Tuesday, February 2, 2010

Shakun on "Agradhikar" or 'Restorative Justice' in Nepal

Agradhikar literally translates as “pro-original rights” and prescribes not “preferential rights” but “restorative justice” for citizens who have been oppressed and subjugated with forced nationalism causing the destruction of the original practices of communities and leading to discriminatory and unlawful human rights practices. Agradhikar as restorative justice has been the touch word in the language radar of the Adivasi Janajati expression of self-determination. Agradhikar can be defined as reclaiming the inheritance of wasted social, symbolic, cultural and economic values. 

The Adivasi Janajatis are evaluating through dialogue and expressing by story-telling their experiences of discrimination, marginalisation and exploitation and how they can be partners in the state building process as equal citizens. They reminisce about the sequential and structural discrimination of Adivasi Janajatis, Dalits and other marginalised groups demanding social, political, economic and educational opportunities. Such rights as these marginalised identities have been demanding are specified in the declaration of UNDRIP, ILO Convention 169, CERD and CBD Convention 1992. 

Exclusion and humiliation

Some may like to believe that agradhikar interpreted as ‘extra-preferential rights’ demanded by the Adivasi Janajatis will lead to ‘reverse discrimination’ and thereby attends to the fear of Brahminbadis. The Adivasi Janajatis, Dalits, Madhesis and other marginalised groups find the relevance of their demand for restorative justice in the same way that Indian constitutionalist Dr. Ambedkar was for applying necessary unequal rights to bring society to a conclusive equilibrium. Preferential rights are not bonus rights but justified and reasonable compensations to right the historical wrongs perpetuated through defining and classifying of the citizenry according to a dominant caste’s prerogative. 

As Galileo was right to question the church and the state which held that the earth was flat, the Adivasi Janajatis have a right to question their enforced inclusion as discriminatory and unjustified. 

Conquest and subjugation

The origin of Nepali state nationalism is the enforced aggregation of Brahmin discipline and methodology. Before the conquest of the 22 and 24 fiefdoms and principalities, Prithvi Narayan Shah was a warrior king of the Gorkha, whose divinity was protected by his Magar priests. But he sanctified Brahmins as the priests who could dictate his spiritual life and anesthetise him about the plight of his people and place. From 1768, the Brahmins who had been vested with priesthood fast levitated to advisors, gathered momentum as administrators and established their rule under the garb of kingship and democracy. Their monopoly to translate the Hindu religious texts helped them establish their hegemony over the king and citizens. They gave technical accounts in ornamental language and established authority by exposing themselves to hypothetical peer review and judgment. This was all new to the Adivasi Janajatis, for whom identity was equivalent to oxygen to keep an individual in a community spiritually active.

The principle of unification had been conquest (adhikaran) through brute force (in 1768), followed by manipulation of a series of subjugating laws codified supposedly to build a nation-state. The nationalities of the territories did not come together as the EU or Indian states built on consensus. The Nepali nation-state was a borrowed knowledge of British colonialism with unfettered access to laws, implementation and resources. If the Newars were conquered by brute force during Indra Jatra, Limbuwan was subjugated by manipulation as they enjoyed the kipat system (autonomous land) of land holding till King Mahendra’s regime.

Deciphering language

In the anatomy of language, the literal expression always identifies conventional explanations that have limited factual basis and confirm the pre-established set of rules. It denies a new basis of establishing cause and effect. Hazoor, a Mughal derivative of poetic eloquence, when applied in Nepali caste-ism, becomes a crude expression of extracting respect through domination. Thus language might literally mean one thing, but taken in a different context, it can completely lose its original meaning. Agradhikar for the Adivasi Janajatis means pro-original rights for the protection of their culture, territory and natural resources. It is also their right to sustainable development, which at the present, is being denied by the centralised state.

We do not see the current struggles as a failure of nationalism, but as a sign of ethnic groups reasserting themselves in the national context. When the Muslims in Britain who make up 13 percent of the population want their representation guaranteed in the British Parliament, they are not demanding for a Muslim Britain. Likewise, if it was J.F. Kennedy who had given the “I have a dream” speech instead of M.L. King, it would not have morphed the black issue into a civil rights movement which today has established President Obama as the rightful president of the US by the Dedilomeni Principle. Thus it is important that the media, while airing the views on social inclusion and inclusive democracy by the Brahmins, also give the same space to Janajatis. But that is not the case. 

Brahmin leaders like Girija Prasad Koirala, Madhav Kumar Nepal and Pushpa Kamal Dahal thus talk about solutions to the Janajati issues, not because they would like to solve them, but because they want to misuse them for their vested interests, much like how they settled on the double ballot system to confuse the uneducated majority. 

Constitutional conclusion

If Nepali Congress, the CPN-UML and the UCPN (Maoist) deny people the right to self-determination, impose ethnicity-based federalism by cunning and refuse to activate fully proportional representation at all levels of Nepali public life, it is likely to derail the peace process. Why are the Brahmin legislators and those executing governance resisting equitable sharing? Are the marginalised identities any less capable?

To look at the Adivasi Janajati issues with facts and figures and in relationship to all the castes is to bring balance to the national polity. No leader ever invested in the nationalism of Nepal. All past leaders concentrated more on gathering power rather than on empowering the people. We sang Shri Man Gambhira Nepali till our throats were  sore, and see where we are today. Can’t we even recognise our own failings? 

Establishing democracy in Nepal is liberating Nepalis from the physical conquest of one-caste rule (akikaran) and psychological subjugation (adhikaran) of the laws of Manu. If those who draft the constitution once again fail to understand that Nepal constitutes the sum total of its castes and ethnic groups and there is plenty of space for national consolidation, we will end up with sand in our mouths. 

To be able to discuss matters of such deep consequences, which have a direct bearing on our history and nationalism with sincerity, respect and concern is to appreciate the concerns of all people. Without aggregating the political, social, educational, cultural and economic pro-original rights of all the marginalised communities in the drafting of the constitution, the territorial expression of identities will only intensify. 

Heralding Federal Democratic Republic of Nepal poses harsh challenges in terms of legislating as well as executing decisions. Restructuring the federal state and system cannot alone empower the Adivasi Janajatis, Dalits and other marginalised communities and boost the nation-building process. For that, it is imperative to address the provisions of agradhikar in the new constitution.

published in the 'Kathmandu Post'
January 31st, 2010

1 comment:

Keith D. Leslie said...

hi, anonymous! what is your college assignment? i'm glad that shakun's article was helpful for you. best, kdl