Delineation of provinces has to be done by parties, not the commission
- Pitambar Sharma
Jul 12, 2015-
The process of constitution promulgation is quickly moving forward as the draft of the statute has been released for public review. This was possible after the four major parties—the Nepali Congress (NC), CPN-UML, UCPN (Maoist) and the Madhesi Janadhikar Forum-Loktantrik—signed a 16-point agreement last month. The deal agreed to federate Nepal into eight provinces but postponing two key issues-naming the province and boundary delineation. This has drawn immense criticism from the opposition parties, especially the Madhesis. Pitambar Sharma, a noted scholar, spoke to Akhilesh Upadhyay and Dewan Rai about the problems in the draft, issues that need to be amended and the long-term consequences of not respecting the sentiments of the marginalised groups in the constitution.
Will we have the new constitution within the next few weeks as major parties are now saying?
We may have a document but I am not sure whether the draft will serve its purpose of ending the existing discrimination and discontent stemming from the marginalisation of the disadvantaged people.
What are the reasons for the doubt?
It is not just a constitution, but a document that reflects the historic changes brought about by the Jana Andolan II. It is the constitution of the Federal Republic of Nepal. This constitution should reflect this reality. It should give people hope. This is a special document and seeks to chart the course for our future. However, the draft constitution does not embody these larger aspirations. It instead maintains the status quo in many ways. To give an example, how is it even possible to have federalism without deciding on the federal units?
So what could the point of compromise be for the demarcation of provinces?
The Congress, UML and UCPN (Maoist) have publicly expressed their commitment for change. They have reached a broad agreement on federalism and carving eight provinces based on identity and capability. Now, the compromise should be on the details. The discussion should be on how the Village Development Committees (VDCs) are to be included in provinces. We want a democratic system. We are not categorising first class and second-class citizens. There are Chhetris, Bahuns, Tharus and other communities in the Madhes as well. Maybe we can name the districts from Nawalparasi to Kanchanpur as Tharuhat. What matters is not the name but whether the system we set up discriminates against certain people or not.
How exactly does the draft constitution fail to reflect the aspirations of the people?
It is abstract in many ways. It mentions eight provinces but without demarcation. The current disagreement among the parties concerns Jhapa, Morang and Sunsari districts in eastern Tarai and Kailali and Kanchanpur districts in the western Tarai. We could include the land upto the Chure hills in the Pahad, leaving the rest for the Tarai. If we create a province from Parsa to Jhapa, it creates a situation wherein the Madhesis and Pahades have to work together, which is good for the nation. It is important to have a dialogue between the Madhes and the Pahad. However, if we create a province from Parsa to Saptari, the Madhesis will not need to dialogue with the Pahade population. Madhesis will enjoy extreme majority in the province. Both are not good. If we look at population, Jhapa, Morang and Sunsari have 2.4 million out of the eight million population in the Tarai. Sixty-five percent of the people in the three districts are Pahades. Likewise, Madhesis make up 70 percent of the population in districts extending from Parsa to Saptari. Instead of discussing these facts and taking a political call, political parties have conveniently passed on this responsibility to the federal commission.
Is demarcation a political issue? You are essentially saying the commission should not get the mandate to delineate the provinces?
Absolutely. I doubt anyone with integrity will be interested to be in the commission just to work on already agreed agendas. The expert body could be required to finely delineate the borders between VDCs, for instance, or to decide on the little details when it comes to demarcation by rivers and so on. But the larger contours of provinces have to be decided politically; it is a political issue. We already have two reports on delineation by expert teams. But the political parties did little to internalise its content and take a political call. This is an extreme of case of unaccountability and irresponsibility.
So where does that leave us? On the one hand, fundamental issues of the constitution are yet to be settled and on the other, there’s the 16-point agreement and parties are saying they are close to promulgating the constitution.
