Exclusionary Processes and Constitution Building in Nepal
Seira Tamang
7132 words
Abstract:
The current constitution-building exercise in Nepal must be seen in the context of a history of an exclusionary State run by high-caste, hill, male elites. Past democratic transitions, including the 1990 change, failed to ensure the rights, participation and representation of excluded groups. The April 2006 peoples’ movement, the Comprehensive Peace Agreement, the election to the Constituent Assembly of the most representative elected body in Nepal’s history and the establishment of a Republic, has raised hopes for real change. However, current tendencies to narrowly define the peace process solely in terms of a political settlement between the Maoists and other dominant political parties has marginalized larger commitments made in the peace agreement to tackle deep-seated economic, political and social inequalities. In the context of a highly politicized climate and the rise of identity politics, such an orientation risks jeopardizing long term, sustainable peace building in Nepal.
Keywords: Nepal, the State, constitution building, constituent assembly, excluded groups
Official Affiliation: Seira Tamang, Ph.D is Chairperson of Martin Chautari, a research and policy institute based in Kathmandu, Nepal.
Introduction
These have been momentous years for Nepali citizens. Historically ruled over by Rana elites and Shah kings, the writing of the constitution by the Constituent Assembly (CA) is seen as the final transformation of Nepalis from subjects to citizens. Nepal has had a total of six Constitutions. The four Constitutions prior to 1990 were bestowed on the people by the ruling elite. The 1990 Constitution which followed the 1990 people’s movement (Jana Andolan 1) was officially promulgated by the then king and was drafted by an elite behind closed doors with some input from people. The relatively progressive and inclusive current Interim Constitution of 2007 was declared by the re-instated Parliament following the April 2006 democracy movement (Jana Andolan 2). However, while expectations were high following the CA elections of April 2008 which resulted in the most diverse and representative body in Nepal’s history, progress in the Constitution writing process has been slow and the initial May 2010 deadline was missed. However, hopes remain for the completion of the Constitution within the newly established date of May 2011.
The nature of these hopes and expectations has to be seen in the context of the historically exclusionary nature of the Nepali State. Ruled by Rana and Shah elites until 1990, the post 1990 democratic era brought little in terms of real change for the poor and excluded groups of women, Dalit, Adivasi Janajatis[1] (indigenous groups) and Madhesis.[2] The new ruling elite continued to be upper-caste Hindu men who showed little concern for the rights and welfare of the marginalized. While individuals, groups and organizations have worked in the past to address their concerns, it was the Communist Party of Nepal (Maoist) (CPN-Maoist), who were able to capture and mobilize the sentiments and energy of the excluded in their ten year “People’s War” from 1996 to 2006. The seizure of power by the then king Gyanendra from 2002 to 2005 highlighted not only the weaknesses and contradictions of the 1990 constitution. It also brought to the fore the necessity of restructuring the Nepali state in order to achieve real peace, democracy and justice.
This paper seeks to provide a historical and political background for the present constitution-writing process. Beginning with an overview of the constitutions up to, and including, the 1990 Constitution, short analyses of women, Janajatis, Dalits and Madhesis and the manner in which they have been historically excluded follow. A summary of the weaknesses of post 1990 change and the consequent appeal of the CPN-Maoist is next. The mis-reading of the post April 2006 rise of identity politics by the new political elites, including the Maoists, and the ad-hoc nature of their responses is then discussed. This is followed by a discussion of the manner in which political dynamics inside and outside of the CA have restricted the ability of the issues of excluded groups to be fully and freely debated as was originally conceptualized. The article concludes with the argument that while the Comprehensive Peace Agreement (CPA) of 2006 devoted considerable space to commitments to address the issues of exclusion, the peace process has since then become narrowly defined. In the context of a highly politicized climate, raised political aspirations, little if any management of people’s expectations and the recent history of identity-based violent and non-violent protests against the State, this is short-sighted. Current narrow definitions of the obstacles to the peace process risks jeopardizing the long term peace building strategies which from the start included the issues of excluded citizens.
