Nepal’s federalization process and the challenge of accommodating minority demands

On 8 January, Nepal’s Government tabled a bill in Parliament for the second amendment to the September 2015 Constitution brought with the aim of addressing the demands of agitating groups. However, the bill faces daunting challenges for adoption by the Parliament, mainly due to resistance from the opposition parties, including the main opposition CPN-UML. They have been calling the bill “anti-national” and had been obstructing the House since it was registered in November last year.

The amendment bill primarily deals with aspirations of ethnic Madhesis and Tharus on the delineation of provinces in the newly established federal system. The two groups living in the southern plain region of Nepal, where more than half of total national population currently resides, share close geographical and cultural affinities with people on the Indian side of the border. These and other marginalized indigenous and minority communities have strong historical grievances of discrimination and unfair treatment by hill caste groups that have historically dominated Nepalese state structures. Accordingly, provincial autonomy under the new Constitution is one of the main aspirations of the marginalized groups in Nepal’s recent history. The issue gained prominence with the end of decade-long Maoist conflict in Nepal in 2006 leading to their entry into competitive politics.

Madhesis and Tharus have a clear majority in Province 2, which consists exclusively of plain districts, among the 7 provinces established under the new Constitution. However, the indigenous Tharu population in southwestern Nepal has been divided into three gerrymandered provinces. This is considered a deliberate attempt to prevent Tharus from coalescing into a political majority and is also the case in indigenous Magar heartlands in mid-western Nepal, which has become the most contentious issue in the federal debate lately.

Madhesis make up around one-third of Nepal’s total population while Magars and Tharus are the largest and second largest indigenous groups with 7% and 6.5% population shares respectively. Madhesi and ethnic parties and indigenous groups’ bodies have consistently opposed the federal structure of 7 provinces. They have been demanding federal delineation on the basis of identity and economic capability in line with the 11 or 14 provinces model, which had majority support in the first Constituent Assembly. Such delineation would also provide those groups with provinces in which they could form a dominant or strong political majority.

Unfinished Constitution and political realignments

In the final months of the Constitution drafting process in 2015, Madhesis and Tharus in particular, among other groups, engaged in violent protests against what they considered as arbitrary provisions regarding federal demarcation, inclusion and citizenship. Ignoring their concerns, the three largest political parties - Nepali Congress (NC), CPN-UML and Maoists - pushed through the adoption of the Constitution in September 2015 amid boycott by most Madhes-based parties. This only fueled more protests in which India sided with the agitating Madhesis while Nepal’s northern neighbor China welcomed the new Constitution. After exhausting its diplomatic efforts, India supported Madhesi protests that took the form of blockade against Kathmandu in protest of the new Constitution. More than 50 people, including security personnel, lost their lives in clashes during the protests while the blockade caused massive shortage of fuel and other goods and crippled life across the country already shattered by the April 2015 earthquake.

CPN-UML Chair KP Oli, elected as Prime Minister in October 2015 as per earlier agreement among the major parties, made unsuccessful efforts to import fuel from China while the political alignment began changing towards the Madhes-based parties. Thus, despite Oli’s publicly pronounced rigidity against Madhesi and ethnic concerns, Nepal’s parliament in January 2016 made the first amendment to the four-month old Constitution. The amendment provided for a principle of proportional inclusion of all ethnic groups in state bodies and increased the number of electoral constituencies in the southern plain region on the basis of population. India welcomed the amendment though it failed to address the core demand of federal re-demarcation for the establishment of two separate Madhesi provinces, leading to the continuity of low level protests. Nonetheless, this ended the five-month blockade and led to realignment of political parties over the next months.

In July 2016, the Maoists pulled out of the CPN-UML-led governing coalition to form a new alliance with the Nepali Congress (NC) under its new leader Sher Bahadur Deuba. As a result, PM Oli resigned ahead of a parliamentary no-confidence vote. The Maoist party leader Prachanda blamed Oli for being not liberal enough in addressing the demands of the Madhesi, indigenous and other minority groups while it was widely believed that India had a role in the government change. The NC-Maoist coalition won the support of Madhes-based parties to elect Prachanda as a new Prime Minister in August after signing a three-point agreement with the Madhes-based parties, including a commitment to redraw federal boundaries.