The positive thing about the 16-point agreement is that the constitutional stalemate has been broken. This potentially paves the way for the constitution. Still, there is a lot of scope to amend the draft constitution. Its language needs to be fine-tuned for clarity. For instance, the third paragraph of the Preamble includes all the words that came into existence and have been part of the discourse in the last six years. But it does not talk about how we are going to operationalise them. For that, you have to redefine the forms of government and the electoral system. The primary reason behind the current discontent of the marginalised groups is because they want access to and representation in the state. The new constitution should ensure their access to state resources by reforming the system, not continuing with the status quo.
If that’s the case, how to you read the motivation of the major parties in bringing out the current draft constitution?
The ruling class does not want to loosen its grip on power. They have control over the forms of government and the development processes and outcomes.
What will the consequences be if the current draft is endorsed without major changes?
If passed without amendments, this document will give continuity to status quo.
For instance, with regards to proportional representation, it should adopt the mixed member proportional system. If we cannot elect a direct president, then we should go for a reformed parliament with certain conditions. A directly elected executive is desirable in a country with diversity so that the voters do not feel out of place. If we continue with the same old system, the leaders who occupy the top posts will remain there forever.
This constitution seeks to maintain the status quo by retaining the same old system of representation and same old local bodies. The centre, province and local bodies would suffice but there is now a provision for districts even though we know that these districts are not scientific. We have 4,000 VDCs which can be brought down to 1,000 easily. In fact, the current idea of a commission to demarcate federal units is similar to the one envisaged by king Mahendra back in 2018 BS. The political leadership seems to be unwilling to face the hard reality head on. But you have to confront it one day because this is where the crux of the problem lies. We live in different times.
What are major changes that could still be incorporated in the new constitution in order to accommodate the concerns of a larger population?
It was Madhes that pushed for federalism. This time, the Madhesis are dissatisfied with the process, not the eight provinces per se. I don’t understand what is wrong with demarcating provinces now. This draft constitution does not want to strengthen local bodies. Madhesis and Janajatis want the decision-making power to reach the provincial level. The stronger you make the local bodies as well as the local communities the stronger will be the roots of participatory democracy. Federalism is required to strengthen participatory democracy. Democracy begins from the lowest level. The more power you devolve to the local bodies, the lesser the powers above can dictate you. Federalism does not mean creating eight Singha Durbars. People want the government to be near them and the one closest to them is the local government.
Provincial delineation is desirable but there is another school of thought which argues that the constitution is an evolving document and the fight for strong federation could be incremental.
That’s fine but there has to be an agreement on the fundamentals of delineation. How
can you call it federalism without delineating the federal units? Besides, there is a Supreme Court interim order to delineate the provinces first. There could be different interpretations of this order but you cannot defy the Supreme Court order. What will happen to the rule of law if the government defies the Court?
Are you arguing that the constitution without major amendments could invite further conflicts instead of ending them?
Definitely, the conflict may not be big initially but you sow seeds of conflict out there; it will germinate over time. We have seen it happen before.
How can we address the issue of the Supreme Court order?
Vacate it. It is one thing for the Constituent Assembly to follow the Interim Constitution but if it is everything, why draft another statute? The Interim Constitution is a morally and ethically binding document for the CA but is not legally binding as we are drafting a new constitution.
How do you explain the political backlash against the court order?
Because of conservative forces. The result of the 2013 CA elections was interpreted as the defeat of progressive forces and a ticket to resurgence of conservative forces. Some people would like to forget the history of Nepal. Let’s talk about decentralisation. We started talking about decentralisation since the 6th Five Year Plan. At least eight commissions formed for decentralisation until the Local Governance Act was formed in 1991, which unfortunately ceased to function after 18 months. One lesson we learnt from it was that a unitary state does not actually devolve power to local bodies. That is why we need a new form of government which will force us to decentralise. Federalism is that structure.
Are you saying that the conservative forces have over-read the mandate of the second CA elections?
Yes. If you look at the total vote, there is not much difference (between winning and losing political parties). We have to interpret this subtlety. What is interpreted is the number of candidates who won and structure of the CA. Even those who were elected under the PR system are those who tow the party line.
Published: 13-07-2015 07:38