Shakun's Latest 'Kathmandu Post" Piece on the New Constitution

Getting their way

by Shakun Sherchand Leslie, Laxman Tharu, Yogendra Chaudhary

LAXMAN THARU

Against the backdrop of the “Ek Madesh, Ek Pradesh” slogan and Adivasi Janajati’s demand for “identity rights”, the 601-member jumbo Constituent Assembly came into being. The Adivasi Janajati’s advice to Ian Martin, the then UNMIN representative, to settle the peace process before holding the election fell on deaf ears.

By dint of Jana Andolan II and virtue of the Interim Constitution, Nepalis were promised the drafting of a new constitution by May 28. For Adivasi Janajatis, Madeshi, Dalits and Muslims, this was an opportune time for their national integration through affirmative action.

The untimely drafting of the constitution will go against the grains of the 24-point, 9-point and 5-point agreements signed with the Madeshi, Adivasi Janajatis, Dalits and the marginalised communities respectively. The drafters have supplemented samabesi-samanupatik (inclusive-reservation) as bonus rights but backtracked from incorporating  “agradhikar” (restorative justice) and  “purna samanupatik” (equal rights through complete proportional representation) — which clearly expresses the desire of the marginalised groups for both human rights (their original rights) as well as citizen rights (democratic rights).

State restructuring

The Balkanisation of the country into 14 federal states on a hypothetical basis has led to such strange bedfellows as the Madeshi parties and the Tharus negotiating on a common ground.

The quixotic application of rule of law in delineating territories is clearly driven by the desire of gerrymandering. Many questions remain unanswered: Whom do Khaptad and Jadan states represent? When did Khasan hastily evolve into Karnali? Why does Khaptad angle its massive body in the northwest sneaking through Burang into China? When did the Tharus and Madeshis invite Narayani, a third entity, to take a positional command with Bihar? What rule of law justifies the mincing of Tharuhat into Awadh-Lumbini-Tharuhat while Western Tarai is hacked into Mithila-Bhojpur-Koch-Madesh? Why does Narayani spread its distorted tentacles into Newa, Tamsaling, Tamuwan, Magarat, Tharuhat and Mithila? Why are Tamangs in Dhading, Sindhuli, Kavre and Nuwakot harshly split from their communities and forced into Narayani and Sunkosi? 

The state restructuring has opened up strategic gateways to unmentioned Brahmin/ Chhetri territories for economic purposes and made it easy for them to divide and rule by gerrymandering in future elections. Deconstructing the identity reality to trigger conflicts in terms of language, religious, and cultural rights has thus confused assimilation policies.

A donut constitution

If state sovereignty and authority is vested in Nepali citizens (Interim Constitution, Article-2) and all Nepalis collectively own the state, then the state cannot continue to be the blueprint of one gene pool as is evident through the genetic engineering of 240 years of internal history, although the nation itself has characteristics of a multi-ethnic, multi-lingual, multi-cultural state (Interim Constitution — Article-3).

Ethnic federalism in Nepal exercises identity, culture, religion and secured space against the “intellectual” manufactured nationalism of the state. Although Nepal has overlapping identities, the marginalised groups/cultures want past errors to be corrected.  The biggest constitutional challenge of Nepal is building cohesiveness through trust-building mechanisms and equality as the basis of the law. There is a lack of political will in accommodating the minorities. Party alliances and personal gains override all concerns for drafting a peoples’ constitution.

The capacity for variety is the strength of federalism. Promotion of mono-caste rule is detrimental to non-homogeneous aspirations of the multi-culturally diverse groups. The diverse groups see their identity as incompatible with the national identity, promoted by a fledgling democracy and nurtured by immature, political bickering.

The CA is heading into a tailspin as its members are mobilizing communities for future movements on one hand; and on the other, the ethnic demands for redemption have not abated. No constitution gains legality without the sanction of citizens. The one-sided sermons of the political parties will keep the progressive document from empowering and fulfilling peoples’ aspirations for rights, liberties and opportunities.

The constitution drafters would expend energy wisely in taking the aspirations of the marginalised groups as the key concern in bridging social and economic disparities. As constitutional watchdogs for social justice, they are determined to follow the constitutional process. Nepal is partner to the ratification act of ILO Convention Article 6 and Declaration’s Article 18. In 1979, Nepal ratified the elimination of racism and discrimination (CERD)-1969), so Nepal is obligated to practice the ethics of non-discrimination at every level.

The dialogue for social inclusion will read fictitious if the demands of the marginalised groups are not recognised as justifiable, natural demands of a social organism. The CA is not a magic bullet for social redresses. The major political parties are focusing too much energy on the political process rather than on the rule of law. Their brute force is an expression of the unchecked liberty of dominant forces, driving the marginalised groups to take flight.

Spring of 2010 is going to herald discontent, with the most odd but necessary alliances joining forces while the CA will be filibustering to delay issues important in the drafting of the constitution before it is approved by Nepali citizens. The state restructuring must not prove to be yet another accident of history, but an act of territorial integrity. Right now, the state restructuring is immersed in too much history juxtaposed against too little geography.