The exclusion of IP in the CA's decision-making processes
DEV KUMAR SUNUWAR
The IP wanted the most from the new Constitution which would guarantee an autonomous federal state based on racial, historical, lingual and geographical existence.
Nepal’s indigenous people (IP) had hoped that their important stake in the historic Constitution-drafting process would be recognized and that, in the final, new Constitution, their rights would be legally protected in a manner consistent with the basic principles of ILO Convention 169.
But their expectations were frustrated, as the Constitution-making process ended without writing a Constitution on May, 28, thereby raising controversy over their main demand – identity-based federalism.
The IP wanted the most from the new Constitution which would guarantee an autonomous federal state based on racial, historical, lingual and geographical existence. Even at the last minute the dissolution of the Constituent Assembly (CA), an alliance between the Indigenous People (Janjati) caucus, Madhesi parties, and the UCPN-Maoists led to a signed declaration by over two-thirds of the CA members in support of federal models then approved by a constitutional sub-committee and State Restructuring Commission (SRC). The declaration, however, did not translate into a political reality since the CA ended without the issue being put to vote.
The population of IP (so far 59 IP are recognized by the government) fell to 35% in the 2011 Census from 37.5% in 2001, while they claim themselves to represent 50% of the total population of Nepal.
Cynical deeds of dominant groups-led ending of CA
In April 2008, an election was held which shaped Nepal’s first ever CA, made up of 601 members out of whom some 218 were from indigenous communities. But from the initial stage of the CA, IP were dissatisfied as that the CA proceeded without their adequate indigenous consultation and primary participation through their freely chosen representatives.
Sharing their experiences, former indigenous CA members stated that no political parties have expressed a will to include indigenous people in their higher echelons. In fact, IP had been excluded from the decision-making processes in the historic Constitution-making process. The so called ‘high caste’ Hindu elite, who are non-indigenous and who have dominated Nepal for more than two centuries, have exclusive control over the higher positions in the political parties, and therefore, over the Constitution-writing process as a whole.
They further felt that there was no meaningful indigenous representation within the CA at the main decision-making level because indigenous representatives were more accountable to their political parties than their communities. Though indigenous CA members appeared to be representing the constitutional concerns of IPs, it was doubtful from the beginning that their concerns would actually be addressed so long as their party agendas were a priority.
Gobinda Raj Chepang, the representative of the Chepangs (a highly marginalized IP in Nepal) nominated by CPN-Maoist-Gorkha, says, “The so called ‘Hindu elites,’ who are non-indigenous, dominate and exclusively control the decision-making process. They verbally told us that they would ensure the IPs rights in the Constitution. But then, we were quite skeptical that would be implemented in practice.”
Another CA Member, Rukmani Tharu, the representatives of Tharu IP nominated by Sanghiya Loktantrik Rastriya Manch, has similar tales to tell. She says, “Although there seemed to have been such a large number of CA members from indigenous communities, in reality, they represented various political parties, like CPN-Maoist, Nepali Congress, CPN-UML, Sadbhawana etc. We indigenous CA members couldn’t enjoy our right of personal judgment. Therefore, we were fearful that IP agendas wouldn’t be addressed and their rights wouldn’t be ensured in the new Constitution.”
As a result, they weren’t fully committed to speaking up for their communities in the CA. Because the indigenous representatives were appointed by the political parties, they weren’t free to put forth their agenda, which is purely in their communities’ interest, because if the representatives went against their party’s policy, they would be punished. Thus, it was certain that the ultimate political decisions would be orchestrated by the political parties, not the CA members themselves. This view is provided by Tul Bahadur Majhi who was nominated by UCPN-Maoist from Sindhuli as a representative of the Majhi indigenous communities.
He adds, “It was said that nothing would be issued by party whips in the CA. But we IP CA members were nominated by different political parties. For example, I was nominated by UCPN-Moist for the Majhi Community. Therefore, none of us IP CA members had the freedom to put forth our agendas and the concerns of the respective communities because we couldn’t go against the political parties’ voices, lines, and policies.”
Photos: Dev Kumar Sunuwar
Barriers in the CA for IP representatives
It doesn’t matter how big or small is the number that represents a community; it’s the active participation and bold presentation of the views of that community that makes the difference. However, the indigenous CA members struggled a lot due to their lack of experience in facing the masses and because of language difficulties.
Dal Kumari Sunuwar, the lone representative of the Sunuwar indigenous communities nominated by RPP from Ramechhap, says, “We IP CA members weren’t allowed to speak out in our mother tongue and compelled to speak in Nepali. Many of us could articulate our ideas, feelings and concerns properly in the CA if we were allowed to speak in our mother tongues. For other non-indigenous CA members whose communication language is Nepali, it was easier for them to participate actively.
Undoubtedly, the most important aspect of the idea of forming a Constituent Assembly was to make a pro-public Constitution by collecting the suggestions of people from different walks of life all across the country. But indigenous CA members were excluded from making the questionnaires for collecting public opinions, according to Rukmani Tharu.
