The positive aspect of the new constitution, from the Madhesi point of view, is that it is going to institutionalise republic and federalism. However, many other aspects of the new constitution are more regressive than the Interim Constitution of Nepal 2007. Out of all its deficiencies, the most notable one concerns the issue proportional representation or inclusion in all organs of the state.

Despite opposition from the Madhesis, Janajatis and women, the drafters of the statute retained Article 283. This provision—which mentions that only citizens by descent can hold top executive posts such as those of the president, vice-president, prime minister and the chief justice, chair of Upper House, speaker of the provincial assembly and chief of security agencies—is an example of how the state seeks to place Madhesis in a subordinate position. In addition, Article 11 (6) also specifically aimed at limiting the rights of Madhesis.

Even so, the contention on the delineation of boundaries can still be resolved if the three big political parties—Nepali Congress (NC), CPN-UML and UCPN (Maoist)—show magnanimity and farsightedness. They need to be ready to reach a compromise with the protesting Madhesi and Janajati forces and in particular, the Tharus. One way to address the contention over federal boundaries in the Madhes would be to include—Morang and Sunsari—in Province 2 and form another province in the plains including districts from Nawalparasi to Kailali and be called Tharuhat Pradesh. Doing so would respect the second point in the 8-point agreement and sixth point of 22-point agreement. It would also respect Article 138(1) of the Interim Constitution which guarantees an autonomous Madhes state.

But given the stubbornness of the top leaders, the Madhesis feel that they would have to either surrender to the major parties or should continue fighting for their dignity and rights.

Electoral constituencies

The new constitution will not address the agendas of the Madhesi parties because they are demanding the implementation of the past deals such as 22-point and eight-point agreements. Both of these agreements mention the delineation of election constituencies based on population in the Tarai. This demand has already been insured in Article 63 (3) of the Interim Constitution. Initially, there were two criteria for the delineation of election constituencies in the Interim Constitution—geography and population—but after the Madhes Movement, it was added that the Madhes would have constituencies in accordance to its population. As more than 50 percent of the population live in the Madhes, the amendment in the Interim Constitution ensured that more than half of the first-past-the-post election constituencies will be in the Tarai. But Article 84 (1A) of the new constitution just mentions ‘population’ and ‘geography’ without mentioning the specific term “population basis in Madhes”.

The refusal of the big three parties to  accept the population as the main criteria for the delineation of constituencies means that the Madhes will have less representation in the House of Representatives. So, the best solution would be to give continuity to the Interim Constitution.

Article 86 of the new constitution further states that all the provinces will elect eight members to the Upper House of Parliament through direct voting. The government will then nominate

three 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 16 representatives from the region in the Upper House as opposed to 40 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 based on the province’s population similar to the Indian constitutional provisions.

Additionally, Article 281 (12) states that the delineation of the constituencies will be done in every 20 years.

This is against the Article 154 (A) of the Interim Constitution which states that the constituencies will be demarcated in every 10 years, which is more practical and logical.

Issue of inclusion

Worse still, Article 42(1) only ensures the inclusion including of the Khas Arya group, the group that has controlled state power since the time of Prithvi Narayan Shah. Under this reservation clause, the Khas Arya group has been mentioned ahead of the Madhesi and Muslim groups that are the most marginalised groups. The 22-point and 8- point agreement signed with Madhesi parties mentioned “proportional inclusion in all the sate organs”. It was ensured in Article 21 of the Interim Constitution. But the new constitution omits the term ‘proportional’ and only stipulates ‘inclusion’. Further, if all the groups are included in the list of those who need affirmative action, and then there would be no need for open competition. This is against principle of reservation policy as well.

Article 11(6) of the proposed new constitution says that foreign women married to Nepali men can get naturalised citizenship as per the existent laws. But we cannot be sure of the kind of laws that will be made in future. They may keep ten years waiting period after marriage. So the phrase “as per the laws” should be removed.

Address the grievances

What the three major parties need to understand is that a technical majority will not help to give legitimacy to the  new constitution in the Tarai. As the Madhesis see the constitution as a continuation of their marginalisation, this could provoke further conflict. The Madhesis are also frustrated because the demands of Karnali, Surkhet and Baglung residents were addressed within three days of the protests. Three people were killed in the protests in the hills. But as far as the demands of the Madhesis and Tharus are concerned, even after death of 45 people and 30 days banda, they have not been heard. This, however, should not mean that people should die to get their demands addressed.

Every single life is precious and the government must understand this.  Unfortunately, its seems as though the state is suppressing the political movement in the Madhes in a planned manner as those that were killed during the protests were found to have sustained bullet injuries above the knee in the head, chest and stomach. People are mourning the death of their loved ones who were killed during the protests and on the other side, the major parties are planning to celebrate the promulgation of the constitution today.

So, without addressing the political grievances of the Madhes and without announcing compensation packages to the victims’ families, the national celebration will further humiliate the Tarai. Most importantly, by keeping a huge segment of the population outside of the constitutional process, the big parties would ultimately reduce the level of ownership of the statute.

Jha is an advocate at the Supreme Court