By Tek Tamrakar
Constitution
Constitution illustrates the hopes and aspirations of people at large. It is not only a political chattel that designates political power to the three wings of governance but also a document that reflects the socio-economic situation and political economy of the country. It reflects the culture, diversity and whole structure. The constitution is a fundamental manifesto of land. All voices of the communities should be included under the constitution. However mere inclusion of their voices and expectations without their participation in constitution drafting process is not adequate. This process therefore should be participatory and inclusive.
The constitutionalism of 21st century advocates for the direct people’s participation in constitution’s creation. The state should ensure pluralism in the structure of constitution drafting mechanisms and include the people’s voices and hopes in the constitution through interactions, seminars and other possible ways. There should be a feeling among people that state is doing its level best to ensure their representation and participation. The state should take into consideration that “no constitution is written behind the closed doors”. People’s voice should never be neglected in the constitution drafting process. Very briefly, it is a universal truth adopted by all democratic countries that constitution is not made by the technicians but by the people. The technicians can just frame the people’s voices in a technical manner.
Until and unless highlighting the voices of people in an inclusive manner, constitution does not have legitimacy. Legitimacy is the outcome of people’s participation in its drafting process and due representation of the voices of all communities especially those who have been unrepresented and excluded for a long time from state machineries. In the context of Nepal, Dalits, Janjatis, Madhesis and women are mostly disadvantaged groups that have to be given due respect in the restructuring process of the state.
Social Inclusion
Depending on the context and time, social inclusion has been used as a “buzz word” by the state authorities, political parties and many organisations. While talking about inclusion, we should also define exclusion. Exclusion is a barrier in mainstreaming. Social exclusion refers to a process through which individuals or groups are wholly or partially deprived of full participation in the society in which they live; they are closed out from participation in the society, as a consequence of low income and constricted access to employment, social benefits and services, and from various aspects of cultural and community life. Going further, there are few attempts to seek deeper understanding of social inclusion. The trend to interpret social inclusion as a means for ensuring mere material participation of unrepresented communities is rampant. This indeed narrows down the wide and extensive realm of social inclusion.
In fact social inclusion is a multi-dimensional concept, involving economic, social, political, and cultural aspects of disadvantage and deprivation. Therefore, social inclusion can be defined as a process of promoting equitable access to both economic and social benefits of development without any discrimination of caste, descent, gender, religion, ethnicity, nationality, sexual orientation, opinion or other characteristics. It is often defined as socio-economic and political empowerment of the particular groups who have been victimised by the stark discrimination, segregation and exclusion. For ensuring social inclusion we should really enhance the access of all people to economic and social opportunities, assets, resources; voice; knowledge; skills; and last but not least- information.
Interim Constitution and Social Inclusion
After the glorious people’s movement in April 2006, agenda of social inclusion has been strongly raised by all segments of the society. Indeed the goal of the people’s movement is to ensure “complete or substantial democracy” in the country. The complete democracy does mean the whole edifice of socio-economic and political democracy. In real sense, socio-economic democracy could be obtained only after achieving complete respect for social inclusion. Social inclusion as mentioned above means a feeling of ownership through enhancing the access to all organs of the state machinery and state resources.
In the discourse about having complete democracy, the political parties have agreed to go for the new constitution through Constituent Assembly. It is the first time in the history of Nepali constitutionalism that government, to some extent, encouraged participation of people through some groups and urged people, civil society for the submission of their agendas while formulating the Nepal Interim Constitution (IC), 2007. Janjaties, women, Madhesis, and Dalits were also represented in this process, which is really a significant progress. Even though the representation of these groups in the IC building process was not high and genuine, however it was the first positive initiative of the state to encourage the participation of these groups in this noble process.
Even very low, as it was, representation of these groups has directly contributed to include some positive regulations. Major issues included in IC respecting social inclusion are:
• All castes, creeds, religions and ethnicities have been widely recognised while defining the nation.
• All the languages spoken as the mother tongue in Nepal have been recognised as the national languages of Nepal.
• Discrimination based on gender, has been partially dealt with through the provision ensuring the right to citizenship. It says that any person whose father or mother is a citizen of Nepal shall be eligible for acquiring citizenship of Nepal.
• Some socio- economic rights have been recognized. Prohibiting the untouchability; right to employment and social security; social justice; women’s rights and labour rights are acknowledged the fundamental rights. The constitution has paved the way for the constitutional guarantee for the adherence to these rights, which are closely related to social inclusion.
• An inclusive, democratic and progressive restructuring of the state will be carried out eliminating its existing form of centralised and unitary structure in order to address the problems related to women; Dalits; indigenous people; Madhesis; oppressed and minority communities; and other disadvantaged groups, by abolishing class, caste, language, sex, culture, religion and regional discriminations. A provision has been included as a directive principle under this constitution to form a separate commission.
