Quest for Inclusive Constitution in Nepal

INTRODUCTION

Nepal’s constitutional evolution began in 1948. The first constitution, of 1948, was devoted to the Ranas and the second constitution came after the Rana dynasty was over, in 1951. Third constitution, 1959, aimed at deepening the root of monarchy adhered to Aryan culture, Hindu religion and Nepali language. The constitution introduced equality, political freedom, non-discrimination and religious freedom but was changed in 1962 by the fourth version. It realised the need for citizenship with a condition of Nepali language proficiency. Although the constitution carried on the freedom, equality and non-discriminatory provisions from its predecessor, it was predominantly devoted to sustaining the party-less Panchayat system under absolute monarchy until 1990.

The People’s Movement, in 1990, overthrew Panchayat system and negotiated with royal palace for multi-party democracy under the constitutional monarchy. The fifth constitution recognised Nepal as a multi-ethnic, and multilingual kingdom and adopted the principles of social justice and affirmative action. However, the state, parties and policies failed in sharing ‘prosperity’ with the diverse communities. Mass frustration among the populace triggered by mounting corruption, nepotism, and underdevelopment. People’s War or the Maoist Armed Conflict began in 1996, challenging the centralised multiparty system in the constitutional monarchy. The war ended in 2006 and the sixth constitution, in 2007, staged groundworks for inclusive, federal and secular Nepal. Elections held on 2008 and 2013, producing a historic representation of excluded groups in the legislatures ever, and the seventh constitution, the Constitution of Nepal was promulgated in September 2015. Each version of the new constitution unearths the question about its stability and whether every segment of the populace is equally treated.

This article assesses the key developments in Nepalese political history to achieve equality through constitutional debate. The first part, the Constitution and Democracy, incorporates a brief overview of early constitutions, during 1948-1962, and the politics of ‘inclusive’ constitutional process during 1990-2015. The constitutions of 1990, 2007 and 2015, under ‘democratic’ leadership, are scrutinised through minority groups’ point of view, in the second part of the chapter. The third and the final part presents a synopsis of key findings regarding the incorporation of minority rights in Nepal’s constitutional development and whether the new constitution is more progressive towards the inclusion of excluded groups.

CONSTITUTION AND DEMOCRACY

The first constitution of Nepal, the Government of Nepal Act, was enacted in 1948 and all powers were delegated to the Rana[1] rulers (HMG, 1948). The constitution could not even last for three years. In 1951, the Interim Government of Nepal Act was promulgated following the end of Rana dynasty and the beginning of democratisation process. The Constitution, 1951, vested all executive powers to the royal palace although it integrated social justice, prohibited all forms of exploitation, and proposals for equality of opportunity (HMG, 1951). While the constitution helped in planting the roots of democracy in Nepal, it could not realise the potentials.

The third constitution in the series, the Constitution of the Kingdom of Nepal 1959 aimed at establishing the monarchical form of government (HMG, 1959). The constitution, adhered to Aryan culture, Hindu religion and Nepali as the national language, had provisions for political freedom, equality, non-discrimination and freedom of religious practices with restriction on conversion. 36 months later, in 1962, Nepal got its fourth constitution, the Constitution of Nepal, 1962 with citizenship arrangements. Anyone born in Nepal, or either of his/her parents born in Nepal or who, as a woman, had any marital relation with a citizen of Nepal were eligible for citizenship. However, the ability to read and write in the Nepali language was required. The Constitution, 1962, sustained the rights to equality, freedom and religion with restriction on conversion (HMG, 1962). Comparing to the previous three and following three constitutions, this was the longest-survived constitution in Nepal which rooted Panchayat System under the absolute monarchy in Nepal, until 1990.

By the dawn of Cold War, the breeze of democratic aspirations gradually entered Nepal. People’s quest for civil and political space in public affairs occupied the narrow streets of towns and villages. Masters of Panchayat were hiding in their forts. It was the inception of a new era. A popular uprising, known as ‘People’s Movement-I’, forced the royal palace to end autocratic rule of the king and Panchayat System. Started in February 1990, the uprising, locally known as Jana Andolan-I, consisted of nationwide strikes and massive movements demanding the restoration of multi-party democracy. In April 1990, a ten-member interim cabinet was formed after the king agreed to lift the ban against political parties. The Constitution of the Kingdom of Nepal, 2047 was promulgated in November 1990 by King Birendra ending three decades of absolute monarchy and Panchayat system (HMG, 1990). The Constitution adopted various provisions with an attempt to recognise the diversity in the country. The kingdom was defined as multi-ethnic and multi-lingual (Article 4 and 6).

Despite the constitutional provisions of fighting social injustice, protect and promote various culture, language and traditions, practice of multi-party democracy, conversely, substantiated a new circle of political elites with strong roots in predominant cultures. Although all backgrounds of the Nepalese population participated in the Jan Andolan, the post-Jan Andolan era could not witness the diversity in decision-making processes. The whole process of power- bargaining and power-exercise with the palace was influenced by dominant caste and ethnic groups. Constitution writing process, for example, indicated the sign of exclusive democracy since the beginning.