She says, “The secretariat of the 10 thematic committees in the CA prepared the questionnaires with the objectives to collect the public opinions. I myself was a member of the Constitution Committee. But without giving me a chance to analyze the questionnaires, I was deployed for opinion collection. And the questionnaires were also very complicated. Thus, rather than giving their opinions, the public complained and raised their grievances instead.”
The result of the denial of indigenous participation in survey formulation was that the public complained a lot rather than giving their opinions and suggestions.
Shanti Maya Pakhin (Tamang), Dolakha, CPN-UML, says, the questionnaire were too theoretical. Therefore, it was beyond the understanding of the general people. The questions were complicated even for highly educated CA members to comprehend.
It was touted that the CA used different approaches to collect the opinions of different people. But people in many parts of the country, including in Kathmandu Valley, never even knew when the team of opinion collectors came and went away.
Buddhi Ratna Manandhar of Nepa Rastriya Party, says, “The fact is that collecting opinions was just a formal process to dupe people. Kathmandu isn’t a far-flung remote part of the country, but even Kathmanduties never knew when the enumerators came and went.”
Former President of Nepal Federation of Nepalese Indigenous Nationalities (NEFIN) and CA Member Pasang Sherpa says that IPare excluded historically not only in politics and social issues but also in the Constitution making process. Though such a large number of IP were represented in the CA in Nepal’s history, they had no access to the decision making process. So their voices are often marginalized. Therefore, I was skeptical that IP rights wouldn’t be stipulated in the Constitution in the end. It came true.”
The genesis of the demands of identity-based federalism
Prior to the territorial expansion of the nation in 1768, Nepal’s different indigenous nationalities had sovereign states and autonomous homelands over which they exercised the right of self-governance. Following the imposition of the National Code of 1854, however, the government of Nepal institutionalized an orthodox Hindu religious and cultural system, including a caste hierarchy, on indigenous people. Indigenous people have resisted the imposition of this homogenized state policy at various points in Nepali history. They protested with particular strength in 1950 in the birth of democracy, and in 1990 when democracy was reinstated in the country.
The 1991 Constitution that accompanied the reinstatement of democracy retained certain discriminatory provisions against indigenous people, women, and Dalits. The Maoists started their movement in 1996, attacking security checkpoints in rural areas but were unable to gain momentum. In 1999, the Maoists changed their movement strategy to broaden their support base, incorporating the indigenous people’ demands for the rights to equal participation in decision-making processes, self-determination, autonomy, self-governance, federalism, and access to state services into their agenda for the restructuring of the State.
Having garnered broader support from the marginalized communities, the Maoist movement was ultimately successful in uprooting the 250-year-old monarchial system. The newly unveiled Interim Constitution 2007 promised to hold CA and ensure the rights of all marginalized groups. But it remained silent on federalism, which led Madhesi protestors to oppose the Constitution and it erupted spontaneous people’s movement across the country. Twenty-one days and over two dozen deaths later, the political parties decided that Nepal would be a federal state. In April 2008, the Nepali people voted for members to the CA, filled with renewed hopes and great expectations. The election shaped Nepal’s first Constituent Assembly with 601 members, 218 of whom are from indigenous communities. This detour into history is essential to understand the genesis of the federal demand.
The way forward
Nepal’s Interim Constitution recognizes that indigenous people have suffered injustices at the hands of the State and further expresses the State’s commitment to ensure justice for IP and other marginalized groups, such as Dalits, women, Madhesis, and IPs who have long been excluded and whose rights have been denied over the ages.
But the IP representatives view that the attitude of those with power in the State mechanism raises doubts about the chances of the State realizing its promises.
“We had discussions in the CA on equal participation and meaningful representation in all state mechanism and decision-making levels. But the challenge is that the old mindset of unitary and centralized policy supporters is reluctant to share the power and ensure the rights of IPs,” says Jayapuri Gharti Magar of CPN-Maoist.
Lucky Sherpa, CPN-UML, says, “There have been conflicts in many different periods of Nepali history, mostly because one group in society was able to enjoy privileges while another group was excluded. At times, this unequal access to benefits was even stipulated by the law. If the aim of building the new Nepal and new Constitution is to end conflict, then there should be ensured proportional representation in every state mechanism, their rights and identity to be fully recognized in the Constitution-drafting process.”
“We Indigenous People want a Constitution that guarantees our rights to self-determination and autonomous federal states based on racial, historical, lingual, and geographical existence,” says Rukmini Tharu. “In addition, the Constitution also should guarantee our equal and inclusive participation based on population in each state mechanism, from local to the central level.”
This piece is based on the IP CA Members’ experiences during and after the CA dissolution. The interviews were taken for a documentary entitled “Indigenous People and Building a New Nepal.”
Sunuwar is a freelance journalist associated with center for investigative journalism.