Problems with first amendment made to Nepal’s new Constitution

• By  Adv. Dipendra Jha

Agitating United Democratic Madhesi Front (UDMF) did not take part in the constitution amendment process. The major parties and the government also failed to bring the UDMF on board during the constitution amendment process.  Hence, the first two amendments — delineation of electoral constituency and proportional inclusion —  made to the new constitution lacks the ownership of the UDMF.

Amendment on delineation of electoral constituency

The amendment bill tabled by NC leader Minendra Rijal that was endorsed by the Parliament on January 23 did not maintain the spirits of the Interim Constitution and aspirations of the Madhesi parties as well. The agitating parties have been demanding the retrieval of the provisions from the Interim Constitution.

NC leader Rijal’s amendment bills allow to delineate first-past-the-post (FPTP) electoral constituencies mainly on the basis of population but it also says to treat geography as the secondary basis for such delineation.

Rijal’s amendment bill reads:

For the amendment of Article 286 (5): The Constituency Delimitation Commission shall delimit the constituencies in every province keeping population-based representation as main basis and geography as secondary basis in accordance with the article 84, 1 (a). Every district in the provinces shall have at least one constituency.

The amendment for delineation of electoral constituency leaves clues for controversial interpretations. It is yet to answer the question: What will be the ratio of population and geography? The interpretation of this provision might be narrowed in the laws related to delineation of FPTP constituencies to be enacted in future. Likewise, treating population as the main basis for delimitating electoral districts is a step forward. The issues of province 5 and province 7 are the major issues that need to be addressed. Hills and Mountain areas have more districts but less population while Terai districts have fewer districts and more population. The endorsing of Rijal’s proposal means that both district and province will have to be taken into account while delimiting the constituencies. If province is taken as a parameter, why should each district be ensured with at least one constituency?

There are media reports claiming that that the two amendments made to the constitution ensures 80 FPTP seats to Madhes which has more than 50 per cent population. Now the questions arise: Which Madhes will get 80 seats? Which areas will be considered as Madhes? Does Madhes mean only the eight districts included in province 2 of the new constitution? On what basis are these media outlets interpret that Madhes will get 80 seats? Twelve districts of Madhes have been split into five hill provinces. The delineation of electoral constituencies in province 1, 3, 4, 5 and 7 will be done on the basis of province and these provinces are linked with hill districts. Therefore, without revising the boundary of the provinces to ensure two provinces in Madhes, the region cannot have 80 FPTP seats.

Amendment on Proportional Inclusion

NC leader Farmullah Mansoor’s proposal passed by the Parliament on January 23, only incorporates the word ‘proportional’ in Article 42 (1) of the constitution. In fact, clusters for reservation have not been reduced as demanded by the UDMF, and other marginalised communities. Had the lawmaker proposed to add the clusters of Tharu, Muslim, OBCs and sexual minorities as stated in in the Interim Constitution, it would have been better. Such a revision can alone respect the spirit of the Interim Constitution.

Incorporation of ‘proportional’ in front of the word ‘inclusion,’ itself is an achievement. However, adding farmers, labourers and economically deprived Khas Arya does not make sense because farmers and labourers exist in all ethnic and social groups. As far as economically deprived Khas Arya group is concerned, the state should address their concerns through poverty alleviation programmes and not through affirmative action.  Thus, the amendment does not fully address the principle of affirmative action.

Reservation should be ensured for economically, socially and educationally deprived communities. The new amendment states that, any group should be economically, socially and educationally backward in order to be eligible for reservation. But in the case of Khas Arya, the constitutional provision only explains ‘economically deprived Khas Arya.’  Khas Arya group has almost 80 per cent representation in almost all the state organs. People of all communities are poor. What should be the parameters for measuring poverty in a poor country like Nepal? How appropriate is it to reserve seats for Khas Arya, which has been overly representing in all sectors of the government for centuries? However, the new amendments have  left space for judicial interpretation.

Conclusion:

Had the amendment proposal of NC lawmaker Bimalendra Nidhi as suggested by agitating UDMF been accepted, it would have respected the spirits of the Interim Constitution and mounted pressure on UDMF to accept the amendments.

Likewise, as for as the issue of the delineation of electoral constituencies is concerned, parties need to honestly work on increasing the representation of Madhesis and other marginalized communities on the basis of population and in the case of the representation of Upper House, one seat should be ensured to each province and the rest of seats should be allocated on the basis of the population of the provinces.

In order to address the demands of the agitating UDMF and other marginalized communities, the ratio of proportional representation in the Parliament should be increased from 40 per cent to 60 per cent (under the Interim Constitution this ratio was 58 per cent) and clusters for reservation should be reduced. Madhes should only have two provinces as recommended by the erstwhile State Restructuring Commission and the thematic committee of the first Constituent Assembly.