Nepal Constitution: the status of India’s seven-point amendment proposal

Nepal Foreign Affairs, Kathmandu,  Sept. 30 – Although the world is yet to see through the Indian game, Nepalese are under no illusion that India has imposed on them an economic blockade, while lying to the rest of the world that there is no blockade at all. At the moment, India is openly engaged in the game of blackmail. It is threatening to a weakened Nepal everyday:  agree to our certain political conditions, or we strangle you economically. Remember, Nepal is struggling to get better from the devastating earthquake in April this year.

In order to get away, the ‘protesters’ are put forward at the no man’s land of the border between the two countries. They are given food and daily wages by India’s external Intelligence agency RAW and are mobilized by ruling BJP’s sister organization RastriyaSwayamsewakSangh (RSS), which wanted to reinstate the status of Nepal’s Hindu state. In doing this, India has cleverly brewed ‘dissension’ in a section of Nepal’s Madhesi politicians, who claim that their demands were not paid attention by the Government of Nepal and major political parties, who promulgated the new constitution on 20th September,  ratified by an overwhelming majority of 90% of the Constituent Assembly.

The so-called demands were not known to the people of Nepal until the Indian Express newspaper from New Delhi revealed them on September 24, 2015. It said there were seven demands forwarded to Nepal by the Indian ambassador to NepalRanajit Rae, on behalf of Nepal’s Madhesi parties. (www.indianexpress.com/article/world/neighbours/make-seven-changes-to-your-constitution-address-madhesi-concerns-india-to-nepal/)

Well, such a move itself equates to obstinacy since a country cannot really propose the constitutional amendments to another country. India realized this later and to escape from global scrutiny, disownedhaving made such proposal. But Nepal’s political circle was actually pressed to fulfil these demands which the three major parties had refused. To avoid further pressure from India, they didn’t agree to Indian Foreign Secretary S. Jayashankar’s call for the postponement of the promulgation of the new constitution. Then, came the economic blockade.

We have tried to assess the status of these seven proposals in the light of Nepal’s new constitution. It appears that two of them are already in the constitution (see below proposal 1 and 7), two are reasonable (proposal 4 and 6), one is debatable (proposal 3) and two cannot be accepted at all (proposal 2 and 5).

Indian Proposal 1:  In Article 21 of the Interim Constitution, it was mentioned that various groups would have “the right to participate in state structures on the basis of principles of proportional inclusion”. In the new Constitution (Article 42), the word “proportional” has been dropped — Delhi wants it re-inserted.

Article 50 of the new constitution of Nepal already has proportional inclusion arrangement. Saying ‘proportional has been dropped’ is false propaganda. The article says:

“It shall be the political objective of the State to strengthen a federal democratic republican system to ensure an atmosphere where democratic rights are exercised by acknowledging sovereignty, independence and integrity of the country to be of utmost importance; by protecting freedom, equality, property and all citizens through rule of law; by embracing the norms and values of fundamental rights and human rights, gender equality, proportional inclusion, participation and social justice; and by maintaining a just system in all spheres of national life in order to establish a government system aimed at public welfare,…”

Indian Proposal 2:  Article 283 of the Constitution states that only citizens by descent will be entitled to hold the posts of President, Vice-President, Prime Minister, Chief Justice, Speaker of Parliament, Chairperson of National Assembly, Head of Province, Chief Minister, Speaker of Provincial Assembly and Chief of Security Bodies. This clause is seen as discriminatory for the large number of Madhesis who have acquired citizenship by birth or naturalization. Delhi says this should be amended to include citizenship by birth or naturalization.

This is actually regarding the provision of Article 289.See the text of the article below:

Article 289 Special provisions relating to Citizenship of the office-bearers:

 (1) A person shall have acquired a citizenship by descent to be elected, nominated and appointed as the President, Vice-President, Prime Minister, Chief Justice, Speaker of the parliament, Chairperson of National Assembly, Head of the province, chief minister, speaker of Provincial Assembly and chief of security bodies.

(2) For appointment to the constitutional positions, other than those referred to in clause (1), the persons having obtained citizenship by descent, by naturalization or by birth may be eligible.

Status:No country in the world agrees to the foolish ideaas proposed by India. Insistence on this arrangement is propagated by an ulterior motive. Therefore, Nepalalso will not agree on this. Even if its leaders do agree under Indian duress, there will be a backlash. This provision will harm the prospect of Madhesis themselves. And read the second point above, naturalized citizenship is no bar to hold government jobs, take part in political parties and be elected. Make no propaganda please!This is the same in several countries including in India.

Indian Proposal 3: Article 86 of the new Constitution states that National Assembly will comprise 8 members from each of 7 States and 3 nominated members. Madhesi parties want representation in National Assembly to be based on population of the Provinces. This, Delhi says, should be done to address concerns.