The proposed ‘incomplete’ amendment

After months of negotiations and delays, the bill for the second amendment to the Constitution was finally tabled on 8 January. Besides the key issue of federal boundaries, the bill deals with demands of Madhesis and other groups protesting the new Constitution in relation to representation in the Upper House of the Parliament, citizenship and recognition of native languages.

The bill proposes re-demarcation of Provinces 4 and 5 in western Nepal to transfer the hill districts from the latter to the former. Province 5 will thus consist of only plain districts to make it the second such province in the south after Province 2. The Government also decided to form a Federal Commission as provided under the Constitution to resolve other disputes regarding provincial boundaries. There are major pending disputes mainly regarding the demarcation of three plain districts in Province 1 and two plain districts in Province 7. These districts include the electoral constituencies of Oli and Deuba respectively and have higher proportions of populations of hill caste groups than Madhesis and Tharus. Thus, though the amendment seems to have partly recognized Tharus’ demand by proposing Province 5 that includes districts with demographic advantage for them, it leaves out the two western districts in Province 7, which have a major Tharu population. This is considered a glaring display of political dishonesty to suit Deuba’s interests like in the case of three districts in Province 1 that concerns Oli.

While the Constitution provides for equal number of representatives from each province, the amendment bill proposes the distribution of 35 of the 56 seats in the Upper House among the provinces on the basis of population after three representatives each from the seven provinces are selected to include a woman, a Dalit and a person with disability or a minority. Nonetheless, this falls short to the aspiration of protesting parties for a fully proportional representation system based on population in all state structures, leading to continued opposition from the Madhesi. On the other hand, the major parties contend that since the Lower House will be elected exclusively on population basis, the amendment will provide adequate representation from smaller provinces in the Upper House so that these provinces are not completely ignored.

On citizenship, the bill proposes that foreign women married to Nepali men can obtain naturalized citizenship after initiating the process to renounce their citizenship. This still does not address the issue of exclusion of naturalized citizens from certain State positions, which particularly affect the Madhesis because of their frequent intermarriage across the Indian border. Discussion on the issue does not even seem to be on the table currently.

Finally, with regards to recognition of languages, the amendment suggests listing all the mother tongues of Nepal as official languages in the schedule of the Constitution as per the recommendations of the Language Commission. This also relates to recognition of Hindi as an official language, on which the Madhesi parties have varying demands while other parties are not in favor of such recognition of Hindi. Nonetheless, federal re-demarcation remains clearly the critical issue of the amendment bill.

Constitutional and political obstacles

Under the Constitution, a majority in the relevant provincial assembly, a 2/3 majority in both houses of Federal Parliament, and afterwards the President must approve amendments relating to provincial boundaries. The main opposition party CPN-UML has vehemently objected to the amendment proposals through street protests and obstructions in the Parliament since the day the bill was registered. It claims the bill is ‘anti-national’ and has been brought about at the ‘behest of external forces’ pointing towards India, alleging that the bill violates the constitutional provisions for federal re-demarcation and if the Tarai plains are completely separated from the hill regions, it could ultimately lead to secession of the entire Tarai belt.

That is despite the fact that the proposal is similar to the one the party had agreed upon with the NC earlier. The resistance of CPN-UML has thus been seen as ‘foul play’ and as usual opposition politics in Nepal to defeat the ruling government as it might be impossible to pass the amendment without its support. Meanwhile, the continued street protests have affected normal lives, in some districts of Provinces 4 and 5 in particular, for weeks with clashes between protestors and security personnel. Six other fringe and particularly anti-federalism parties have supported CPN-UML in opposing the amendment. Those parties together control more than one-third of votes in the Parliament, with 175 elected seats of CPN-UML alone. At the same time, Rastriya Prajatantra Party (RPP), the fourth largest party in the Parliament with 37 seats, has also denied supporting the bill without revision on the proposed provisions for provincial re-demarcation.

