Chasing a Dream
From a brutal civil war to the devastation of major earthquakes, Nepal faces the challenge of establishing a sustainable democracy through a consensus constitution.
Nepal, a small Himalayan State with a population of around 28 million, has still not recovered from the devastation caused by the earthquakes in April and May this year. The country is now in the grip of another crisis. There are serious reservations and concerns of many in Nepal, especially the weaker segments of society, that fundamental rights will be lost if the proposed Constitution is adopted.
After the abolition of a 240-yearold monarchy in 2008, the country was declared a "secular, federal democratic republic." There is now almost a consensus now to remove the word 'secular.' It is no secret that the ruling Nepali Congress (NC) and its coalition partner Unified Marxist-Leninist ( UML) have always been opposed to the declaration of Nepal as a secular State. They have wanted to see Nepal as a “Hindu State."
The NC leader and Constituent Assembly member Gagan Thapa recently told Al Jazeera that the word "secular" would be dropped, adding that the democratic republic under the new constitution is not to be identified with any religion. "People will be free to choose their religion and there will be no state interference in the matter of religion," he said. Strangely, he was defining what “secularism” really stands for in modern political philosophy. So, at the back of NC’s mind is actually a revival of Hinduism.
The Maoist-dominated Constituent Assembly elected in 2008 failed to conclude the constitution-writing process within the original two-year deadline due to differences on the issue of the federal structure. After four extensions in as many years, the Assembly was suspended and a new one was elected in November 2013 that brought the NC and the UML to power.
After the deadly earthquakes on April 25 and May 12, 2015 that killed more than 8,700 people and left millions without proper homes reducing them to living in tents, Nepal's major political parties decided to meet to conclude the charter-writing process and sign a 16-point deal on June 8, 2015. The urgency to do so was the result of mounting pressure on lawmakers and Prime Minister Sushil Koirala. The people and international donors were demanding to conclude the process and to focus on the relief and rebuilding efforts as billions of dollars in aid money had been promised.
According to critics, the political elite has taken undue advantage of the disaster to include regressive provisions in the constitution aimed at curbing the rights of women and marginalizing groups, including Dalits. Lawmakers are planning to promulgate the new constitution by August 2015.
The preliminary draft of the constitution was tabled on June 30, 2015. The government now intends to proceed with it despite the fact that the apex court has questioned its
legality. The Supreme Court termed the agreement unconstitutional and issued a stay order against it, citing an interim charter that calls for lawmakers to restructure the state comprehensively before approving a new constitution and dissolving the constituent assembly.
Some opposition members staged a protest complaining that the document presented did not reflect the interests of marginalized groups. The framing of a new constitution was a condition of the 2006 peace deal with Maoist rebels that ended a 10-year civil war in which more than 17,000 people lost their lives.
The draft seeks to divide the country into eight provinces but leaves their boundaries and names to be decided later. Although a 16-point deal has brought the NC, UML and the opposition Unified Communist Party of Nepal (Maoist) together, each conceding their rigid positions on several issues, it failed to address a number of contentious issues, including that of demarcation of future state boundaries — a point of contention between the NC-UML and Maoists. People from the southern plains called Madhes, also known as the Terai, had staged sporadic protests against the draft saying that the delay in marking federal boundaries “is a ploy to deny their long-standing demand: self-rule for people in the region.”
The draft charter has citizenship clauses that intend to reduce the children of the Nepalis married to foreign nationals who are second-class citizens with limited constitutional rights. This provision is bound to affect the population living along the open borders Nepal shares with India where it is common for people to marry into communities with shared cultures and values. It is a discriminatory citizenship provision for women and has attracted widespread criticism.
The draft also makes it easier for a Nepalese man to confer citizenship on his foreign spouse, while a Nepalese woman needs to be married for 15 years to her foreign husband before even being allowed to apply. The opponents apprehend that such provisions could also be used to prevent Nepalese wives or widows from inheriting property unless stipulated in the deceased's will.
Instead of specifying that daughters can inherit ancestral property, the draft vaguely says "all children." Activists are concerned this could be interpreted as sons and unmarried daughters only, the wordings as used in the country's civil code. Their objection is that it has removed the explicit reference of "sons and daughters."
Sapana Pradhan Malla, head of Forum for Women, Law and Development, says that the “draft dismisses the identity of a woman and reflects a patriarchal mindset that seeks to maintain discriminatory practices." She and other campaigners are also concerned that the laws as suggested would be misused to restrict a woman's right to abortion that was legalized in 2002 in this socially conservative country.
The charter bans sex-selective abortions, but activists say the provision is unnecessary since the practice is already illegal. They fear the charter will be used as a powerful tool to deny women abortions by falsely accusing them of trying to abort girls in a country where boys are preferred. "This issue should not be dealt with in the constitution," says Sonali Regmi, Asia regional manager for the Center for Reproductive Rights.
In the face of these concerns, a committee has been set up to draw up recommendations for changes to the draft, following a series of public consultations around the country. In recent weeks, violence has marred the consultations, especially in the southern plains, home to the historically marginalized Madhesi community, many of whose members marry into families living across the border in India.
In the meantime, lawmakers have brushed off the protests and concerns of campaigner, saying the draft is not intended to discriminate against anyone. "The constitution is not antiwomen," claims ruling coalition lawmaker Bhim Rawal, who helped draft the document. "Every country has provisions to protect its nationality and sovereignty,” he says.
According to progressive liberal elements, over the past eight years there has been a sustained campaign from the conservative right-wing Hindus to destroy the secular character of the State that is sine qua non for democracy. They allege that conservatives want to snatch away many rights provided in the present interim Constitution, mainly freedom of speech and the right to freedom of opinion and expression.
These developments in Nepal show that the post-war attempt at institutionalizing democracy is not moving amicably. Delay in framing the Constitution as an agreed document is a political failure of all parties. Failure of the last Constituent Assembly on this account and delay by the present one, define Nepal’s political trajectory and its prospects of constitutional rule as still being a distant dream. However, it needs to be kept in mind that Nepal, with its history of 240 years monarchial rule, is a multi-lingual and multi-cultural society. It has over 92 languages, which the Nepali people call their mother tongue. Similarly, different communities have their peculiar cultural heritage on which are based their norms and values. It would be a challenge to establish a sustainable democracy in such a country that has witnessed brutal armed civil war. For building an extensive social solidarity, the State will have to guarantee not only the recognition and equality of all languages and cultures, but protection of women and other marginalized segments of society as well. The lawmakers while adopting the constitution will have to tackle these issues.