The constitution-writing process, in 1990, was split into two phases; the first step consisted of a nine-member Constitution Recommendation Commission (CRC) and the second one was the three-member Cabinet Committee (CC). The CRC was formed to draft the constitution during May- September 1990. The CRC members were recommended by the king, Nepali Congress (NC) and the United Left Front (ULF). NC and ULF recommended 6 men; 5 Hill Brahman and 1 from Tamang ethnicity. Later, 3 men; 2 Hill Brahman and 1 Hill Chhetri, were nominated in the CC. Many scholars criticised the exclusive statute writing process and even claimed that the approach was solely centred on ensuring three elements as the foundation of multi-party democracy; Shah dynasty, Hinduism and Nepali language, as the core of state-constructed Nepali identity (Malagodi, 2007). Many other perceived that post-Jan Andolan democratisation process was rather a continuation of particular power characteristics which just expanded beyond the royal palace to the political parties, mainly NC and Communist Party of Nepal- Unified Marxist and Leninist (CPN-UML). The elite-centric power politics significantly eroded the values of democracy in Nepal (Humagain & Seo, 2013) where people in general and the excluded groups, in particular, paid the hefty price. The political games in the following years failed in acknowledging the diversity in high and decisive portfolios resulting into wider discontentment and the emergence of armed struggle, the People’s War, in 1996.

The People’s War

On 13 February 1996, political front of CPN (Maoist), United People’s Front (UPL) declared the Maoist conflict or the People’s War with three primary objectives; ousting the monarchy, establishing the republic system and having people’s constitution through the Constituent Assembly.  The CPN (Maoist) contextualised the ideology of class war with poverty, injustice and exploitation and strengthened its capacity by ethnicizing the insurgency (Hachhethu, 2005). Comparing with the urban or rural areas in general, human casualties were more severe in villages with greater inequality (Nepal et al., 2011). Over 44% of the total number of casualties of the conflict were from indigenous nationalities and Dalits (Joshi & Pyakurel, 2015). Because many Dalits distinguish the surname to refrain from social stigma and, instead, use the one that denotes to HBC, the figure of casualties among Dalits could be higher than reported.

Political crisis further worsened after the royal massacre in June 2001. The new king, Gyanendra, seized absolute executive power which irked the mainstream political parties. The frustrated political parties signed the historic 12-point Agreement between the alliance of seven parties, known as Seven Party Alliance or SPA, and the CPN (Maoist) in November 2005, in New Delhi, India. The pact paved the way for a joint agitation, between SPA and Maoists, against the king, known as People’s Movement-II. Repeating the history, King Gyanenda reinstated the dissolved parliament in April 2006. The Comprehensive Peace Agreement (CPA) was signed between SPA-led government and Maoists formally concluding a decade-long bloody conflict. Next month, in May, parliament unanimously abolished the monarchy and declared Nepal as a secular state.

Foundation stone of ‘New Nepal’

In January 2007, the Interim Constitution of Nepal (IC 2007) was promulgated leading to the election of Constituent Assembly (GON, 2007). IC 2007 pledged a progressive restructuring of the state to accommodate the demands of different caste, ethnicity, religion and further declared Nepal as a federal democratic republican state abolishing 240 years of monarchy in the country[2]. In the meantime, feeling ‘betrayed’ by the ruling parties and Maoists, Madheshi started a 21-day mass movement, during January- February in 2007, demanding identity, proportional representation based on population and federal governance system. It was an incongruous event parallel to People’s Movement. The spontaneous movement was a landmark event in bringing out regional based ethnonationalism as one of the prominent issues in national discourse on restructuring the Nepali state which forced the government to amend IC 2007 twice within less than three months of its promulgation on 15 January 2007 (Hachhethu, 2007; Lunn, 2013). The Fifth Amendment, made on 13 July 2008, recognised the desire of Madheshi, indigenous people and other excluded people towards autonomy.

IC 2007 was in fact a result of negotiations between Seven Party Alliance (SPA), and CPN (Maoist) and is widely applauded as a framework for inclusive peace and state restructuring in Nepal. It primarily outlined the election of the Constituent Assembly, new constitution and, in the interim, share the ‘peace dividend’ with the excluded groups and conflict victims. Inclusive participation based on proportional representation was the key word coined by the IC 2007.

Constitution writing through the Constituent Assembly

To materialize the aspirations of inclusion and proportional representation, the Election to the Members of the Constituent Assembly Act, 2064 (2007), made provision for quota system under the Proportional Representation (PR) List. Accordingly, the reservation was 32.2% for Madheshi, 13% for Dalits, 37.8% for Indigenous people, 4% for the backward regions[3] and 30.2% for others[4] (ECN, 2007). Women were provided with 50% reservation within each group. The quota allocated for the different caste/ethnic groups in the CA election resulted in a historical representation of the minority and marginalised groups in the Assembly, in 2008. The most radical change in the parliament was seen regarding women, who secured 32.8 percent of the total seats making Nepal at the peak of 14th position, globally, for women participation in the parliament (IPU, 2009).

The CA formed 11 thematic committees to draft the constitution. Among them, the Committee for the Protection of the Rights of Minorities and Marginalised Communities (CPRM) was one with a mandate of ensuring excluded groups’ issue in the new constitution. The CPRM, with a limited timeframe, conducted handful number of dialogues with various groups and submitted their draft to the CA for further discussion. Many believed, however, the discussion was symbolic and had no intention to allow productive input from diverse members of the Assembly. CPRM finished the debate, in the general meeting of the CA, in less than 26 hours (MC, 2010). Despite the challenges and criticisms, however, the CPRM proposed several key measures to protect and promote minority rights in federal structures: rules against discrimination and exploitation; the right to equality; and affirmative actions. In addition to CPRM, the Committee on Restructuring of the State and Distribution of State Power (CRSDSP) also proposed some positive measures to safeguard the rights of minorities in state restructuring process. For example, consideration of identity while naming and delineating federal boundaries, autonomous special and protection areas for most excluded groups were recommended in the CRSDSP’s final report.

