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.

Southasia - - CONTENTS - By Huza­ima Bukhari and Dr. Ikra­mul Haq The writ­ers, lawyers and part­ners in Huza­ima & Ikram, are Ad­junct Fac­ulty at La­hore Univer­sity of Man­age­ment Sciences (LUMS).

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.

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