Wednesday, December 9, 2015

Discrimination against Madhesi in New Constitution?

India has blockaded Nepal for last two months on the pretext of agitation (which was more of terrorist activity) by a few much splintered Madhesi parties (out of 112 MPs elected from amongst Madhesi people only 11, representing over 6 parties, are opposed to new constitution!). The agitation is purportedly against discrimination of Madhesi people and they aren’t willing to their agitation end till discrimination is ended. Of several demands, they claim demarcation of provinces is their main demand, under which they are insisting on inclusion of 3 districts in east Tarai (Sunsari, Morang and Jhapa) in province number 2. If their wish is to be fulfilled, the merger will have to be done forcefully, violating the wishes of these 3 districts–almost like committing rape, as the people of these districts are against a merger with province number 2 at any cost. These parties have also failed to explain how discrimination, if any, will end by such a merger. Whatever these parties are saying openly, the covert reason seems to be to assist India in her vested in Nepal’s water resources by expanding province number 2 to encompass Koshi River (Sunsari is part of floodplain of Koshi).

Discrimination against Madhesi
These parties are repeating ad nauseam that Madhesi faced discrimination in the past, which will be continued under new constitution too. However, there was no provision for such discrimination under any law, Constitution, Act, Rule, etc. in the past, nor in the new constitution. Matter of fact is Madhesi feudal landlords have been exploiting some Madhesi people.

Before examining whether new constitution is discriminatory, there is need to establish who is a Madhesi. Current Indian home minister has been quoted as saying that 50% of Nepal’s population is of Indian origin and are called Madhesi, who live in Tarai. However, all people living in Tarai aren’t Madhesi and all Madhesi people don’t live in Tarai. For example one of the agitating parties is headed by Sharad Singh Bhandari, but he isn’t a Madhesi. He is deemed to be a Hill people. Similarly, Nepal have had 4 Koirala prime ministers and all of them hail from Tarai, but aren’t Madhesi. On the other hand many Madhesi people don’t live in Tarai and some even have spouses from amongst hill people.

In the same vein, Tharu, Muslim, Rabansi, etc., although hailing from Tarai, aren’t deemed to be Madhesi. Only Madhesi Brahmin, Rajput, Kayastha, Yadav, Teli, Kushwah, Kurmi, Kewat, Kalawar, etc. are deemed to be Madhesi and their mother tongues are Maithili, Bhojpuri, Awadhi, etc. Although 51% of Nepal’s population reside in Tarai, only 22% are deemed to be Madhesi. Besides, as most of these parties were routed in the election from their constituencies in Tarai, it is obvious that most of Madhesi people don’t agree with them. Therefore, their parroting about discrimination is neither supported by statistics nor by reality.

Constitutional Provision
Closer look at new constitution promulgated in September 2015 doesn’t reveal any provision that discriminate against Madhesi. Rather there are provisions that invest Madhesi with more rights for example in preamble, fundamental rights, employment in Nepal army, federal and provincial governments, etc.
It should be clear to people that everything on earth cannot be included in constitution in detail. Constitution is fundamental law of the country and all laws will be based on the constitution. Any law, which is repugnant to the constitution, is void ab inito. If any existing law contradicts provision of constitution re right of Madhesi people, such law is unconstitutional and not enforceable.

Proportional representation and inclusiveness
Main complaint of such parties is that this constitution, written and promulgated by constituent assembly, which was elected by the people (all previous constitutions, which were drafted by committees/commission appointed by kings, were promulgated by kings, using sovereign/executive right “invested” in them), is that it neither is inclusive nor guarantees proportional representation. However, it has been expressly stipulated in the preamble that a society that is inclusive on proportional representation basis shall be built. Therefore, their complaint is baseless. Actually, these words found place in constitution as a result of people’s movement that demanded proportional representation and inclusiveness. No previous constitution of Nepal provided for proportional representation and inclusiveness.

Right to equality
Article 18 (1) stipulates that “all citizens shall be equal before law” and adds in Sub article (2) that “there shall be no discrimination in the application of general laws on the grounds of origin, religion, race, caste, tribe, sex, physical condition, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology etc.” Hence, it will be unconstitutional to discriminate against anyone. So, it is not true that the constitution discriminates against Madhesi people and the statement itself is unconstitutional.

Moreover, proviso clause of Sub article (3) stipulates that special provisions can be made in “law for the protection, empowerment or advancement” of Madhesi. Under this provision Madhesi people are entitled to special protection, empowerment or advancement. While other people, although residing in Tarai, aren’t entitled to special protection, empowerment or advancement. Further, Madhesi people living outside Tarai too are entitled to special protection, empowerment or advancement. Financially deprived citizens too entitled to special protection, empowerment or advancement while Madhesi people are entitled to this special facility irrespective of whether they are financially deprived or not.

To recapitulate, Madhesi people aren’t discriminated against by the constitution and, on the contrary they are entitled to special protection, empowerment or advancement under this constitution. In this backdrop it is uncalled for to confuse and confound Madhesi people and hold nation to ransom by helping India to impose blockade.

Right to social justice
Article 42 has made provision for right to social justice to Madhesi people in the matter related to employment in state agencies on the basis of principle of inclusion. In other words, for example, Khas Arya people can be employed in state agencies under free competition only, but Madhesi people will enjoy certain reservation as a positive discrimination measure besides being able to participate in free competition. Specific law will fix the proportion of reservation for Madhesi people.

Nepal Army
Although there are quite a few Madhesi people working in Nepal Army, Madhesi parties’ constant refrain has been that they are discriminated against in the matter of employment in Nepal Army. Therefore, new constitution has specifically stipulated in Article 267 that Madhesi people have right to be employed in Nepal Army based on the principle of inclusion over and above on the basis of free competition. For this purpose too specific law will fix proportion of reservation for Madhesi people.

Government service
Article 285 (2) too stipulates that positions of all federal governmental services shall be fulfilled through competitive examinations of the basis of principle of “proportion inclusion.”

Positive discrimination
In this manner, it is clear that Madhesi people aren’t discriminated against by any provision of the constitution. Nor have Madhesi parties been able to point out any provision that discriminates against them. Rather. There are several articles in the constitution that guarantees proportional representation and inclusiveness. Such provision is known as positive discrimination internationally.

Either these parties have failed to understand provisions of the constitution, or are pretending not to understand and have become instrumental in having India blockade Nepal. It is also failure of state mechanism or dereliction of duty on the part of politicos and bureaucrats manning government in as much as failure to explain these positive discriminations and also assure that the constitution isn’t discriminatory against Madhesi people.

Ratna Sansar Shrestha

Published in People's Review on December 10, 2015

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