Federal discourse Krishna Khanal With the promulgation of the new constitution on 20 September 2015, Nepal has embarked firmly on the path towards federalism – which is now unequivocally part of the country’s constitutional destiny and critical to its political future. However, unless the interests of Madhesi communities from the Tarai plains are adequately accounted for, the journey will remain tortuous. The first amendment of the new constitution, agreed on 23 January 2016, tried to address some of the concerns of the Samyukta Loktantrik Madhesi Morcha (UDMF – United Democratic Madhesi Front), but did not meet its principal demand regarding a revision of the provincial setup. The Tarai occupies a pivotal position in Nepal’s federal self-determination, regional autonomy and an end to discourse – as the only region that could be distinctly discrimination based on caste, ethnicity, language and delineated into two or three ethno-regional entities; as religion. In 2004, at the height of the insurgency, the home to over half the population, two thirds of whom are Maoists actually declared the division of the country into Madhesi; and abutting India to the south, with very strong nine ‘autonomous regions’. Seven of these were named ties across the border. Madhesi concerns are therefore after the ethnicity or languages of the largest local both strategic and very sensitive. communities and the Maoists even formed ‘Autonomous People’s Governments’. Rise of federalism in Nepal Federalism became integral to Nepal’s political discourse But none of the Maoist documents during the insurgency soon after the success of the Second People’s Movement period refers explicitly to federalism, indicating that they of April 2006. The idea of federalism in Nepal is, however, had not given it much thought as an organising principle not that new. The Tarai Congress, a Madhes-based regional of the state. Nor was federalism even mentioned in political party, first floated it in the early 1950s with the the core documents of the peace process, such as the advent of democracy following the overthrow of the Rana Comprehensive Peace Accord 2006 (CPA) and the first oligarchy. The call for federalism was revived in 1990 after iteration of the Interim Constitution 2007. the downfall of the partyless Panchayat political system and the restoration of democracy. Once again, the call came The decision to adopt federalism as the way ahead from a Madhes-based political party, the Nepal Sadbhavana resulted from Madhes concerns. The Madhesi Janadhikar Party (Nepal Goodwill Party), but the Janajati-oriented Forum (Madhesi People’s Rights Forum), at the time a Rastriya Janamukti Party (National People’s Liberation rights-based NGO working for the Madhesi community, Party) and other Janajati (indigenous peoples) groups also protested against the Interim Constitution’s failure to raised similar demands. While these efforts failed to capture spell out federalism or to grant the Tarai proportional the political imagination, the 1990 Constitution did at least representation in the proposed Constituent Assembly (CA). recognise the country’s ethnic and linguistic diversity. The resulting Madhes Movement (along with a movement by the Janajatis) ultimately forced the state to accept The current debate on federalism gained momentum federalism as the basis of state restructuring, and to revise from 1996 with the Maoist insurgency. The rebels’ the constituencies in the Tarai as per the population ratio political mobilisation centred on the promise of ethnic [see article on social movements, p.97]. Two steps forward, one step back: the Nepal peace process // 75 The Fifth Amendment to the Interim Constitution in government – federal, provincial and local – and also July 2008 further clarified the modality of the federal listed their respective powers and responsibilities. Other restructuring of the state, as follows: modalities of federal polity such as division of power, inter-provincial relationship and dispute resolution Accepting the aspirations of indigenous ethnic groups procedures, were agreed as well. and the people of the backward and other regions, and the people of Madhes, for autonomous provinces, However, the parties were strongly divided over the Nepal shall be a Federal Democratic Republic. The provinces’ names and boundaries. The State Restructuring provinces shall be autonomous with full rights. The Committee’s report, adopted by majority vote, provided Constituent Assembly shall determine the number, for 14 provinces based largely on the ethnic criteria. Even boundary, names and structures of the autonomous a group with a population of one per cent of the national provinces and the distribution of powers and resources, total was linked to a potential province while groups that while maintaining the sovereignty, unity and integrity of would not be able feasibly to administer their own province Nepal. (Article 138–1A) were to be given autonomous regions with independent jurisdiction for self-governance. The committee also Political parties, Janajati groups, civil society organisations, proposed special preferential rights to the principal and even individual citizens all floated different models ethnic group to head the government in its respective of federalism, ranging from extremist ethno-regional, to province and autonomous region. The 14-province model much milder approaches. The Unified Communist Party of was heavily criticised as propagating ethnic federalism in Nepal-Maoist (UCPN-M) and Janajati activists demanded Nepal and was rejected by the more traditional political the formation of provinces along ethnic lines – to establish parties, the Nepali Congress (NC) and the Communist Party some sort of ‘ethnic homelands’ based on their historic of Nepal–Unified Marxist-Leninist (UML). territories and with the provision of agradhikar (the right of the titular ethnic community to head the government in The High Level State Restructuring Commission (HLSRC) the respective provinces). Others argued that the provinces provided for by the Interim Constitution was formed very should reflect the mixed settlement patterns of the late, long after the State Restructuring Committee had population and Nepal’s economic and development reality. submitted its report. The HLSRC members were selected along party lines and they remained divided accordingly. Elusive consensus The nine-member commission consisted of two each from There were three major challenges to incorporating the major political parties, UCPN-M, NC, UML and the federalism in Nepal’s new constitution. First, there were Madhesi Front, while the chair was selected by consensus. no clear regional blocks for political and administrative In terms of social background, HLSRC comprised purposes. Second, a multi-level division of power and three from the Khas Arya group (‘upper caste’ Hindu distribution of jurisdictional authority had to be created. communities with origins in the hills), three Janajatis, And third, the new federal structure needed to maintain two Madhesis and one Dalit (‘low caste’). coherence with the broader principles and values of a democratic polity, namely that everybody has the This composition left the three Khas Arya members, same rights. representing the NC and the UML (the second UML nominee was a Madhesi), in a minority. As a result, the First Constituent Assembly HLSRC could not produce a consensus report and its When the Committee on Restructuring the State recommendations were also highly controversial. Indeed, and Distribution of State Power (State Restructuring the minority group from within the HLSRC submitted a Committee) of CA I prepared its preliminary draft on separate report. The majority report had proposed 10 federalism, it had no problem dealing with principles. provinces to be based on identity and one non-territorial It unanimously approved the concept of a federal Nepal province for the Dalit community, to be spread across that underlined ‘identity’ and ‘viability’ as the two main all 75 Nepali districts. The majority report reflected foundations for carving out provinces. ‘Identity’ was the UCPN-M and the Madhesi parties’ positions, while defined as having five components: ethnicity, language, the minority report mirrored the NC’s and the UML’s. culture, contiguous geography and territorial alignment Although the majority report had dropped the idea of of the ethnic population, and historical continuity. preferential rights in heading the provincial governments, ‘Viability’ consisted of economic interrelationships, the boundaries and names of the proposed provinces status of infrastructure development, availability along with the idea of a non-territorial one were still of natural resources, and administrative convenience. much disputed. This sparked prolonged unrest in the The Committee agreed on a three-tier structure of far-western region and a nation-wide protest by the 76 // Accord // ISSUE 26 President Ram Baran Yadav symbolically touches the new constitution to his forehead in a gesture denoting the highest reverence before promulgating it on 20 September 2015. Standing by his side is the Speaker of the Constituent Assembly, Subhas Chandra Nembang © Kiran Panday ‘upper caste’ Bahun, Chhetri, and Thakuri, while Madhesi UCPN-M and a faction of the Madhesi Front reached a and Janajati groups also held counter-protests in favour 16-Point Agreement in June that settled the differences on of identity-based provinces as recommended by the State the major contents of