First things first

  • The constitution cannot be an obstacle to finding a progressive solution to political and social problems
- Dipendra Jha

Sep 14, 2016-

The Nepali Congress (NC) and the CPN (Maoist Centre) have given top priority to amending the constitution. Prime Minister Dahal and other top leaders of the current coalition have said that implementing the constitution is number one on their list of things to do; and that holding local, provincial and general elections is the key to make this happen. We all know that the constitution can be implemented only by accommodating the aspirations of Madhesis, Janajatis and other marginalised groups. The erstwhile Oli administration failed miserably on this count. The challenge before the Dahal administration is ensuring that the constitution is amended to address the grievances of marginalised communities. Although the CPN-UML leaders are saying that the constitution is not a document engraved on stone that cannot be changed, they are averse to the idea of amending it. This is partly due to their frustration at being ousted from power. They hope to sweep the seats on the nationalism plank at the next general election.

The ruling parties need to reach a consensus among themselves on constitutional issues and reach an understanding with the agitating Samyukta Loktantrik Madhesi Morcha (SLMM). Once this happens, it will put pressure on anti-amendment forces. SLMM leaders have been rightly saying that the ruling parties should immediately table a constitutional amendment bill. The UML is less likely to support the coalition’s bid to amend the constitution. After the amendment bill is tabled, it will stir debates and discussions and build an environment for its passage. If the constitution is not amended to address the concerns of the agitating forces, they might not participate in the election. If they boycott the election, its legitimacy and that of the government that will be subsequently formed will be questioned. The agitating Madhesi and Janajati forces know that they will not be able to get all their demands fulfilled, so they should be ready to make a compromise. But this does not mean that the major forces can ignore them just because they are numerically weak in the House.

Identity and rights 

In South Asia, as elsewhere, various factors influence the electoral outcome. It is true that Madhesis and Janajatis won a small number of seats in the last election, but that should not be interpreted as a defeat of the identity, federalism, inclusion and representation causes they have been championing. A political solution to the issues raised by the agitating forces can easily be found if they and the major parties work in the larger interest of the country. Media outlets, the intelligentsia and civil society need to play a proactive role to convince the major parties to make sincere efforts and show magnanimity to find a solution to the issues raised by Madhesis and Janajatis.

I would like to suggest some measures to resolve key issues which I think can be a win-win formula for all. As far as revising the provincial boundaries is concerned, six districts—Nawalparasi, Rupandehi, Kapilvastu, Banke, Bardia and Dang—should be shifted from the hill province they are in now to a Tarai province. Likewise, Kailali, Kanchanpur, Sunsari, Morang and Jhapa districts should be divided as a long-term solution. If not, they can be treated as disputed districts and given the status of union territories. 

As far as representation in the Upper House is concerned, four representatives from each province should be ensured, and the rest can be fixed on the basis of population. On the citizenship issue, the provisions in the Interim Constitution 2007 can be retained as far as the rights of citizens who have acquired citizenship through marriage are concerned. On the issue of local polls, stakeholders need to think about changing the terms of reference for the Local Bodies Restructuring Commission so that it does not undermine the population of Madhes while determining the boundaries of the local bodies. As far as federalism related laws are concerned, the government needs to frame laws to create federal structures including high courts and a federal bureaucracy and police force. The government needs to frame progressive laws to create such structures through a fast-track process. With regard to the judiciary, it should be sensitised on inclusion issues to ensure that its verdicts on inclusion are progressive.

Bring them on board

There are people who say that hurdles exist to amending the constitution, particularly with regard to the revision of provincial boundaries. As the debate on constitutional amendment intensifies, more UML leaders will be expressing such views because they have been doing so on all crucial issues. If anybody believes that any article of the constitution prevents amendments relating to federal boundaries, the wording of that article can be changed or Article 305 can be invoked to remove the constitutional difficulty. The constitution cannot be an obstacle to finding a progressive solution to political and social problems. We also need to expose the forces who cite constitutional difficulties in incorporating progressive provisions in the constitution. The issue of language can be addressed through the Language Commission, and the good thing is that the government has already formed such a body. The government is drafting a bill on the Language Commission which needs to be completed without delay.

Although government ministers had said that the government was likely to table a constitutional amendment bill before the prime minister leaves on a visit to India, that does not look like happening. Therefore, the ruling parties need to form a taskforce to help expedite the bill. Different channels of dialogue should be used to talk to the top UML leaders at different levels. Though they will not easily support the constitution amendment bill at this stage, the discussions will at least expose their rigid position and conservative line.

Jha is a practicing lawyer at the Supreme Court

Published: 14-09-2016 08:24

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