“If you want to learn how a small and powerful minority can perpetuate its domination over the vast majority for centuries, Nepal’s high caste leaders will have much to teach you,” says Dr Chaitanya Subba, a well-known campaigner for the rights of Adivasi Janajatis, the indigenous nationalities of Nepal. In his view, the recent promulgation of the new constitution represents yet another triumph of the mighty few over the subjugated masses of Nepal. The key demands of the marginalised – identity-based federalism, proportional representation, and secularism – have been reduced to a sham in the new constitution.
Federalism based on identity has been the rallying cry of Janajatis for the past decade. For centuries, the Nepali state excluded and discriminated against them on the basis of their identity, erasing their cultures, languages, religions, economic systems and ways of life. Therefore, they believe that measures to redress past injustices must necessarily address their concerns related to identity. In practice, this would mean that provinces in federal Nepal should encompass the territories to which Janajatis have deep historical ties. People in provinces would have a primary say in matters that affect them – how to use their natural resources, whom to elect to local bodies, which language to use in offices, courts and schools, and what constitutes development and well-being.
In each province, there would be policies to reverse the effects of domination by the centralised and unitary Hindu state. A public school in a Tamang-speaking village would recruit teachers who understand the Tamang language and teach a curriculum that reflects Tamang history and culture. Communities whose cultural and economic survival is intimately linked to the river and forests, such as Botes and Majhis, would not be stripped of their traditional livelihoods in the name of development or conservation. Kathmandu would no longer have free reign to extract local resources. Multinational banks and Nepali private investors who want to build hydropower plants and resorts in areas inhabited by Janajatis would need to consult locals and gain their support before launching their mega projects. The state would seek to strengthen rather than undermine traditional governing institutions, such as the mukhiya system of the Thakali and the badhgar system of Tharus. Elected officials and bureaucrats at the local level would be drawn from the very population they are meant to serve. They would be empowered to take decisions that are currently the prerogative of faraway officials in ministries in Kathmandu.
By the time Nepal’s civil war ended in 2006, the demand for federalism had gained such widespread momentum that Nepal’s traditional political parties had no option but to accept it. The first constituent assembly (2008-2012) held substantial debates on models of federalism, and came up with a report stating that the identity of local populations should be a principal basis for the delineation of provinces. But during constitutional negotiations earlier this year, this principle was almost completely ignored. A few leaders from the large parties unilaterally decided to establish a federal structure that would allow high caste groups to continue their political – and by extension economic and cultural – domination.
“The logic behind the proposed state structure is clear,” says advocate Shankar Limbu, secretary of the Lawyers Association for the Human Rights of Indigenous Peoples. “Divide and scatter the marginalised populations, render them a minority in each constituency, prevent them from consolidating their political power, and continue the same old game on a new playing field.”
Consider, for example, the large swathe of western Nepal that is home to the Tharus, one of the most exploited groups in Nepal. In a deliberate attempt to prevent Tharus from coalescing into a political force, the leaders have divided this territory and incorporated the sections into three different provinces. A similar fate has befallen the Magar heartland in mid-western Nepal. “Those leaders are very clever,” says Ganga Khasu Magar, chairperson of Nepal Magar Women Association. “They know Magars are the largest Janajati group and could become a formidable political force. So they have strategically divided them into three separate provinces, where they will become minorities.”
Large numbers of women and men who fought the decade-long Maoist war belonged to the Magar and Tharu communities. They devoted the best years of their lives to the Maoist cause and suffered the worst excesses of war. Tharus, for instance, were systematically targeted by the state and made up more than 85% of the victims of enforced disappearances. The Maoists had won the support of these groups partly by promising them the autonomous provinces of Tharuhat and Magarat. The Maoist decision to accept the division of their territories is seen as a major betrayal among these communities.
Shortchanged on representation
Federal demarcation is the primary but not the only reason Janajatis are opposed to the new charter. The 2007 interim constitution included many provisions that were marked improvements on the previous 1990 constitution. Since the drafters of the new statute could not entirely do away with these provisions, they have carefully diluted or twisted them to serve their ends.
One of the most progressive provisions in the 2007 constitution guaranteed proportional representation. Sixty percent of the constituent assembly was to be elected through PR. Under the new constitution, only 40% of the legislature will be elected through PR. Previously, the parties were required to fulfil quotas for marginalised groups such as Dalits, Janajatis, Madhesis and women while selecting PR candidates for the house. Now, quotas are required only during the preparation of electoral lists. Marginalised groups fear that top political leaders – nearly all of them high caste men – will disregard the principle of inclusion when they select PR candidates from the lists.
In the 2007 constitution, the term ‘marginalised’ referred to groups that have been disenfranchised as a result of systematic exclusion and hence entitled to special measures such as affirmative action. The new constitution expands this list to include Khas Arya, which means Bahuns and Chhetris who have historically benefited from their proximity to state power. The very concept of affirmative action is thus emptied of meaning. The quota system in this case becomes not a tool to increase representation of the marginalised, but to ensure bloc representation of each ethnic group.
The 2007 constitution had transformed Nepal from a Hindu state to a secular one. The new constitution retains the definition of Nepal as a secular state, but then goes on to define the word ‘secular’ as ‘religion and culture being practised since ancient times and religious and cultural freedom.’ This is an absurd definition, one that clearly implies that Hinduism will be a protected religion in Nepal. This will have significant implications for Janajatis and religious minorities. For example, the Nepali state has long punished members of indigenous communities who have traditionally eaten beef. There are many well-documented cases of Janajatis being harassed, beaten and jailed even for eating the meat of a dead cow. Since 2007, activists have argued that eating beef can no longer be criminalised since the state has been declared secular. But the bizarre new definition of secularism undermines their claim.
Further, the new constitution states outright that religious conversion will now be banned in Nepal. Over centuries, the high caste rulers in Kathmandu forcibly brought Janajati communities under the Hindu caste system, and then used this as a source of legitimacy to exploit them. Partly as a way of escaping poverty and caste discrimination, many Janajatis, especially those from the most impoverished groups like the Tamang, converted to Christianity. The ban on religious conversion will almost certainly embolden Hindu chauvinist groups, as Modi’s election has done in India, and lead to the persecution of converts to Christianity, many of whom belong to highly disadvantaged groups.
Janajati activists are equally critical of the manner in which the constitution was finalised. The top leaders of the major parties decided to ‘fast track’ the process after the April 25 earthquake. A narrow coterie of senior party leaders reached compromises on contentious issues behind closed doors. Most lawmakers were barely aware of these negotiations and were simply asked to vote for the constitution once it had been drafted. Many Janajati, Madhesi and women lawmakers did so even though they disagreed with many aspects of the constitution. They feared that senior leaders would try to damage their political careers if they did not. A public consultation process did take place, but it was perfunctory and ritualised, lasting a mere two days.
The constitution was passed without the explicit consent of large sections of the governed. The Madhesi protests indicate that dissatisfaction has already boiled over. Similar protests by other groups could occur in the days ahead. The ruling parties must reach out to opposition groups and make key amendments to the constitution if they want to prevent further polarisation and conflict.