Encouraged by the positive provisions in the IC, the minority and marginalised groups throughout the country organised various forms of public meetings to collect voices and later submitted to the concerned thematic committees for incorporation. While ethnic identity-based groups were demanding for their rights in the new constitution, various other groups, notably the hardcore Hindu groups, pro-monarchy and few dominant communities were warning the CA for potential threats regarding fragmentation of Nepalese society and even secession if the identity in general and ethnicity, in particular, be primarily guaranteed in the constitution. In short, the major political parties did insufficient to allow wider inter and intra-group discussion throughout the country regarding contentious issues such as identity, federalism and forms of governance which, eventually, led to heated and sometimes violent clashes in some parts of the country (UNRCHO, 2012). The anti-federalism agitations were not spontaneous to protect harmony and co-existence but an ‘organisational drive’ to maintain the status quo and power structures since 2010 (TCC, 2010).

The political crisis dramatically coiled after the largest party, CPN (Maoist), quit the government in May 2009. Article 67 of the IC 2007 set the promulgation deadline by May 2010 which was extended by 2 more years on 28 May 2010. The extension was agreed between three larger parties; CPN (Maoist), NC, and CPN (UML), as a part of 3-point agreement to finish the remaining task of peace process, notably the integration of Maoist combatants and completing the tasks of constitution writing. Following the agreement, a series of political drama overshadowed the constitution writing process. Over 16 unsuccessful attempts to elect new prime minister were staged in the Assembly drawing local and international criticism. Political drama filched the worst shape on 28 May 2012 when the CA was dissolved without declaring a new constitution.

The Maoist’s prime minister handed over the leadership to the serving head of supreme court to lead the interim cabinet and hold another round of the election. Nepal suffered from four cabinet changes between 2008 and 2013 deteriorating people’s trust in political institutions and leaving the minorities more disappointed. The frustration was inevitable since the minority groups had significantly engaged in lobbying their issues in the constitution writing process despite repercussions from some of the dominant factions of the society. Dissolution of the CA showed the inability of Nepalese leaders to consolidate aspirations of diverse communities into the democratic mainstream which not just undermined the past achievements but also infused with fragmentation in the society. It was the climax of consensus rhetoric and induction of the arithmetic, or majority rules, state transformation phase which, eventually, distanced the rulers from the ruled ones.

From consensus to competition

The second election of the CA was held on 19 November 2013. The quota system, introduced in 2007, could not help the excluded groups, including women to increase or even sustain their numbers in the Assembly. Hill Brahman/Chhetri or HBC gained 55.4 percent, Tarai/ Madheshi, or TM, caste groups declined to 15.4 percent, Hill indigenous nationalities, or Hill IN, slightly decreased to 14.6 percent, TM IN bagged 7.5 percent, Newars at 5 percent, Muslim 1.7 percent, and Hill Dalits got 0.4 percent of the seats under First-Past-The-Post, or the FPTP (UNRCO, 2013). It was a notable revival of HBC’s majority in the election, 2013, comparing to 39% in the first CA election in 2008. TM caste groups declined from 23% in 2008 to 16% in 2013 whereas indigenous nationalities (Hill, TM and Newar combined) lost by 8% comparing to their seats in 2008.

Two primary factors affected the representation of non-dominant groups in the 2013 election. First, the larger political parties did not allocate enough candidates from the minority and marginalized groups or could not provide enough support in their election campaigns. Second, the split within pro-federalist political forces, such as CPN (Maoist), Madhesh/IN-based parties. CPN-Maoists, who had secured 30.52% of the FPTP votes in 2008 declined to 17.79% in 2013. Madhesh-based political parties, who had succeeded in securing 43 seats under FPTP in the previous election, declined to 12 seats in 2013. The indigenous parties split from 7, in 2008, to 13, in 2013. Nepali Congress re-emerged as the largest party in the second CA Election by bagging 29.80 percent, and CPN (UML) emerged as the second biggest party with 27.55 percent. However, that was only 7 and 6 percent increase from 2008 election, respectively. The Rastriya Prajatantra Party (RPP), Hindu conservative party advocating for the restoration of the monarchy, emerged as the fifth largest party in the second CA with 24 seats, they had 4 seats in 2008. The NC, CPN (UML) and CPN (M) represented 196, 175 and 80 seats in the second CA respectively.

It was obviously not a promising sign of a country where a large number of excluded groups were promised by the constitutions and their political leaders that the new constitution would provide ‘justice’ to them (Mabuhang, 2015; Adhikari & Gellner, 2014; Lawoti, 2016). To disown the previous achievements, regarding inclusive proposals prepared by the thematic committees under dissolved CA, the election result, of CA-II, was (mis)interpreted as a ‘no’ to identity politics by the bulky segment of urban-centric dominant groups and some leaders of bigger political parties as they succeeded in ‘resuming’ their space in the parliament[5]. On the other hand, many excluded groups considered this election result as a ‘conspiracy’ staged by national and international institutions and donor countries who had, so far, done very little than chanting ‘inclusion’ in their statements.

The majority-led, constitution writing process resumed on 22 January 2014. Until April 2015, 99 series of the meeting were held in the CA-II. In the meantime, an earthquake of 7.8 magnitude stroke Nepal on 25 April followed by another big shock, of 7.3 magnitude, on 12 May, killing over 9000 people, and causing massive physical destruction and displacement[6]. The coalition government, led by Nepali Congress and CPN (UML), seized the post-earthquake opportunity to ‘fast-track’ deluded constitution writing process[7]. From the next day of the second big earthquake, 13 May, a chronicle of ‘well-controlled’ meeting orchestrated. And, the 134^th session of the CA-II, on 16 September, approved the constitution[8].

