The government has been making preparations to table a constitution amendment proposal in Parliament within this week. Madhesi parties were opposing some of the constitutional provisions even before the statute was promulgated and have been demanding constitutional amendments. Dewan Rai and Apekshya Shah Rana spoke to Dipendra Jha, an advocate at the Supreme Court and a Madhesi activist, about the Madhesis' reservations about the constitution, their demands regarding constitutional amendments and the disputes over provincial boundaries and citizenship provisions. Jha argues that a numerical majority vote does not guarantee a constitution’s acceptability and that successful implementation of the constitution requires all the political forces to be on board.

How justified is the continued opposition to the constitution that was endorsed by 90 percent of the Constituent Assembly members?

We cannot just look at numbers and numeric strength when it comes to a document like the constitution. Formulating a constitution is not about endorsing it by a majority, but accommodating the concerns of all the people living in a state—even those without representation, like the Rautes in the case of Nepal. We missed this point by merely focusing on a consensus model. Yes, the constitution was endorsed by 90 percent of the lawmakers, among whom there were Madhesi representatives from the the UML, the NC and the Maoists. But we need to realise that the Madhesi lawmakers voted in favour of the constitution only because they were assured that it is a flexible document that will be immediately amended and two provinces will be created in the Tarai along with proportionate representation accommodating Madhesi interests. If these lawmakers are taken out of the equation, we are no longer left with 90 percent, not even a two-thirds majority. Even if 90 per cent lawmakers voted for the constitution, immediately after its promulgation, five lakhs people took to the streets and the Madhesi lawmakers were not able to visit their own constituencies. This means people had withdrawn their lawmakers’ right to represent them. So the oft-repeated argument of a 90 percent vote only has numerical—and not substantive—value.

How did the undeclared Indian blockade play out following the constitution’s promulgation?

The process of constitution-drafting was wrong from the very outset.  The Madhesis were agitating even before the constitution’s promulgation, and the Madhesi parties had boycotted the process. The day the statute was endorsed, if Kathmandu was celebrating, people in the Madhes were mourning the death of protesters. The constitution has the blood of 56 Madhesis and Tharus on its hands. The political parties should have waited for a few days more and made attempts to take the Madhesis on board. And the only way we can correct the wrongs of the past is through amending the constitution, which once again gives an opportunity for the Madhesis to take ownership of the document.

The blockade which took place was unfortunate regardless of who was behind it. But we cannot ignore the circumstances under which the Madhesi people resorted to such a desperate measure. The security forces were unlawfully targeting people, and despite the Supreme Court’s order to shoot protesters below the knee, 80 percent of the victims were shot in the head or the chest. So people in the Madhes felt insecure. Second, although the protests in the Madhes were going on for more than 15 days and the people were dying, Kathmandu did not heed their grievances. So people had this perception that they will not get attention unless life in the Capital was disrupted. But whatever the reasons, the blockade cannot be justified.

Would you agree that the country has witnessed deep societal polarisation due to the blockade?

We have never seen the degree of polarisation we saw during and after the blockade. The constitution’s promulgation despite protests and deaths in the Madhes alienated the Madhesis. Many of them began to question if they even belonged in the Nepali state. The current Madhesi generation has now witnessed blood and violence, which ignited a lot of grievances among them. They may eventually get over it, but it will take at least a decade or two. And people in the hills became more insecure of future blockades or separatist movements. So in the Madhes, we need to work towards removing people’s sense of alienation, and in the hills, we need to make efforts to reduce the fear psychology. But no one seems to be making such efforts.

Then again there are forces that are exploiting this polarisation to generate fear about Madhesis being Indians and wanting to take over the country. Similarly, a constitution amendment proposal was recently leaked to the media, which drew much criticism. Attempts are being made to convince the public that a constitution amendment is not necessary. But the statute cannot be implemented without amending it. Any attempt to fuel polarisation should be checked.

What are the major demands of the Madhesis in regard to constitutional amendments?

Federal demarcation is one of the major issues for the Madhesis. The political parties had agreed on eight provinces in the 16-point agreement; in the first draft of the constitution, six provinces were envisaged. And following the agitation in places like Surkhet and Rukum, again seven provinces were proposed overnight. There was no convincing explanation for changing the numbers. The Madhesis simply want a federal demarcation according to the interim constitution and past agreements that the state had signed with them.

If you look at the present provincial boundaries, Province 2 is the only Madhesi state. Jhapa, Morang, Sunsari are in Province 1 as a majority of hill-origin population resides in those districts. But in west Tarai, Kapilvastu, Nawalparasi and Rupandehi, where a majority are Madhesis, have been joined with hill districts. Why this double standard? They are making the hill population secure and the Madhesi population insecure. If the discourse is that we need to keep the hill and Madhes districts together, why not put Jhapa, Sunsari and Morang in Province 2?

The second issue is about the citizenship provision in the constitution, which discriminates against women and the issue of naturalised citizenship acquired on the basis of marital relations is also a concern. The third issue is about language. And the fourth issue is about proportional representation in the Upper House. All the provinces get to send seven members to the Upper House regardless of their population size, which is unfair.

What can be the middle ground to resolve the issues of demarcation?

In Kathmandu, we can feel the scepticism among the leaders regarding federalism. But federalism is the core value of the new constitution whose every chapter is guided by it. We are now a citizen of a federal democratic republic. On the one hand, the constitution’s implementation is being prioritised, while on the other, the parties are sceptical about federalism. All parties need to internalise the fact that if the constitution is to be implemented, the country has to be federated.

Given the current composition of Parliament, the possibility of the Madhesis, Tharus and Janajatis getting the type of federal structure they want is very slim. Still, though fringe forces, their minimum demands should be met. In the west, areas from Nawalparasi to Bardiya need to be brought down immediately, and the State Restructuring Commission should settle the issue of disputed districts like Jhapa, Morang, Sunsari and Kailali. For this, the head of the commission needs to be a knowledgeable and credible person, and approved by all the parties. For a start, all the parties need to acknowledge the disputes and the concerns of the Madhesis.

All countries have certain norms that one needs to abide by to get naturalised citizenship and what their entitlements will be. So what are the Madhesi reservations about the naturalised citizenship provision?

The citizenship provision in the new constitution clearly discriminates against women and this is one of the major reservations of the Madhesis. In conferring citizenship by descent, the provision “father and mother to be Nepali” has replaced “father or mother”, which was stated in the interim constitution. This provision is unfair and has raised international concerns.

According to the present constitution, major government office-bearers have to be citizens by decent. None of the past constitutions have such a provision. What is the rationale behind the change? And Madhesis have serious reservations about it because almost every Madhes-household has a daughter-in-law from India who only gets naturalised citizenship through marriage.

The Nepal government grants naturalised citizenship under two categories—general naturalisation and naturalisation through marriage.  The issue of general naturalisation is of no concern to the Madhesis. But naturalisation through marriage is an issue as in our society when a woman gets married, her descent changes to her husband’s decent and she takes up his name. By this logic, she should be given citizenship by decent through marriage. How it is fair that she is treated as a second class citizen when she has left her family and when her child will be granted citizenship by decent? This way, no girl from India would want to get married to a Nepali boy. This directly violates our cultural rights and it is an attempt to discourage cross-border marriages.

Moreover, the whole of Article 289 concerning naturalised citizenship defies logic. For example, a naturalised citizen can be the home or the defence minister but not the chief of police or the Army. Some other countries do not allow naturalised citizens to hold certain positions like prime minister and president, but no country has a complicated list like ours.