No other term but ‘dismay’ can describe one’s response to New Delhi’s ungenerous reply to Nepal’s democratic drafting of a Constitution through a Constituent Assembly.
The Indian 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. 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
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.
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 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 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. 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.
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
The de facto economic blockade of Nepal by India has resulted in a grave humanitarian crisis in Nepal. The international community including India failed to recognise this crisis and take effective steps to bring it to an immediate end.
The people of Nepal have been struggling to overcome the impact of the devastating earthquake of six months ago. Coming at the heels of such a catastrophe as well as disruptions caused by political unrest in the Tarai-Madhes plains, the extended blockade by India has crippled the economy of Nepal and led to great human suffering. Vital social services have been disrupted, hospitals have run out of essential drugs and supplies, and UNICEF estimates that more than 1.6 million children have been deprived of schooling over a two month period.
All over, industries as well as small businesses are closed and development activities, including construction of vital infrastructure, are at standstill. Tourism has been severely disrupted during what would have been peak season. Employment prospects have diminished nationally, forcing hundreds of thousands more to consider job migration to India, the Gulf and Malaysia.
The fuel crisis caused by the blockade has cut the food supply chain, causing shortages in all parts of the country. It has disrupted transportation at the height of Nepal’s national holiday season, preventing millions from travelling to ancestral homes. There have been many deaths from traffic accidents caused by dangerously overcrowded public transport, with passengers including women, children and the elderly forced to travel precariously on rooftops of buses.
The people of Nepal resent the Indian blockade and disagree with the claim that the obstruction at the border is solely the result of agitation within Nepal. There is ample evidence to the contrary, as observed in the go-slow at custom checkpoints, the refusal by the Indian Oil Corporation as monopoly supplier to load fuel tankers from Nepal, and reports in the Indian press quoting border security Seema Shuraksha Bal officers that they have been asked to impede shipments.
The Nepalis are pained that India, a country that extended such immediate and unstinting support after the April 2015 earthquake, has seen fit to carry out a blockade that has halted the urgent reconstruction efforts that will make people even more vulnerable during the imminent winter season. If the earthquake hurt the Nepali economy to the tune of USD 7 billion, it is estimated that the cumulative loss from the blockade thus far significantly exceeds that amount.
Nepal, a friendly neighbo with deep historical and cultural ties with India across the open international border, is being penalised for something as above-board as promulgating a progressive, democratic, federal and republican constitution through an elected, representative and inclusive Constituent Assembly. Meanwhile, an entire generation of young Nepali citizens, born after the earlier Indian blockade of 1989-90 and harbouring only goodwill towards the neighbour, has been exposed to New Delhi’s harsh action.
Like all other constitutions of the world, the Constitution of Nepal-2015 is not perfect. The leading parties have already introduced proposals to amend provisions in order to address key demands of disaffected groups, including proportional representation in state institutions. The complex matter of provincial demarcation in a country of many communities with cross-cutting demands must be resolved peacefully through political negotiation and democratic constitutional process.
As a sovereign nation-state and a society that believes in due process, Nepal is fully capable of dealing with its internal challenges, including addressing anxieties of its Madhesi, Tharu and other communities through consultation, negotiation and constitutional amendment. The solidarity between the communities of Nepal is strong, and they are capable of managing their interrelationships for greater good without the involvement of external actors.
India’s ongoing blockade goes against the principles of Panchsheel, the spirit of regional cooperation under SAARC and BIMSTEC, the internationally recognised rights of land-locked countries, as well as India’s obligations under the bilateral transit treaty of 1991. The blockade contravenes the UN Convention on the Law of the Sea, to which both India and Nepal are signatory. New Delhi’s actions amount to unilateral coercive measures with serious negative impact on the enjoyment of human rights covered under various UN resolutions.
Millions of Nepalis from mountain, hill and plain, are of the view that India’s action of blockading Nepal cannot be justified under any pretext. This unfortunate step has deepened the humanitarian crisis in Nepal and is unworthy of the leadership role that we know India seeks to play on the world stage.
The international community should have taken all necessary measures to end the humanitarian crisis that the country and its people are facing.