| Constitution Amendment: does it incorporate the spirit of Janajati ?

- Arjun Limbu

Mainstream political parties seem to be ready to amend the Constitution of the Kingdom of Nepal 1990 to resolve the present crisis in Nepal. The article 116 (1) and (2) of the Constitution clearly stipulate that with two-third majority of the Parliament can amend or repeal any article of the constitution without prejudicing the spirit of the preamble of the Constitution. Despite the state of emergency in the country, civic society comprised mainly of the Indigenous Peoples/ Nationalities (Aadivasi/Janajati), Dalits and women are demanding that their issues be incorporated in the constitutional amendment in order to secure their rights.
The Constitution of Nepal 1990 defines Nepal as multi-lingual and multi-ethnic country. However, it does not reflect the reality of the country in terms of religion rather it declares Hindu state while defining the country. In fact, Nepal's population is comprised of many religions: Hindu, Buddhist, Kirat, Christians, Muslim and others. This shows that the Constitution does not represent the religious feelings and sentiments of the people as a whole.
Despite the recognition of Nepal as multi-ethnic and multi-lingual country, the articles of the Constitution are found to be either restrictive or insufficient to secure the social, political, cultural, linguistic and economic rights of Aadivasi/Janajati. It seems the provisions of the Constitution are not derived from the spirit of multi-ethnic and multi-lingual characteristics of the country. For instance, the articles 18(2) states," Each community shall have the right to operate schools up to primary level in its own mother tongue for imparting education to its children." This provision does not fulfill the desire of Aadivasi/Janajati. In other words, it can be said that the Constitution considers the diversity as a threat to the communal harmony and factors to the territorial disintegration rather than the source of unity in diversity.

Aadivasi/Janajati Issues

Government of Nepal has identified 59 ethnic groups as Aadivasi/Janajati in Nepal on the basis of their distinct language, culture and oral or written history. According to the national census 1991, the population of the Aadivasi/Janajati constitutes 34.6 per cent of the total population of Nepal.
Forty-five Aadivasi/ Janajati out of 59 are able to establish their own organisations with the objectives to preserve, promote culture, language and to uplift socio-economic condition of their people. There is an umbrella organisation of the Aadivasi/Janajatis organisations known as Nepal Federation of Nationalities (NEFEN). It is established with a view to advocating common issues of Aadivasi/Janajati of Nepal. Like other common issues of Aadivasi/Janajati NEFEN has taken initiatives to raise the issues of Aadivasi/Janajati to be addressed in the constitutional amendment.
NEFEN has identified 18 most important issues of Aadivasi/Janajati to be amended or repealed in the amended constitution. These issues range from cultural rights to political rights. Broadly speaking, these issues can be put mainly into four categories.
First, the state should be declared secular state. This is not a new issue introduced by the Aadivasi/Janajati. The voice of secular state was also even raised during the drafting of the democratic constitution in 1990. Nepalese society is diverse not only in ethnicity and linguistic but also diverse in religion and culture. It is a well-known fact that there are Hindu, Buddhists, Kirat, Muslim, Christians and others. Someone may argue that what difference would it make to people of other faith if Nepal is a Hindu state? Indeed, it does make a difference in two ways. On the one hand, it hurts the profound sentiment of other religious communities in the country; on the other hand, it allows the state to be involved in promoting Hindu religion while discriminating other religious communities. The democratic state has a responsibility to treat all the religious communities on equal footing. It is also unfair and undemocratic to spend taxpayer's money to promote a particular religion.
Second, Aadivasi/Janajati have been advocating the issue of equal treatment of all languages spoken in the country. They are strongly against the provision of constitution that differentiates Nepali language from other mother tongues stating that the former is called the 'language of Nation' and the latter is known as 'national language'. It is obvious that the Nepali language has played an important role for a common mode of communication among different ethnic groups of Nepal as a lingua franca. However, it does not mean that it should be placed in a superior position to other mother tongues with the coining of a new term 'language of Nation'. It is also important to note here that these provisions provided basic grounds to the Supreme Court to deter the use of Newari language in the Kathmandu Metropolitan and of Maithili language (national languages) in Rajbiraj Municipality and Danusha District Committee as an official language in addition to Nepali language. The three local governments made the decision to use the languages according to the Local Autonomy Act 2055.
The decision was legally challenged at the Supreme Court. The Supreme Court gave its verdict against the use of national languages: Newari and Maithili as an official language besides Nepali language declaring that the use of national language were unconstitutional and illegal. The Court verdict clearly revealed that the provision related to the use of national language as an official language besides Nepali language needs to be incorporated in the constitutional amendment.
Third, the reservation provision should be guaranteed for Indigenous Aadivasi/Janajati and Dalits to increase their involvement in employment, education and health sectors. Aadivasi/Janajatis do not have access to opportunity in the field of employment, education and health. For instance, facts and figures shows that more than 92 per cent government jobs is still held by upper caste: Bahun and Chhetri. The absence of Aadivasi/Janajati in government is due to age-long historical discrimination, exploitation and suppression. The reservation in the sense of positive discrimination for the time being should be adopted temporarily to correct and compensate the historical discrimination and deprivation. The Aadivasi/Janajati must be given time and opportunity to enable them to rise to the standard whereby they can compete on fair grounds. In similar fashion, the reservation provision must be applied to education and other fields.
Finally, Aadivasi/Janajati have observed that there is lack of their representation in the decision making level. They are still unable to participate in making decisions for their own future. They do not even have the right to decide on the matters of their concern: culture, language and policy for their own development. It is ironic to say that somebody else decides what is good and what is bad for them? To avoid this situation, they raised the issue of converting the present National Assembly into the Assembly of Nationalities. The proposal is that the Assembly of Nationalities which is to be composed of representatives from all marginalised, Aadivasi/Janajati, linguistic and religious minorities should have a role in decision making regarding incorporation of basic social, economic, political and cultural norms and values of Nepal in making laws and legislation.
In addition, Indigenous/Nationalities have included the issues of the women to be addressed in the amended constitution. One such example is the issue in which the Constitution prevents a man of foreign nationality from acquiring Nepali citzenship even if he is married to a Nepali citizen. Indigenous/Nationalities have demanded that: " A foreign man who marries a Nepali woman can acquire Nepali citizenship."
Response of Political Parties