Throughout the first and second assemblies, during 2008-2015, ‘consensus’ remained as key Mantra for the politicians to resolve the contentious issues. However, the Mantra seldom applied when it came to sharing power or restructuring the state. CA-II followed majority versus minority process whereas the opposition alliance- led by CPN (Maoist) entailing 19 political parties, mainly Madhesh-based and indigenous groups- insisted on consensus (all or most agree) on disputed issues. During the first CA, the CPN (Maoist) and Madhesh-based parties, despite their two-third majority, over-weighted on consensus and thus waited for the consent of NC and CPN (UML) until the end (IWGIA, 2015). However, CPN (Maoist), in the second CA, bowed to the ruling coalition at the climax. CPN (Maoist) deserted Madhesh-based and some indigenous groups opposed to the majority-led constitutional promulgation without resolving major contentious issues such as name and boundaries of the federal provinces. Amid the minorities’ stark disagreement, boycott and even the protest in some parts of Nepal, notably in Tarai, the Constitution of Nepal, 2015, was proclaimed as per the Rule 113 (3) of the Constituent Assembly Regulations, 2070 (AD), on 20^th September 2015 conferring mix reactions, of hope[9] and anguish[10], among the Nepalese population (HRW, 2015). While this was an end of 8-year long majority-led political negotiations, it certainly was not the end of the quest for inclusive democracy. How the ruling parties accommodate the issue of agitating groups will determine the health of 7^th constitution.

POST-1990s CONSTITUTIONS AND MINORITY RIGHTS

Nation

The Constitution of the Kingdom of Nepal, 1990:

The Constitution of the Kingdom of Nepal, 1990, had some provisions with an attempt to recognise the diversity in the country. The kingdom was defined as multi-ethnic and multi-lingual (Article 4 and 6).

The Interim Constitution of Nepal, 2007:

The Interim Constitution of Nepal (IC) pledged the progressive restructuring of the state to solve the issues of class, ethnicity, religion and gender and further declared Nepal as a federal democratic republican state abolishing 240 years of monarchy[11]. The nation was defined as multi-ethnic, multi-lingual, multi-religious and multi-cultural and the state of Nepal was classified as secular and inclusive (Article 3 and 4).

The Constitution of Nepal, 2015:

As in the Interim Constitution, 2007, the constitution, also defines the Nation (Article 3) as multi-ethnic, multi-lingual, multi-religious, and multicultural. The state is secular, inclusive and federal democratic republican (Article 4.1).

Language

The Constitution of the Kingdom of Nepal, 1990:

There was not any additional provision for a language other than the nation as multi-lingual (Article 3).

The Interim Constitution of Nepal, 2007:

Nepali language was defined as the official language whereas all other languages spoken as the mother tongue were considered as the languages of the nation (Article 5.1 & 5.2). The state was encouraged to provide additional measures to use other-than-Nepali language in government offices.

The Constitution of Nepal, 2015:

All languages spoken as mother tongue in Nepal are recognised as the languages of the nation (Article 6). However, Nepali language is declared as the official language, and federal provinces are allowed to determine the language/s spoken by the majority in the respective province as official language/s, in addition to Nepali language (Article 7.1 & 7.2). A language commission is envisioned to recommend further arrangements should the federal government decides so (Article 287).

Citizenship

The Constitution of the Kingdom of Nepal, 1990:

Anyone born in Nepal, and whose father was a Nepali citizen, was entitled to citizenship (Article 9.1). A foreigner could be eligible given that the person could speak and write in Nepali; resided in Nepal for 15 years; and renounced the citizenship of another country (Article 9.4). A woman of foreign nationality could receive Nepali citizenship if she had a matrimonial relationship with a Nepali citizen (Article 9.5). Article 125 (Provisions Regarding Citizenship of Official of the Constitutional Bodies) set up eligibility criteria, for the appointment in the constitutional bodies, as a person must either be a citizen of Nepal by birth or descent, or be a person who, as a naturalised citizen, had resided in Nepal for at least ten years.

The Interim Constitution of Nepal, 2007:

The citizenship provisions, under Part-2 Citizenship: Article 8.2.b, allowed the citizenship by descent if father ‘or’ mother was a citizen of Nepal which was a breakthrough arrangement to allow a child to have citizenship in the name of his/her mother. Article 6 allowed the naturalised citizenship to a woman of foreign nationality with a matrimonial relationship with a Nepalese citizen. Similarly, a child born in Nepal and from a Nepalese woman citizen married to a foreign man could acquire naturalised citizenship[12].

 The Constitution of Nepal, 2015:

While most of the citizenship provisions are similar to the Interim Constitution, 2007, there has been a significant shift regarding a child being eligible for citizenship if his or her father ‘and’ mother, both, are Nepalese citizen (Article 11.3). This is a departure from father ‘or’ mother arrangement in the IC, 2007. A woman of foreign national marrying a Nepalese man can acquire Nepalese citizenship (Article 11.6), but the constitution does not arrange any provision for man of foreign national marrying a Nepalese woman. A child born to a Nepalese woman with a foreign husband can acquire naturalised citizenship (Article 11.7) whereas a child born to a Nepalese father with a foreign wife can get citizenship by descent[13] (Article 11.2.b).