• The constitution has mentioned the state’s obligation to protect and provide the welfare of single women, orphans, children, helpless, aged, disable and incapacitated persons.
• There is a provision that has clearly mentioned the promotion of the interests of marginalised communities, the peasants and labourers living below poverty line, including economically and socially backward indigenous tribes, Madhesis, Dalits by making reservation for certain period of time with regard to education, health, housing, food sovereignty and employment.
• The representation of women has been specified. IC has stated that with regard to women at least one third of the total representation in the constituent assembly and other state institutions should be reserved for them.
• Regarding other excluded groups, IC has stated that in the executive committees at all levels; there should be the provision for including members from neglected and suppressed groups including the women and Dalits.
• Regarding the registration of the political parties, it has been acknowledged that the Election Commission shall not register any political party if any Nepali citizen is discriminated in becoming or as a member of this party on the basis of religion, caste, tribe, language or sex; or if the name, objectives, insignia or flag of a political party are of a nature that would disturb the religious or communal harmony or incite to the division of the country; or if a party’s statute states the goal to achieve or promote party-less or single party system of governance.
• While appointing the members of the National Human Rights Commission, IC has assured the representation of woman.
• In the appointment of some of the constitutional bodies, parliamentary hearing has been required which can play a significant role to promote the people’s participation in the state machinery.
Weak Points
The present Interim Constitution is not free from some weaknesses regarding the reassurance of social inclusion.
• It is a strong recommendation of the civil society to apply proportional voting system in the election for constituent assembly. But the IC has not mentioned to apply proportional election system only. Rather it has mentioned to apply both “First-Past-the-Post” and proportional. As per the IC, among four hundred twenty five members, only two hundred and five members shall be elected from among the candidates elected on the basis of FPTP from each of the election. And only 204 have been mentioned to be elected by the proportional electoral system. Regarding the proportional electoral system, IC is not clear about the modality such as close or open.
• Though government has promised to review the constituencies after the demonstrations of Madhesis, the IC authorises 205 electoral constituencies, the same which were approved couple of years ago. Very recently government has brought the proposals for the amendment of the constitution regarding the issue of constituencies.
• The IC has mentioned that the principle of inclusiveness shall be taken into consideration while selecting the candidates by the political parties and while making the list of the candidates. There is a clear provision that says that the political parties have to ensure proportional representation of women, Dalits, oppressed tribes/indigenous people, backward communities, Madhesis and other groups, in accordance with the law. But there is no clarity about the nature and kind of proportionality. Mere stating ‘proportional’ is not adequate to ensure their real representation.
• There is also a controversy about the age of the eligible candidates for the members of the constituent assembly. Determining the minimum age as 25 years excludes the youth who had significant contribution in the people’s movement 2006.
• Provisions regarding affirmative actions and reservation for Dalits and other marginalised communities are not clear. IC has conservatively adopted same provisions from the 1990 Constitution of the Kingdom of Nepal.
• For the purpose of the registration of a party for the election, an application with a signature of at least ten thousand voting supporters has been submitted as a requirement, which is, for some, undemocratic and exclusive.
• IC has mentioned to ensure women’s participation in the structure of the National Human Rights Commission. But does not speak anything about the representation of dalit, janjaties and Madheis. An abstract word “pluralism” has been used regarding the participations of these groups.
New Constitution and Social Inclusion
New constitution realized through the constituent assembly is a highly sought political process of the state restructuring. The Comprehensive Peace Accord (CPA) and the IC have clearly stated to hold the election of CA to define the future of state. The constituent assembly, no doubts, is a representative and participative way to draft and approve the constitution. However it is not the only mechanism to address the expectations of people. To make it success, the whole constitution writing process should be participatory and inclusive. In each activity of this assembly, all groups, communities and classes should be brought in. However, the IC is not clear and specific about the proportional representation of marginalised communities in this assembly; lessening the hopes and aspirations of marginalised communities. As mentioned above, the inclusive participation figures in the constitution but the question how is it going to be achieved is totally ignored and that is not a positive sign for achieving the “genuine inclusion”. There are two ways to ensure the representation of socially excluded groups:
• Through specific constitutional provisions regarding proportional as well as equitable representation based on their population and marginalisation;
• Re-delimitation of the electoral constituent ices; Now government has proposed to form the election Constituencies’ Delimitation Commission to redefine the numbers of constituencies. Open proportional electoral system is more useful to have people’s access in the selection of the candidates.
Both clauses are lacking from the newly adopted IC. The document neither introduces proportional voting system nor is specific regarding provisions for the excluded groups’ proportional and equitable representation. Both, first- past- the- post and proportional, systems have been adopted leading to some confusion.