Constitutions and their Overview
As noted above, there have been a total of six Constitutions in Nepal’s history. The first written Constitution was declared on 26 January 1948 by the then Prime Minister (PM) Padma Shumsher Rana, a member of the autocratic Rana family which had ruled for over a hundred years by sidelining the royal Shah dynasty. While this Constitution had been made in the face of increasing pressures to democratize Nepal, it was never implemented as the Rana regime collapsed. King Tribhuvan was subsequently restored to power and on 18 February 1951, he promised a democratic constitution to be framed by a constituent assembly elected by the people. The second written, but first to be implemented constitution– the Interim Government Act, 1951 – was passed on 30 March 1951. It was later amended by the king to concentrate royal power, despite opposition from then functioning political parties. Tribhuvan’s son Mahendra, continued this trend after his ascendance to the throne after the death of his father in 1955.
Ignoring his father’s promise for constituent assembly elections, king Mahendra promulgated the Constitution of the Kingdom of Nepal, 1959 a week before general elections were held. The first elected government formed on 27 May 1959 was short-lived, dissolved 18 months later by the king who then banned political parties and introduced the Panchayat system of democracy which lasted until 1990. Ostensibly a democracy more “suited to Nepali soil”, the system centralized autocratic royal power even as “Panchayats” (councils) were established at various levels. The fourth written constitution of 16 December 1962 incorporated these changes. This constitution was amended three times, once by king Mahendra on 27 January 1967, and twice by his son Birendra on 12 December 1975 and 15 December 1980. The first two amendments sought to increase the power of the autocratic system, while the third was catalyzed by student demands for democracy and a referendum (held on 2 May 1979) which while retaining the Panchayat system, led to some democratic reforms.
Following the 1990 people’s movement –Jana Andolan 1 - Nepal entered the period of multi-party democracy. Under pressure, king Birenda created a nine-member Constitution Recommendation Commission and the 1990 Constitution was promulgated. It was, however, beset with controversy from the start. To begin with, the Commission was limited by a mandate to design a constitution with a constitutional monarchy within a parliamentary system. It was also drafted in a closed manner with pressure exerted by both the king and the army.[3] While public opinion was sought, the topics most highlighted by people – religion, ethnic and language rights – were not incorporated as demanded. The end document stated that sovereignty lay with “the Nepalese people” but the preamble read that the king (as opposed to the people) had promulgated the constitution. None-the-less, Nepal received its first democratic constitution.
In 1990, many left parties had demanded an interim constitution and elections to a CA.[4] While some refused to recognize the new constitution and boycotted the 1991 general elections, others - including the Maoists who were then known as the CPN (Unity Center) – did not. [5] Mishra states that the Maoists at that time, in their Unity Center avatar, had argued that the 1990 constitution had mixed results, with both important but limited gains but yet constituting a net gain for imperialism and expansionism.[6] In the 40 point demands put forward by the Maoists before they launched their “People’s War”, they had demanded a new constitution be drafted by elected representatives to establish a people’s democratic system.[7] However, it was not until the September 2001 peace talks that the demands for a CA were specified.[8]
This demand gained more widespread appeal following the then king Gyanendra’s dismissal of the democratically elected government in 2002 and rule by proxy, and his more overt takeover in February 2005. By April 2005, most major parties endorsed the idea of a CA.[9] The agreement between the CPN-Maoist and the mainstream political parties, then known as the Seven Party Alliance (SPA) on 22 November of 2005, led to the merging of forces against the king, changing the formerly triangular nature of the conflict between the king, the mainstream political parties and the Maoists. It also led eventually to the massive participation of people in the April 2006 Jana Andolan 2 and reinforced the popular imagination of people taking control of their own destiny.
