against the Ranas, Panchayat or Gyanendra. We live in an interdependent world now, and no country can enjoy absolute sovereignty. Human beings are human beings whose wellbeing is a matter of concern for everybody. Can the argument of sovereignty grant a country the power to commit injustice against its minorities?

Everybody should understand that the principle of absolute sovereignty does not apply anymore. No state in the world can escape being criticised for denying democracy and social justice to its own people. Had the world community not spoken out against injustice, we would not have seen many dictatorships changing into democracies. And neither could we have seen the socio-economic rights of human beings, particularly of the marginalised communities, being expanded around the world. Whether it was about democracy in Burma or elsewhere, the world community spoke about it and should continue doing that. In these modern times, the traditional principles of sovereignty and non-interference are eroding. In fact, it can be legitimately suspended to address unchecked and unpunished violations of human rights and fundamental freedoms. Our new constitution has imposed one community, the Khas-Arya, as a constitutional community, thus creating psychological fear in the minds of other communities and leading them to disown the statute.

Tyranny of the majority

The ruling parties have been saying that the constitution was framed with an overwhelming majority, and so no one should question it. My question is this: Can a 90 percent majority allow injustice to be done against the remaining 10 percent? Are there not people like Bimalendra Nidhi and Amresh Kumar Singh among the 90 percent of the Constituent Assembly members who endorsed the constitution but want amendments made to it? If there was no need for any amendment to the constitution, why did the then prime minister Sushil Koirala table amendment bills in Parliament? Why did Deputy Prime Minister and Foreign Minister Kamal Thapa give a four-point roadmap to India? The point I want to make here is that when there are constitutional issues in Nepal, it is natural for India or any other foreign country to express concern about them. This does not amount to interference in Nepal’s affairs because no country in the world commits injustice against its own people in the name of sovereignty and non-interference. We should not forget that when veteran Indian leader Chandra Shekhar boosted the morale of the democratic fighters at Chaksibari on the eve of the 1990 People’s Movement, Nepali leaders were all praise for his speech.

Let us talk about the very recent developments. The government and the leaders of the major parties should think carefully before commenting on such references. The government must realise that there are constitutional issues, and the Madhesis are not happy about some constitutional provisions. If the government tries to link the issues of empowerment of the Madhesis with India and raise nationalism issues, it will only polarise Nepali communities. And as long as Nepal remains polarised, it will also attract the attention of the international community. If the government tries to play one foreign power against another over domestic issues, it will only complicate the settlement of constitutional issues.

Jha is a practicing lawyer at the Supreme Court