The citizenship provisions of the Constitution also discriminate the citizen by types; naturalised versus descent. The naturalised citizenship, for instance, limits the eligibility for high level constitutional and public offices (Article 289.1). The eligibility provision is reserved for the citizen by descent only. This arrangement is completely different than IC 2007. Article 155 of the IC 2007 had accepted naturalised citizen, in addition to the citizen by descent, to be eligible for the constitutional positions provided that he or she should have resided in the country for at least ten years. Even a naturalised citizen could be the president of the country (Article 36D of the IC 2007).

Fundamental Rights

The Constitution of the Kingdom of Nepal, 1990:

The Constitution, under Part-3 Fundamental Rights and Duties, had provisioned the Right to Equality which prohibited discrimination on the ground of religion, race, sex, caste, tribe or ideological conviction (Article 11. 2 & 3). The constitution also encouraged the state to provide special treatments to protect and advance the interests of women, children or those who belonged to economic, social and educational backward groups. Article 12 provided the Right to Freedom whereas cultural and educational right were aimed to preserve and promote the language, script and culture of each community living in Nepal in addition to the right to have primary schooling on mother tongue (Article 18.1&2). Everyone was entitled to exercise his/her faith, but the conversion of religion was prohibited (Article 19.1 & 2). Trafficking, slavery and forced labour were also banned (Article 20.1 &2).

The Interim Constitution of Nepal, 2007:

Part-3 Fundamental Rights in the IC surpassed the past constitutions regarding conferring Right to Freedom and the Right to Equality prohibiting any form of discrimination, including untouchability based on religion, colour, sex, caste, tribe, origin, language or ideological conviction (Article 13 and 14). It also conceded punishment and compensation against the discriminatory treatment in public places. The Right relating to Education and Culture (Article 17) allowed the primary education in mother tongue and the right to preserve and promote language, script, culture, cultural civilisation and heritage of every community residing in Nepal. Article 20, Right of Women barred any form of discrimination against women, promised reproductive health right, and equal right to ancestral property. For the first time, the Constitution acknowledged the Right to Social Justice (Article 21) and ensured the right of Dalits, indigenous peoples, Madheshi, among others and their participation in state organs based on ‘proportional inclusion.’ Rights of the Child was ensured in Article 22 and the Right to Religion in Article 23 allowing religious freedom but disallowing anyone to help, or compel a conversion.

The Constitution of Nepal, 2015:

Under the Fundamental Rights and Duties, every person has the right to live with dignity (Article 16) and has the right to freedom (Article 17) with freedom of expression, political parties, unions and associations. Under the right to equality (Article 18), discrimination on any ground is prohibited, by individual or even state. The state is encouraged to make special arrangements for the protection and empowerment of the minority and other groups including indigent Khas Arya (Article 18.3). While some welcomed the inclusion of the term Khas Arya[14], minority and indigenous people, on the contrary, conceived this as the continuation of constitutional discrimination. The criticism is based on the fact the constitution has only defined Khas Arya and no other groups who deserve much-needed attention.[15]

Untouchability and discrimination are strictly prohibited, in public or private places, on the ground of origin, caste, profession, occupation or physical conditions (Article 24). Any violation of this provision is punishable by law. Everyone is guaranteed the right to religious freedom including practice, and protect but any attempt of conversion, of another person’s faith, is forbidden (Article 26). The victim of exploitation, such as trafficking and forced to work, has the right to compensation, from the perpetrator (Article 29). But, the state can require the citizen to perform necessary public services.

Everyone has access to primary education, citizens with disabilities and economic poor have the right to get free higher education, and right to get an education on mother tongue is guaranteed (Article 31). The constitution grants right to language and culture: by using own language; participating in cultural lives; preserving and promoting language, culture and civilisation (Article 32).

Women are granted with various equal and special rights (Article 38). Women have the equal rights: regarding safe motherhood and reproductive health; no violence or exploitation or discrimination of any form and are punishable by law if occurs; proportional participation in all state bodies; and the right to property and family affairs. A special right is guaranteed in education, health, employment and social security. Article 39 ensures the rights of the child including education, health, entertainment, child development and participation, special protection to the helpless, orphan, conflict victim, vulnerable children and the right to juvenile friendly justice. Practices such as child labour, child marriage, abduction, engagement in armed groups or such activities and any other forms of exploitation of child or discrimination against a child are strictly prohibited and punishable by law.

Dalits have the rights to proportional inclusion, free education up to higher education, protect and promote traditional occupation and knowledge and free land ownership (Article 40). Dalits also have special arrangements regarding empowerment, representation, employment, and education. Senior Nepalese citizens have the right to special protection and social security as well (Article 41).

The Right to Social Justice (Article 42) guarantees the right of every single citizen, ranging from minority and indigenous people to poor Khas Arya, to participate in state bodies. The poor and near-to-extinct citizen, single women, people with disability have a special right to education, health, housing, employment, food and social security (Article 43). The Constitution grants the right to constitutional remedies (Article 46) and directs to go to the supreme court (Article 133) or high court (Article 144) if the fundamental rights are violated. However, the state possesses three years’ timeframe to make legal arrangements in order to implement the fundamental rights (Article 47).

State Policies

The Constitution of the Kingdom of Nepal, 1990:

The Directive Principles of the State, Part-4, realised the influence of limited sections of the society over economic resources and, thus, envisioned equitable distribution of economic gains through social justice. Also, all forms of economic and social injustice based on caste, tribe, language, religion and race were prohibited (Article 25 2 & 3). The state policies were encouraged to maintain cultural diversity and national unity: by promoting languages, literature, scripts, arts and cultures of various groups; and advancing the interests of economically and socially backward groups by making special arrangements in education, health and employment (Article 26.2 & 10).