The members of CA should not ignore the participation of the people in the constitution drafting process. To ensure the conscious participation of the people, CA should form a “Constitution Drafting Commission” to collect the voices of the people. With the assistance of this commission, the assembly should realize the social inclusion in the following steps: formulation of questionnaires; discussion on the results of the survey; collection of the people’s views and wide discussion; refinement and surveying people’s views again; drafting, discussion, consultations with experts and finally promulgation.
With regard to the provisions under new constitution tackling social inclusion, there should be some provisions as bellow:
• Restructuring the political as well as state mechanisms, the new constitution should focus truly on the pluralism and consensus. Accessibility of people and at large the tenets of good governance should be upheld.
• The new constitution should recognise reservation as one of the constitutional rights. Only limited reservation in public sector is not enough. New constitution should have a clear provision of equitable representation of excluded groups in all state authorities i.e. government, judiciary and legislature. There should be a strong reservation policy in private sector as well. The argument for the reservation in private sector is that the sector follows discriminatory hiring practices and there is a need to remove inefficiency caused by market discrimination. The private sector receives support from the government and has social obligations; there is a thin line between private and public spheres, so the corporate sector has social responsibility towards the marginalized groups and should also address the issues emerging due to the unequal social structure. Therefore the reservation should be expanded from public to private sector.
• Elimination of untouchability is the primary obligation of the state. Untouchability is neither scientific nor moral nor legal. This is a social stigma and manifestation of the feudal mind. Perpetuation of such inhumane and degrading treatment can never be favorable for democracy, rule of law, equality principal and human rights perspective. Therefore, mere stating of equal rights in the law without making untouchability practices punishable is not enough. In such situation, the new constitution should both adopt positive discrimination provisions as mentioned above and adopt anti-discriminatory provisions. There should be clearly and strongly affirmed constitutional protection, prohibiting all forms of untouchability and caste based discrimination in all spheres.
There are some basic recommendations submitted as the “General Recommendations XXIX” by the Committee of International Convention on the Elimination of All Kinds of Racial Discrimination, 1965 called CERD to the government of Nepal. The state should comply with these recommendations.
The Indivisibility of Human Rights
Considering the close relationship that exists between economic, social and cultural rights, and civil and political rights, the constitution should recognise these as fundamental rights. In fact the different categories of rights constitute an indivisible whole, based on the recognition of the dignity of the human person. The new constitution should acknowledge and respond to the context of our socio-economic reality. Mere focusing on political rights and undermining socio-economic rights cannot strengthen democracy in the country. It is a lesson that we have learned from our 12 years democratic journey in Nepal. Therefore, bearing the social reality in mind, the socio-economic rights should be acknowledged as the fundamental rights like in the South African Constitution.
It is true that social inclusion is an outcome of the protection of the socio-economic rights. Social inclusion is often defined as socio-economic and political empowerment of the particular groups who have been victimised by the stark discrimination, segregation and exclusion. To enhance the social inclusion, new constitution should clearly focus on equitable access of marginalised groups to economic and social opportunities, assets, resources; voice; knowledge; skills; and information.
The new constitution should guarantee first of all: land rights; right to adequate housing; right to health care; right to food and water; right to social security; educational rights; and the socioeconomic rights of detained persons, including sentenced prisoners.
Access to justice is an essential for any just system. Access should not depend on wealth, status, skin, class and caste or gender (Unequal citizens in Nepal, World Bank, 2005 at 31). There should not be any discrimination in the administration of justice. Right to have equal justice is a human right guaranteed by the International Covenant on the Civil and Political Rights (ICCPR), 1966 of which Nepal is a state party.
There should be provisions regarding equal access to the justice system for all members of descent-based communities, including the provision of legal aid, facilitation of group claims, and encouragement of non-governmental organisations to defend community rights, and to ensure the prosecution of persons who commit crimes against members of the communities and the provision of adequate compensation for the victims of such crimes. Meanwhile, provision should be there encouraging the recruitment of members of the excluded groups into the police and other law enforcement agencies and to organise training programmes for public officials and law-enforcement agencies with a view to prevent injustices based on prejudice against descent-based communities. Therefore, to ensure the right to justice Dalits should have opportunity to be represented in the justice system and there should be special provisions ensuring easy way for them to achieve that.
The new constitution should introduce proportional electoral system. Proportional electoral system as mentioned above is an inclusive electoral process. Mainly the minorities and unrepresented groups can have their proportional representation through this electoral scheme.
Mere introduction of rights as mentioned above is not enough to wipe out the deeply rooted caste discrimination. There should be a strong independent body playing a role of a “watchdog” to protect and promote the rights of Dalits and other marginalised communities. The new constitution should speak for a strong monitoring mechanisms assuring special power to initiate action against those who violate the rights of Dalits guaranteed by the national and international human rights instruments.
(Tek Tamrakar is a Human Rights Advocate )
