Nepal was declared to be a federal state by Fifth Amendment to the Interim Constitution (IC) in July 2008, two months after elections to constitutional assembly (CA) was held. However, the IC had written that a High Level State Restructuring Commission (SRC) would be formed to give advice to the CA in March 2007. However, a SRC was formed only in November 2011, four years afterwards. There were governments headed by three major parties in CA, Nepali Congress, UML and Maoists during this period and they totally ignored the constitutional provision for appointing a commission for such a long period of time. Such a commission was formed only after Baburam Bhattarai became Prime Minister and there was five months left before the tenure of CA was to expire. Was it because the three major parties had no real interest in either state re-structuring or in drafting a constitution?. Why no Truth and Reconciliation Commission was formed or peace process brought to an end till six years after signing Comprehensive Peace Agreement (CPA) between the Government and the Maoist insurgents ? While the Maoists had been demanding CA to draft a new constitution why did they declare the formation of ethnicity based states from the street without such a decision being taken either by CA or a State Restructuring Commission ?. If the Maoists had intended to bypass the CA, why did they demand that elections for CA be held in the first place ?. The lack of interest shown by the Maoists could be interpreted in capturing power which would make formation of such states a reality without sanction of either a Commission or CA. What about such parties as Nepali Congress and UML which believe in rule of law ?. A public interest litigation for mandamus was filed at the Supreme Court in March 2009 asking the court to direct the government to form the commission. It was dismissed on the grounds that it was a political question and the Court didn’t want to get involved in it.
There is also a State Restructuring Committee of the CA that is responsible for drafting part of constitution dealing with federalism and restructuring. It approved the formation of fourteen states in 2009. Actually, the commission should have been formed before committee had discussed state restructuring, way back in 2007. Precious time was thus lost in this delay. If there had been no delay and the commission had been formed in 2008 it’d have had adequate time to analyze and discuss formation of federal states as more than three years would have been available instead of two months. It is probable that CA wouldn’t draft a constitution by May 2012 as the Supreme Court had already made a decision that there’d be no further extension after that date. The major part of blame for non-promulgation of a new constitution for new Nepal four years after election would lie with the Maoists with their divisive agenda of ethnic states.
The report of SRC prepared by majority (six out of nine members) has been criticized by many. This scribe talked recently to one of the members was under the impression that the approval of the majority report by six persons (six out of nine members) would fulfill the requirement for approval by CA. However, IC says that for any part of draft constitution could be approved only if it is supported by two thirds majority of members of CA (not two thirds of membership of government appointed commission). A similar attitude was also seen after approval of formation of fourteen states by a simple majority (and not two thirds majority) of committee of CA. There were many who thought such an approval as good as approval of two thirds membership of CA. What had happened was a decision by just a committee and not the entire CA and even that just by a simple majority.
Centre of Constitution Dialogue (CCD) of UNDP is partly responsible for ignoring constitutional requirement of formation of commission for state restructuring and preparing maps and making discussion of such states by ethnic activists as if these were already approved by CA. The maps prepared showed the proportion of ethnic groups in the proposed ethnic states and the ethnic groups that’d be living outside their own state. United Nations should have been more neutral in this regard by inviting experts with more balanced views.
There is a widespread criticism of the Report. Two members of Maoist led cabinet and the Maoist party including Lekh Raj Bhatta and Top Bahadur Rayamajhi have been critical of commission report. Bhatta has been critical of division of Far West into Khas majority Karnali- Khaptad (denying them a name based on identity) and Tharuwan where Tharus make majority of population in only one district . Rayamajhi has demanded a state called “Khasan” where Brahmins and Chhetris make majority of population but have been denied an “ethnic name” unlike other ethnic states such as Newa, Tamuwan, Magarat, Tamsaling, Kirat and Limbuwan. He is also in favour of calling Chhetris as Adibasi Janajati. Actually leaders belonging to all political parties from the Far West including Nepali Congress, UML and the Maoists have opposed the separation of Kailali and Kanchanpur from the Far West. Leaders of three major parties including the Maoists, Nepali Congress and UML have been critical of the decision to divide Chitwan into four parts. This was perhaps to create a land link between two parts of Terai which were broken by Chitwan. The only way to form a link was by breaking Chitwan itself. Maoist leader Dahal inow opposed the division of Chitwan as suggested by majority of Commission most of whom were appointed by his party. As most of the members of commission were ethnic activists rather than scholars, it is not surprising that they were approving Maoist agenda for the most part also assisted by some Madheshi members. Well known journalist Yubraj Ghimire has written in Annapurna Post “Members appointed to State Restructuring Commission from some ethnicity and having confidence of donors interested in ethnic and social unrest have prepared a ridiculous and impracticable report.” The TOR given to commission was to prepare its report taking into account all aspects (samagra pakshya) of the report of state restructuring committee of CA. It now seems on its way to the dustbin as a worthless report made by a commission which was formed too late to impact the restructuring.
Khas people of Nepal (Brahmins, Chetris, Thakuris and Sanyasis) form the largest ethnic group in Nepal speaking Nepali as their mother tongue and following Hinduism. The most backward part of the country is the hilly region of Karnali, Bheri, Mahakali and Seti zones. Many Khas people were ruling Nepal for more than two centuries but the area where they formed more than half of the population remains the most backward in the country. No one can blame them for their backwardness. They have been branded as “others” unlike Janjatis, Dalits and Madheshis who can claim reservations. Many of the Khasas are also indegenious people as they had been living in Nepal long before some of those branded as “Adibasis” entered Nepal. Chhetris have now demanded Adibasi-Janjati status for themselves. No one can deny that the unification of Nepal in 1768 was started under the leadership of Khasas with the help of Magars and Gurungs. No constitution of a federal Nepal could be written bypassing and trying to ignore the identity of this group which is done by the Maoists. It appears that the limited mandate given to the Commission was one of the contributing factors in the quality of report that was published.