The Interim Constitution of Nepal, 2007:

Under the Part 4 of the IC; Obligations, Directive Principles and Policies of the State, the state was obliged to ensure progressive political, social and economic transformations (Article 33.b), and to adopt a political system entirely upholding the universally accepted concept of basic human rights, social justice and equality, among other characteristics (Article 33.c). To further emphasising on state restructuring and making it inclusive, the IC demanded the state to end centralised and unitary governance system, and, at the same time, addressing the problems of women, Dalits, indigenous people, Madheshi and other minority and excluded communities. Discrimination based on class, caste, language, gender, culture, and religion was prohibited (Article 33.d).

The First Amendment, on 14 March 2007 of the IC, provisioned for the proportional inclusion of Madheshi, Dalits, indigenous people, women and other excluded in the state structures and asked for programs to end feudalism in all its forms (Article 33.d1 & e). The Directive Principles of the State, Article 34, provisioned to have economic policies based on equitable distribution of economic gains whereas the social policies sought to eliminate all forms of social and economic inequalities (Article 34.4&5). The Policies of the State sought upliftment and reservation for indigenous people, Madheshi, Dalits, marginalised and others living below poverty line in education, health, housing, food sovereignty and employment for given period (Article 35.10). It further demanded special provisions based on positive discrimination (Article 35.14).

The Constitution of Nepal, 2015:

Under the Directive Principles, Policies and Obligations, the state is encouraged to establish a welfare system of governance based on rule of law, inclusion, and social justice by adopting cooperative federalism, autonomy and decentralisation (Article 50.1). It further seeks to establish a classless society by ending all forms of discrimination, exploitation and injustices. The Constitution directs the state to make security forces inclusive and the public administration transparent, accountable and participatory (Article 51.a & b).

Policies relating to social justice and inclusion in Article 51.j cover different minority and marginalised groups and provide with various rights to uplift their living conditions. Such policies include, but not limited to, the arrangement for the livelihoods and employment of single women; self-dependency, protection and empowerment to the vulnerable and victim women; provision of housing, land, and employment to the landless and freed bonded labours; participation, development and empowerment of the youth in overall national development; special provisions to indigenous people in the decision making that affect their life besides the protection and promotion of traditional knowledge, skills and cultures; special provisions and benefits to minority groups to enjoy their social and cultural rights while maintaining their identity; and equal distribution of economic, social and cultural opportunities and benefits to the Madheshi, Muslim and backward class.

Political Inclusion

The Constitution of the Kingdom of Nepal, 1990:

The political parties were required to allocate at least 5 percent of the total number of candidates contesting an election to woman (Part- 17, Article 114).

The Interim Constitution of Nepal, 2007:

The Constituent Assembly adopted mixed electoral system and required the composition of members elected by equality of population, geography and specificity (Part-7 Constituent Assembly). Out of 601 members, 240 under first-past-the-post (FPTP), 335 by proportional representation system (Article 63.3.b), and 26 members were to be nominated by the Cabinet that included indigenous peoples who could not get a seat in the Constituent Assembly either under FPTP or the proportional representation (Article 63.3.c). The political parties were required to ensure inclusivity in their candidates’ selection, and proportional representation of women, Dalits, Madheshi, indigenous people and other excluded groups (Article 63.4). Similarly, a provision sought to have women, Dalits and other excluded groups in the executive committees of the political parties (Article 142.3.c).

The Constitution of Nepal, 2015:

The state is divided into three structures; federal, state or province and local level and is based on the principles of pluralism, equality, inclusive representation and identity (Article 56). Two houses, the House of Representatives (HoR) and the National Assembly (NA), form the Federal Legislature (Article 83). The HoR consists of 275 members that include 165 members elected through FPTP and 110 members through PR (Article 84.1.a & b). The PR list should also include Khas Arya in addition to the minority and marginalised groups. Each party in the Federal Parliament should have at least one-third women (Article 84.8).

Part 14 of the Constitution endows the State Legislature. The number of State Assembly members should be twice the number of members elected in the HoR from the respective state under FPTP (Article 176). This figure should be considered as 60 percent and remaining 40 percent should be the number of members to be elected under PR. As in the Federal Legislature, the PR list for the State Legislature should include women, Dalits, Madheshi, indigenous people and Khas Arya among others based on the ‘proportional inclusion’ principle. At the local level, 4 women and 2 Dalits or minority community should be included in the Village Executive (Article 215.4). At the district level, the District Coordination Committee should have 3 women and 1 Dalit or minority among the 9 members. The political parties must ensure inclusive representation in their executive committees at various levels (Article 269.4.c).

Commissions

The Constitution of the Kingdom of Nepal, 1990:

A provision for Election Commission was made in Article 103.

The Interim Constitution of Nepal, 2007:

In addition to the Election Commission, Article 131 of the IC provisioned for National Human Rights Commission to ‘ensure the respect for, protection and promotion of human rights and their effective implementation’ (Article 132.1). Similarly, the appointment of the commissioners had to be based on diversity, including woman.