On the other hand, the bill has also failed to satisfy the agitating Madhes and ethnic-based parties, for whose sake the amendment was introduced. The alliance of Madhes-based parties, United Democratic Madhesi Front (UDMF), had earlier refused to take any ownership of the bill saying that the government had unilaterally proposed the amendment without addressing their demands for provincial autonomy, including in terms of powers,  under a 10-province model, which would also provide Madhesi and indigenous groups with most provinces in which they could form a dominant or strong political majority in terms of population. The group also expressed concerns over the delineation of five plain districts and failure to guarantee equality of rights and status for naturalized citizens and citizens by descent. The UDMF controls around 30 seats in the Parliament

Nonetheless, the Federal Alliance, which the UDMF is a part of along with other ethnic-based parties outside the Parliament, recently decided to support the proposal if the government revises it to address their concerns, particularly on federal boundaries of the five disputed districts. Though the decision indicates a notable shift, it appears that the agitating parties feel that this is the opportunity to get the most from the ruling coalition on their demands while the NC has ruled out any possibility of changing the proposal.

On the other hand, the second largest Madhesi party, Madhesi People’s Right Forum (Democratic) (MPRF-D) with 14 parliamentary seats, has also denied its support for the bill without such revision and CPN-UML’s support. Despite remaining discontent, India has expressed its support for the constitutional amendment process while China has said that it is an internal matter of Nepal.

Challenges for the adoption of the bill remain even from within the ruling NC-Maoist coalition. Though the coalition leaders have expressed confidence in the bill’s adoption, there is dissatisfaction among some of their leaders who have publicly opposed the proposed amendment. They are hopeful that CPN-UML will come around to support the amendment bill. Together, the NC and Maoists hold around 300 votes in the Parliament but are still around 100 short for the amendment.

More importantly, the Constitution requires holding three levels of local, provincial and federal elections by January 2018 whereby the NC, CPN-UML and Maoists have agreed to hold local elections by April-May 2017 (earlier announced for November 2016 under Oli government). While the bills related to local polls were tabled the same day as the amendment bill, issues related to local bodies restructuring also remain whereby the UDMF have demanded delineation of local units to be based on population. The UDMF has also warned of obstructing the elections if held before their constitutional amendments are addressed. Meanwhile, the Election Commission has said that there was no possibility of holding local elections before coming April if the government failed to provide necessary laws by end of January. 

Finally, the bill also faced a judicial challenge as writ petitions were filed at Nepal’s Supreme Court challenging the constitutionality of the amendment bill and seeking the Court’s intervention to prevent its adoption. The petitioners argued that only the Federal Parliament and Provincial Assemblies have the right to change borders and the number of provinces, which was also the claim of the opposition parties. The Court initially requested a written response from the Government on the reasons for the proposed amendment. While the Federal Parliament and Provincial Assemblies are yet to be formed as provided for in the Constitution, on 2 January 2017, the Court ruled that the power to examine and decide on the appropriateness of constitutional amendment proposals lies with parliament, thus paving way for the consideration of the amendment bill. However, it also pointed out that the laws so enacted will lapse with regard to that province or provinces one year after the provincial assembly or assemblies in question are duly constituted.

In the meantime, while the opposition parties remain adamant to protest the amendment bill in the Parliament, PM Prachanda’s reported plan to expand his cabinet in a bid to garner more parties, particularly the RPP and MPRF-D, in favor of the bill also seems unlikely to work with those parties firm on their positions. Hence, unless the CPN-UML supports the amendments to give way to local elections or as part of some shady power sharing deal as in the past, or at least some of the party’s parliamentarians go against their party’s position, the required majority for approval of the bill might not be achieved. In that case, the Madhes and ethnic-based parties are likely to support the bill, considering the amendment is better than nothing. Otherwise, the amendment bill, which might not be adopted, might only amount to a box-ticking exercise for the ruling coalition as per their agreement with the UDMF to move on with their election plans.

Prabindra Shakya is the Founder Chair of Community Empowerment and Social Justice Foundation (CEmSoJ) and engaged in research and advocacy on peacebuilding and human rights, with particular focus on indigenous peoples and minorities. He can be reached at [email protected].