Democracy places people at the centre of its principle. The democratic Constitution of Nepal 1990 stipulates that the source of sovereign authority of the independent and sovereign Nepal is inherent in the people. However, the political parties in Nepal do not pay attention to develop mechanism to convert the spirit of democracy into reality. There is lack of responsive system to the voices of people in our democratic system. Due to this weakness political parties have failed to respond to the issues of Aadivasi/Janajatis in the process of constitutional amendment.
All the political parties, ruling or opposition, big or small, are in favour of the amendment of the Constitution. In the process of amending Constitution the ruling party Nepali congress, main opposition party Communist Party of Nepal (UML), National Democratic Party (RPP) and Nepal Sadvawana Party have made public their agenda for the constitutional amendment. None of the political parties agenda have incorporated the Aadivasi/Janajatis issues. Political parties derived the agendas placing the power politics at the centre. They are not serious even to address the socio-economic problems facing the country today.

Does the amendment incorporate Janajati issue?

The agenda of political parties clearly indicated that there is no chance to amend or repeal the articles of the Constitution in favour of addressing Aadivasi/Janajati issues. It is obvious that political parties exercise the power in Parliament.
Needless to say, the political parties have authority to amend the Constitution. However, Aadibasi/Janajati are also responsible for advocating their issues strongly. The Aadivasi/Janajati need to be empowered themselves and there is an urgent need to change their advocacy strategies. Now taking into consideration the attitude of the political parties towards the issues of Aadivasi/Janajati pertaining to constitutional amendment, it can be said that the question of whether the constitutional amendment will incorporate Aadivasi/Janajati issue or not depends on the strength Aadivasi/Janajatis advocacy and lobbying the political parties. At the same time it is equally important that mainstream political parties should respond to the voices of Aadivasi/Janajati to incorporate their issues in the constitutional amendment. This will ensure the consolidation of multiparty democracy by promoting the bond of unity in diversity.

Political parties should stop being stingy

As pointed out by rights and janajati activists, political parties have remained stingy in transforming their commitment-to mainstream the oppressed and the disadvantaged groups - into action.
Going by experience, issues such as empowerment, reservation or mainstreaming the backward section of the society moreover, has remained a political slogan. For the double standards of political power centres, raise issues but don't put them into action has been the mantra. Political or state administered intervention so far has been superficial.
Thus to say, political leadership of the country by and large have been saying one thing while doing another. The disparity between the commitments carried in the manifestoes and speeches of the political parties, and their minimal implementation - even when the parties are voted to power - is a tell tale illustration at that.
This sad-but-true reality was further laid bare when the major political forces of the country got together to chalk out reforms and constitutional amendments. The much-talked about and debated constitutional amendments were meant to overcome social, political and economic crises facing the country.
As said, the proposed statute changes, of others, were also aimed at the uplift of the oppressed and disadvantaged groups of the society. The logic was: such reforms would check the Maoist problem. That is they are essential and inevitable, was the refrain. However, as things turned out, proposals for the much-highlighted reforms failed to take up the janajati concerns.
The ruling Nepali Congress including the main opposition Communist Party of Nepal (UML) came short to accommodate the issues of genuine concern. Both the 'democratic' parties failed to consider or take up the indigenous demands in their proposal for constitutional amendment. The fact either elucidates that they are yet to accept the concerns, or are simply irresponsible if not double standard.
The indigenous nationalities groups have been demanding a secular state, in place of the current Hindu state. Consensus democracy, reservation, proper representation, equal language rights, right to self-determination, transforming the National Assembly into House of Nationalities, equal access to resources and decision-making, also feature in the demands.
However, even when the 'responsible' political parties, represented in the Parliament, joined hands for the proposed reforms, they eventually failed to address the genuine concerns of the majority nationalities groups. As it unfolded, the said constitution amendment remained limited within the proposals of the political parties. The people's representatives thereby, failed to uphold people's aspirations and execute measures to end, or at least check the prevalent social, political and economic injustice in the country.
It is here the political sphere needs to carry out a soul searching. Rethink and review their approach and not overlook the ills plaguing the country. Given the circumstances, they just cannot afford to put aside the demands put up by the backward groups and oppressed communities.
Until so happens, overall development, preservation and enhancement of religion, language, art, culture, knowledge, skills of the janajatis will not be realised. That is why it is essential the political forces rise above politics of petty interest and do away with stinginess. At this juncture, they just cannot lay back and let a large chunk of the Nepali society continue to suffer.