The Constitution of Nepal, 2015:

National Women Commission, National Dalit Commission, National Inclusion Commission, Indigenous Nationalities Commission, Madheshi Commission, Tharu Commission, Muslim Commission and Language Commission are provisioned in the new constitution besides National Human Rights Commission (Article 252, 255, 258, 261, 262, 263, 264, 287 and 248). Women, Dalit, Language and inclusion commissions can open the office in federal provinces as required. Inclusion Commission is tasked to conduct research with an aim at protecting the rights and interests of communities, including Khas Arya, people with disabilities, minorities and marginalised groups (Article 259). Elaboration on the roles and responsibilities of the National Human Rights Commission, National Women Commission, Language Commission and National Dalit Commission are provisioned in the constitution whereas other commissions should have to wait until further prescribed by the federal law. Review of these commissions after 10 years, since the commencement of the Constitution, is also provisioned (Article 265).

Other Inclusive Features of the Constitution of Nepal, 2015

There is not any explicit provision for inclusive representation in the Election Commission, Public Service Commission, National Natural Resources and Fiscal Commission or even in National Human Rights Commission. However, equality and inclusion of groups such as woman, Dalits, Madheshi, indigenous people in addition to Khas Arya are provisioned in Nepal Army (Article 267.3). The Constitution is silent regarding the inclusion in other security apparatuses, i.e. Nepal Police, Armed Police Force and National Investigation Department.

For the first time in Nepalese constitutional history, constitution acknowledges the definition of ‘minority’ and ‘marginalized.’ The minority is defined as:

‘…ethnic, linguistic and religious groups whose population is less than the percentage specified by the Federal law, and includes groups that have their distinct ethnic, religious or linguistic characteristics, aspirations to protect such features and subjected to discrimination and oppression’ (Article 306.1.a).

Moreover, marginalized is defined as:

‘…communities that are made politically, economically and socially backward, are unable to enjoy services and facilities because of discrimination and oppression and of geographical remoteness or deprived thereof and are in lower status than the human development standards mentioned in Federal law, and includes highly marginalized groups and groups on the verge of extinction’ (Article 306.1.m).

CONCLUSIONS

Nepal has adopted the seventh statute in 2015. The first constitution, 1948, was devoted to the Ranas but the second constitution born after the abolishment of Rana dynasty, in 1951. Third constitution, 1959, deepened the roots of monarchy adhered to Aryan culture, Hindu religion and Nepali language. The fourth constitution, in 1962, introduced citizenship provisions based on Nepali language proficiency and sustained Panchayat System until 1990. The drivers of People’s Movement, in 1990, negotiated a multi-party democracy under constitutional monarchy but practically failed in accommodating the grievances of excluded groups and regions.

People’s War, or Maoist insurgency, began in 1996, challenging the establishment. The conflict ended in 2006 and the sixth constitution, IC 2007, was declared introducing much-needed recognition of identity groups and inclusive provisions resulting in a historic representation of minority and indigenous people in the parliament. Despite rich and vibrant discussions regarding symmetrical federalism, the Assembly was dissolved in 2012. Another round of election held in 2013 to complete the ‘remaining tasks’ before the constitution was finally promulgated during the last quarter of 2015.

 There is ‘everything for everyone’ in the Constitution of Nepal, 2015, except for the affluent Khas Arya man. Numerous equal, special and compensatory provisions for the minority and marginalised groups are integrated. The term ‘Khas Arya’ is cherished and defined more than once whereas other groups do not have such privilege. Distribution of Khas Arya population in the newly-delineated seven federal provinces, for instance, can genuinely support the doubts whether ‘kinship’ model of federalism is already framed. Despite an extensive list of rights and repetition of inclusive arrangements, there are multiple provisions which either contradict with each other or are too vague to interpret or too narrow to justify in due course of action.

Three constitutions, since 1990, have tried to reflect multi-ethnicity, multi-lingual, and inclusiveness of the Nepalese society. While constitution is the supreme law of the land, the omnipotence of the law is largely contingent on the earnest realisation and shrewd interpretation by those in authority. Nonetheless, the minority and indigenous nationalities still need to seek more in the constitutions apart from how the inclusive provisions are interpreted, structures are reframed, and institutions are put in place to carry out mandates. If everyone gets everything, it, in practice, pushes the weaker section of the society at the end of the row. The soul of an ideal constitution is to provide equal recognition to every citizen, irrespective of caste, colour, status, and access and acknowledges the fact that those who have been compelled to live outskirts or far-off the national mainstream deserves more than just the normal standards.

(The article forms a chapter in a report- Despite Good Intentions: A Reflection on Minority Rights in Nepal, I authored in 2017). ————————————————————————————————————————————

Footnotes

[1] See https://www.britannica.com/event/Rana-era for details about the Rana dynasty which lasted between 1846-1951. (14/11/2015)

[2] Inserted by the Fourth Amendment, 29 May 2008

[3] Backward regions include Achaham, Kalikot, Jajarkot, Jumla, Dolpa, Bajahang, Bajura, Mugu and Humla districts. Of the total population of these 9 districts, 1,147,565, HBC cover 71.3 percent.

[4] Other means the group not specifically mentioned in this Schedule 1 of the Act.

[5] See the interview of Rastriya Prajatantra Party- Nepal (RPP-N)’s chair Kamal Thapa, in the Kathmandu Post at http://kathmandupost.ekantipur.com/news/2013-12-30/secularism-a-conspiracy-between-foreign-powers-farleft. html (02/01/2016).

[6] See http://drrportal.gov.np/home for details (03/01/2016).

[7] https://www.nytimes.com/2015/06/09/world/asia/earthquake-prods-nepal-parties-to-make-constitutiondeal. html?_r=0 (21/ (20/10/2015)

[8] See http://asd.org.np/nepal-in-transition/ca-ii/meeting-chronology-of-caii/ for dates of the CA-II meeting (09/04/2016).