After the king relinquished power under pressure on 24 April 2006 and reinstated the dissolved House of Representatives, the SPA led by the NC formed the government. On 16 June 2006, the SPA and CPN-Maoist signed a eight point agreement which included the clause to “draft an interim constitution based on the twelve-point understanding and the ceasefire Code of Conduct” and to announce the dates for the CA election. An Interim Constitution Drafting Committee (ICDC) was formed which eventually produced a draft on 25 August 2006, albeit with important gaps and/or options on key political issues. The final document was produced on 15 December 2006 and was promulgated by the House of Representatives a month later on 15 January 2007. In the meanwhile, the CPN-Maoist joined parliament in January of 2007 and the government in April 2007 as part of the peace process. The Interim Constitution has since been amended a total of eight times[10]; three before the April 2008 CA elections, and five after.
Importantly, the Comprehensive Peace Accord signed on 21 November 2006 committed to
“carryout an inclusive, democratic and progressive structuring of the state by eliminating the current centralized and unitary form of the state in order to address problems related to women, Dalit, indigenous ethnic (Adivasi Janajati) people, Madhesi, oppressed, neglected and minority communities and backward regions by ending discrimination based on class, caste, language, gender, culture, religion, and region”.
The document is important not only for the consensus on key issues of peace-building but as a commitment to tackling deep-seated economic and social inequalities. The next section discusses the importance of a such a commitment given Nepal’s history of exclusion.
History of Exclusion
Since the unification of Nepal in the late 18th century, political and economic dominance has been maintained by high caste hill people (Pahadis) and it has been their language, Nepali, which is the national language of Nepal. However, it was only in the Panchayat years that the centralized nation-state building process and the active creation of “the Nepali” political community began in earnest. Along with the goal of building and legitimating the autocratic Panchayat “democracy” - “suited to the Nepali soil” – the Panchayat regime focused on constituting a national culture built on the triad of Hinduism, the Nepali language and the monarchy[11] with a specific form of Nepali national history as one of the main tools used in the formation and dissemination of Panchayati sponsored nationalism.[12] The legal and cultural coding framework of the Muluki Ain (MA) established in 1854 by the ruling Hindu Rana elite provided the Hindu ideological base for the State of Nepal. A comprehensive legal code, the MA divided and ranked the entire population into a caste hierarchy with Bahun and Chhetri[13] castes at the top, Tibeto-Burman “tribes”[14] in the middle and untouchable castes (today’s Dalits) at the bottom.[15] The creation of a national caste system defined the manner by which all the heterogeneous groups related to others as well as to the State and reinforced the cultural dominance of Hindu norms. The influence of this system continues today.
Importantly, the efforts to create a national story and identity required the deleting of the heterogeneous nature of Nepal’s population. For example, the 1956 National Education Planning Commissions’ plan to encourage the growth of nationalism within the education system was predicated on the extinction of other languages.[16] The Panchayat promulgated 1962 Constitution, apart from declaring Nepal as a “Hindu” State, nowhere explicitly recognized the Nepali society as multi-ethnic, multi-lingual and multi-religious in nature. Despite the removal of official clauses of discrimination, any “claim to ethnic identity was reduced to political subversion… Thus, although equality was claimed, it could apparently only be achieved by suppressing differences”.[17]
In terms of the Janajatis, who according to the 2001 census constituted 37.2% of the population,[18] those who spoke in support of Janajati concerns were accused of being communal, anti-national, anti-monarchical, etc. Religion and language together formed a strong basis for discrimination against Nepalis who were not Hindus or who were “low” caste Hindus, and against those whose mother tongue was not Nepali. There were economic dimensions to this domination and exclusion as well; the State distributed land under its control to loyal civil and military servants from the caste groups while placing many tax burdens on the peasants, low caste and Janajati groups.[19] In terms of languages, the promotion of Nepali as the state’s official language occurred at the expense of more than 100 other languages spoken in the country.