Upper House is more an American senate like structure, where states send equal number of delegates indiscriminate to the population. This can be a subject of debate. But the Upper House would be the most inclusive parliamentary body if the constitution is implemented. See the text below and challenge:

Article 86 Formation of National Assembly and terms of members:

(1) National Assembly shall be a permanent house.

(2) There shall be fifty-nine members in the National Assembly as follows:-

(a) Fifty six members elected from an Electoral College comprising members of Provincial Assembly and chairpersons and vice-chairpersons of Village councils and Mayors and Deputy Mayors of Municipal councils, with different weights of votes for each, with eight members from each province, including at least three women, one Dalit, one person with disability or minority;

(b) Three members, at least one of whom would be a woman, shall be nominated by the President.

Comment: Being flexible, parties may still agree to increase the number of representatives for two provinces in Madhes. This is debatable.

Indian Proposal 4:  Five disputed districts of Kanchanpur, Kailali, Sunsari, Jhapa and Morang: Based on the majority of the population, these districts or parts of them may be included in the neighboringMadhes Provinces.

This is another contentious point. Three parties may decide, but this could trigger unrest. The five districts, except for Kailali are among the most peaceful so far. Madhesi parties don’t want a plebiscite. They know huge majority of the people in these districts will reject their idea. Actual Madehsi population, excluding Tharu and Muslims, is less than 5% in these districts. All of them put together, it goes to 39% in Kailai, 23% in Kanchanpur, 3% in Jhapa, 11% in Morang, 13% in Sunasari. But Tharus have wanted a separate state, not to be identified as Madhesis. Out of 31 elected representatives from these districts, 26 have supported the constitution while 5 have supported the Madehsi demands.

Indian Proposal 5: Article 154 of the Interim Constitution provided for delineation of electoral constituencies every 10 years. This has been increased to 20 years in Article 281 of the new Constitution. Echoing the Madhesi parties, India wants this restored to 10 years.

Comment: This can be accepted. Nepal holds its census every ten years. The population change can be incorporated in reviewing the electoral constituencies. But mind you, India also reviews its constituenciesin longer 20 years. One can just laugh about it.

Here is a fact: after 1976, India reviewed its electoral constituencies in 2002 and then in 2011. The review process there is far more complicated because it requires a law to be passed by the parliament every time.

Indian Proposal 6: Article 11(6) states that a foreign woman married to a Nepali citizen may acquire naturalised citizenship of Nepal as provided for in a federal law. Madhesi parties want acquisition of naturalized citizenship to be automatic on application. This also finds favour with Delhi.

This also can be accepted in case of no dual citizenship. But compare this with the Indian Citizenship Act, made as per the Constitution of India:

Only the children born of the parents who are citizens of Pakistan and Commonwealth countries are subject to obtain the naturalized citizenship of India. Foreign woman married with an Indian citizen must prove continuous stay of 5 years in India and must abandon the citizenship of her country of origin to be eligible to obtain the naturalized citizenship of India. Challenge this.

Indian Proposal 7:  Election constituencies be created on the basis of population

Article 286 (5) has this provision already in the constitution. The text says:

286.(5) The Constituency Delimitation Commission, while delimiting the constituencies in accordance with this Article, shall, based on population and geography, maintain as far as practicable the equal ratio or proportionality between geography, population and the number of members.

(6) While delimiting the constituencies pursuant to clause (5), attention shall be paid to population density of the constituency, geographical conditions, administrative and transportation proximity, and the communal and cultural characteristics of the people living in such districts.

Compare this with India and challenge.

For the Indian propaganda tools, yet to read their own constitution, Nepal’s provision matches with the Article 81 and 327 of the Constitution of India. Similar arrangements are made in the Constitution of South Africa as well.

Final words: Nepal is a country created together by Janajati which includes the Tharu/Rajbanshi/Tajpuriya/ Meche/Dhimal, and Chettri communities since unification while Bahuns were mostly at the advisory positions of the state. British India saw that the Janjatis were transforming and adopting Hindu values from Chhetris and Bahuns. To Christianize the Janjatis as per the order of Bible(Bible says a true Christian must help convert those who are yet to know the name of Christ. Once the last man on the earth accepts Christ as the savior, he will come to the earth again for salvation. So for Christians, conversion from other religions is an institutional practice), they started creating a narrative of rift between the Janajatis and Chhetri/Bahuns.

It happened rapidly in the last forty years in the investment of the West. Now India is using the Madhesi narrative, with an all-out effort to link this with the Janajatis. The unity between Upendra Yadav and Ashok Rai tries to validate this. Recently, countries like Switzerland and Denmark and also the UN have supported hugely for the social engineering in Madhes. Nepal government is weak. Top officials and many politicians have also proven themselves as sell-outs.

This is a policy to create rupture at the very foundation of the unifying elements of Nepal. Nepalese must see this before it is too late.

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