[9] See http://kathmandupost.ekantipur.com/news/2015-09-19/people-celebrate-constitution-promulgation-inphotos.html for glimpses of celebration in mainly Kathmandu and hill districts (25/10/2015).

[10] See http://in.reuters.com/article/nepal-constitution-idINL4N11R2CD20150921 for post-constitution violence (27/12/2015).

[11] Inserted by the Fourth Amendment, on 29 May 2008.

[12] There, however, were some serious issues in the constitution such as statelessness and gender discrimination. See http://www.institutesi.org/NepalUPR2015.pdf for a list of recommendations on the citizenship provisions in the Interim Constitution, 2007 (10/03/2016).

[13] See https://chaukathnetwork.wordpress.com/2015/12/24/critique-of-citizenship-provision-in-nepalconstitution-2072/ for citizenship issues in the Constitution of Nepal, 2015 (28/02/2016).

[14] Article 84.2 of the Constitution of Nepal, 2015 defines “Khas Arya” as Kshetri, Brahmin, Thakuri, Sanyasi (Dashnami) community (of hill-origin). Integration of Thakuri and Sanyasi with Hill BC increases the latter’s population from 28.7 percent to 31.2 percent. While other caste/ ethnic groups are keen to split from their indigenous identity, the HBC, on the contrary, have so far managed to unify their group identity and have preserved in the new constitution as well. Other groups do not have such privilege despite their vulnerability to dominant cultures.

[15] See http://www.indigenousvoice.com/en/nepals-new-constitution-makes-mockery-of-reservation-policy.html for the criticism of Khas Arya provision in the constitution. (25/02/2016)

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References

Adhikari, K.P. & Gellner, D.N., 2014. New Identity Politics and the 2012 Collapse of Nepal’s Constituent Assembly: When the Dominant becomes “Other.” Modern Asian Studies, pp.1–37.

ECN, 2007. Election to the Members of the Constituent Assembly Act, 2064, Nepal: Election Commission of Nepal.

GON, 2007. The Interim Constitution of Nepal, 2063 BS: Nepal Law Commission.

GON, 2015. The Constitution of Nepal, 2072 BS. Kathmandu.

Hachhethu, K., 2005. Maoist Insurgency in Nepal: An Overview., pp.1–16.

Hachhethu, K., 2007. Madheshi Nationalism and Restructuring the Nepali State. In “Constitutionalism and Diversity in Nepal.” Kathmandu: Centre for Nepal and Asian Studies, TU, MIDEA Project and ESP-Nepal, pp. 1–12. Available at: http://www.uni-bielefeld.de/midea/pdf/Hachhethu.pdf.

HMG, 1948. Government of Nepal Act, 2004 BS, Nepal.

HMG, 1951. The Interim Government of Nepal Act, 2007 BS, Nepal.

HMG, 1959. The Constitution of the Kingdom of Nepal, 2015 BS, Nepal.

HMG, 1962. The Constitution of Nepal, 2019 BS, Nepal.

HMG, 1990. The Constitution of the Kingdom of Nepal, 2047 BS, Nepal.

HRW, 2015. “Like We Are Not Nepali” Protest and Police Crackdown in the Terai Region of Nepal, Available at: https://www.hrw.org/news/2015/10/16/nepal-investigate-deaths-during-terai-protests.

Humagain, S. & Seo, J., 2013. Failure to Democratize: Exclusive Parliamentary Politics in Nepal (1990-2002). The Korean Journal of International Studies, 11(1), pp.173–199.

IPU, 2009. Women in Parliament in 2008.

Joshi, M. & Pyakurel, S.R., 2015. Individual-Level Data on the Victims of Nepal’s Civil War, 1996–2006: A New Data Set. International Interactions, 41(3), pp.601–619.

Lawoti. M., 2016. Constitution and conflict: Mono-ethnic federalism in poly-ethnic Nepal. In V. Sachdeva, Q. Pradhan, & A. Venugopalan, eds. Identity Assertions and Conflicts in South Asia. New Delhi: Routledge, pp. 10-18.

Lunn, J., 2013. Nepal’s endless peace process, 2006-12., pp.1–15.

Mabuhang, B., 2015. From Peace Settlement to Political Settlement. IPS Papar 10, pp.1–27.

Malagodi, M., 2007. The Rejection of the Minority Approach in the 1990 Constitution Making Experience: A Reflection on the Influence of Foreign Institutional Models. In A paper presented at an international seminar on “Constitutionalism and Diversity in Nepal.” Kathmandu: Centre for Nepal and Asian Studies, TU, MIDEA Project and ESP-Nepal, pp. 1–19.

MC, 2010. Attendance and Participation in the Constituent Assembly, Kathmandu, pp. 1-13.

Nepal, M., Bohara, A.K. & Gawande, K., 2011. More Inequality, More Killings: The Maoist Insurgency in Nepal. American Journal of Political Science, 55(4), pp.886–906.

TCC, 2010. Nepal’s Political Deadlock, Issues Report on Local Political and Peace Process Trends, Atlanta, Kathmandu, pp.1-13.

UNRCHO, 2012. Perspectives on Chhetri identity and how these relate to federalism, Kathmandu, pp. 1-9.

UNRCO, 2013. NEPAL: Constituent Assembly Election 2013 under FPTP – Breakdown of Elected Candidates by Caste / Ethnicity, Kathmandu.