Nepal’s journey towards a new constitution and state restructuring began with a promise that it would ensure the rights of the marginalised: the indigenous peoples, Dalits, Madhesis, Muslims and other minorities.   This commitment to ensure equality and to end discrimination is not only mentioned in the Comprehensive Peace Accord, the Interim Constitution 2007 and the Constituent Assembly (CA) election manifestos of the political parties but also in the numerous agreements signed by the government of Nepal with various agitating groups who have experienced historical injustice.   The state, through those agreements, promised that their identities will be recognised and respected, political autonomy ensured, and the policies of inclusion institutionalised, among others.

Undoing the gains

The new constitution, nevertheless, seems to have conveniently forgetten many of these promises and overlooked the very purpose for which the task of writing a new constitution was undertaken.   As document derived from the first CA recommendations and resolutions, the new constitution does give continuity to a number of affirmative actions for the marginalised. But it appears to have missed the fundamental points. While the political parties steering the CA, may claim the new constitution to be the most progressive statute, a closer look reveals that the provisions on the key issues of the rights of the marginalised and minorities have unfortunately been rendered obscure.  By the time the constitutional clauses reached the stage for voting in CA, many articles on minority rights had been omitted, and their wordings either fragmented or distorted.  As a result,  the essence of many provisions has become unrecognisable.

Take the issue of secularism for  example.  The separation of religion and state was one of the aspirations of the marginalised groups and liberals to be free from the domination of a single religion as well as to democratise the state.  In Article 4.1 of the draft constitution submitted as bill, the state of Nepal was defined as “an independent, indivisible, sovereign, secular, inclusive, socialism-oriented, democratic, federal republic”.   An amendment to the finalised version, however, provides an explanation on how the concept of secularism or dharma nirapechhyata should be understood in the context of Nepal.  The explanation reads, “for the purpose of this article, dharma nirapechhyata should be understood as protection of religion and culture that is being carried out from the sanatana”.  The word ‘sanatana has two meanings. The first meaning is ‘eternal dharma’ also used alternatively to mean Hindu religion. The second meaning is ‘continuing from the ancient past’.  Given the composition of the sentence, it appears that the constitution has adopted the second meaning.  Nevertheless, it is subject to interpretation and if it indeed implies Hindu religion, the drafters of the statute have successfully defined secularism in such a way that Nepal reincarnates as a Hindu state, if not a kingdom, from the back door.  

Everyone included

To ensure the right to equality requires the identification of groups who have been denied equal rights in the past and special measures to address them.  To this end, Article 18.3 of the constitution lists the groups entitled to special measures. It states that “provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of socially or culturally backward women, Dalits, Adivasi, Adivasi Janajati, Madhesi, Tharu, Muslim, suppressed classes, backward class, minorities, marginalised, endangered communities, farmers, labourers,  youth, children, the aged, gender-based and sexually oriented minorities and the disabled or those who are physically or mentally incapacitated or citizens of backward regions and economically poor Khas Arya”.  It is noteworthy that the constitution recognises inequality and need for special provisions.  

Nevertheless, the list of the groups is so exhaustive—more than 20 groups—that virtually everyone now qualifies as a marginalised. And to say everyone is marginalised is equivalent to saying that no one is marginalised. Likewise, in the clause on right to equality, all the groups are enlisted in the right to social justice in Article 42.  While widening the scope of special measures to larger groups appears progressive, it effectively erases the discrimination faced by women, Dalits, Adivasi-Janajatis, Madeshis and Muslims who should have been identified as primary groups for such special measures.  For indigenous peoples, the constitution further creates problems by tampering with the definition of Adivasi-Janajatis. The constitution introduces an additional category ‘Adivasi’, as separate from Adivasi-Janajati, which is either an attempt to fragment the community or deny their identity.    

It is also surprising to note that there is no explicit mention of affirmative action and reservation in the new constitution for the socially and culturally discriminated.  Affirmative action and reservations are key measures adapted by most democratic countries in the world towards achieving restorative justice and social inclusion.

Omissions and misrepresentations

The right to use one’s mother tongue is another aspiration of the Adivasi-Janajatis and other linguistic minorities. The imposition of the Nepali language by the state, in which the Adivasi-Janajatis and other minorities, have low proficiency have barred them from access to information and opportunities for human development in the past. Furthermore, Nepali language was also used as a weapon of assimilation. The Adivasi-Janajatis would, thus, like to be able to speak in their native language in the government offices, court, schools and for public communication. While the constitution affirms that the country is multilingual and all the languages are ‘rastra bhasa’, it upholds only Nepali language, written in Devnagari script, as the official language.  Even in the federal provinces, according to Article 7.2, only the language spoken by the  ‘majority’ other than Nepali may be used as official language.  Language, for indigenous peoples and Madhesis, is a marker of identity, a window of opportunity and a matter of rights.  The denial of linguistic equality has a negative bearing on deliberative

democracy.

There is also an apprehension that issue of inclusion has included in the statute merely as tokenism. The Adivasi-Janajati and Madhesi Commissions do not have the status of constitutional bodies. The issues of the right to land and natural resources, self-determination, recognition of customary law raised by the Adivasi-Janajatis have been omitted altogether. The naming of the provinces, which bear a symbolic significance to the people, has been postponed even as the number and boundaries of the proposed provinces are being vehemently disputed.

These omissions and misrepresentations along with the fact that the constitution is being promulgated amidst mass protests and deaths of more than 40 people, speak volumes about the urgent need for accommodating rights of the marginalised and minorities, in good faith.

Lama Tamang, teaches at Central Department of Sociology/Anthropology at Tribhuvan University