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Access of Marginalized People to Development Rights

Context: Constitution Making and Issue of Inclusive State - Suresh Acharya
Introduction:
The country has entered a new phase following the election to the Constituent Assembly. The responsibility of enshrining the people's aspirations expressed through the People's Movement-2 and of developing a mechanism for the meaningful participation of people of all sections and classes in the state apparatus has fallen on the shoulders of the Constituent Assembly approved by the people. The political parties have to take the leadership in this important campaign and all sectors of society have to lend their hand in this endeavour. Looking back, the political change from time to time could not include people of all ethnic groups, communities, sections and geographical regions. A system of political stratification was created in the veneer of Loktantra. A growing tendency of untouchability and discrimination was institutionalized among the political parties. As a result, the country was mired in conflict. The non-inclusive nature of the state structure became further non-inclusive and the gap between the rulers and the ruled became even deeper. The people of any country not only have the right to choose the system of rule of their liking, they also have the right to development as per the concept passed by the United Nations in 1986. Therefore, while talking about the state structure or its restructuring, we can reach to a conclusion only on the basis of the sovereignty of the people. The issue of right to development comes up even more intensely in a multi-cultural country like Nepal. The right to development is what the women and majority of people from the Madhesi, indigenous nationalities, Dalit, marginalized communities and the backward regions have tried to draw the attention of the state towards through the struggles, rebellion and movements that they have launched from the past until the present. But the state has, to this date, failed to hear their voice in a substantive way. The state is unsuccessful in putting in place such a state structure, which is capable of addressing the demands of the marginalized people even after the political change of April 24, 2006. It is in this backdrop the Constituent Assembly is expected to take the initiation in establishing the marginalized people's right to development.

Confusion in identification
The state and the experts do not have similar views regarding identification of the groups marginalized from the mainstream of the state. The confusion is mainly in the context of the state not starting any initiatives especially on the issue of mainstreaming the marginalized communities. Some sociologists (Dahal and Bhattachan, 2007), pointing out the common reasons for the marginalization of certain communities, have put forth some constitutional provisions such as reservation for the Dalits, Madhesis, indigenous nationalities and women.

Mainly the following four reasons have been identified as the common causes of marginalization: 1. Lack of inclusiveness, 2. Historical marginalization, 3. Poverty, and 4. Lack of fulfillment of national and international obligations. The National Federation of Indigenous Nationalities, Nepal (NEFIN) and the Integrated Institute of Development Studies (IIDS) used the following indicators while dividing the 59 indigenous nationalities communities in the country into five different groups. a. Literacy rate b. Household unit c. Land-holding d. Other economic property e. Education level (Diploma and above) f. Basis of population A separate benchmark was used in the internal plan brought by the Government of Nepal. The Reservation System Recommendation Committee constituted in 2004 under the convenorship of then Finance Minister Dr. Prakash Chandra Lohani had tried to incorporate economic, educational and health- related indicators. However, these efforts could not materialize. 1.1 Basis of poverty The economic cause is considered from different angles in identifying the marginalized groups. The Nepal Living Standard Survey has published data, which shows that 31 per cent of Nepalis live under the poverty line. As per this statistics, the Dalits form the last groups in the tally. Forty-seven per cent of the Dalits are living under the poverty line. Forty-four per cent of the hill indigenous nationalities groups living under the poverty line form the other group from the bottom followed by 41 per cent Muslims and 36 per cent Madhesi indigenous groups in that order. The Brahmins and Chhetris are on the top of the list of people living under the poverty line. Poverty is found in this category too but it is only 19 per cent. Likewise, 21 per cent of the Madhesi middle class is living under the poverty line. According to the Synopsis of the Survey published by the World Bank, poverty decreased by 11 per cent in 2004 compared to 1996. Earlier, the rate of poverty was put at 42 per cent. An investigation into how and where the poverty rate decreased, we can conclude that the poverty rate has significantly decreased among the people of the Brahmin and Chhetri groups. The highest decrease in poverty rate was in these groups. The poverty rate in these two groups decreased by 46 per cent followed by 21 per cent in the Dalit group, 10 per cent in the hill ethnic groups and 6 per cent in the Muslim community.

Table 1. The percentage of change in the poverty status among the ethnic groups: Ethnic groups Status of poverty Status of poverty in 1996 in 2004 Brahmin/Chhetri 34.1 18.4 Madhesi caste 29.8 21.3 groups Dalit 57.8 45.5 Newar 19.3 14 Hill indigenous 48.7 44 groups Madhesi 53.4 35.4 indigenous nationalities Muslim 43.7 41.3 Total for Nepal 41.8 30.8 Source: World Bank/Nepal Living Standard Survey, 2004 Percentage change 46 26 21 28 10 34 6 26

If the marginalized communities are identified on the basis of prevalence of poverty, it is seen that the Dalit community comes at the bottom then followed by Muslim community, the indigenous nationalities groups, the Madhesi indigenous groups and the Newar community in that order. 1.2 On the basis of the Human Development Index The 'Nepal Human Development Report', which is published by the United Nations Development Programme (UNDP), uses access of the indigenous nationalities to education and health sector as indicators for assessing the status of human development. Even when the health-related indicator is taken as the basis, the indicators for the Brahmin, Chhetri and Newar are positive and the indicators for the rest of the ethnic groups show a negative trend. UNDP states that the people of the Brahmin and Newar communities live longer by 11 to 12 years compared to the people of the Dalit and Muslim communities. The child mortality rate is also less in the Brahmin and Chhetri communities compared to the Dalit and Muslim communities. The child mortality rate for children under five years in the Brahmin and Newar communities is 69 and 75 per one thousand respectively while it is 171 for the Dalit community, 158 in the Muslim community and 141 per thousand in the national average. It is estimated that the child mortality rate in the Brahmin and Newar community is less as these groups high on the list of ranking have higher literacy rate. The different health indicators show that the Dalit women are less informed about HIV/AIDS compared to the women of the Newar, Brahmin, Chhetri and hill ethnic groups. There is the same skewed trend prevails among these communities when it comes to taking the help of trained health workers at the time of giving birth to children. 1.3 Indicators on participation in state governance

There was a stark lack of inclusive representation in all political bodies prior to the constitution of the Constituent Assembly. The election to the Constituent Assembly has been held after a prolonged debate. Still the Constituent Assembly is not completely proportional and inclusive as per the people's desire. When the percentage of the elected representatives is to be analyzed against the total number of candidates, 34.43 per cent of hill Brahmins and Chettris who comprised 19.14 per cent of the total candidates have been elected. The success of the candidates from these communities is nearly 200 per cent. Nevertheless, looking at the election data about the Dalits, only 6.60 percent of the total candidates were from this community and 580 Dalits or nearly 95 per cent of the Dalit candidates did not win in the election. The same situation was also seen among the hill indigenous nationalities and the Madhesi communities. A majority of the women candidates also did not win in the election. Had the proportional election system not been adopted the representation of the women, Dalit, indigenous nationalities and Madhesi groups would have been of the same status of the results of the parliamentary election before. Table 2 Ethnicity-wise proportion of candidature in the Constituent Assembly Election S.No Community Number . of candidates 1. Dalit 614 2. Hill 2,955 indigenous groups 3. Madhesi 1,203 4. Hill 1,784 Brahmins/ Chhetris 5. Total males 6,132 6 Total 3,195 females Total 9,327 Source: MIREST Nepal Percentage Number Percentage Proportion of elected of elected candidates candidates 6.60 34 5.91 1.18 31.69 145 25.22 120 42.57 19.14 65.77 34.23 100 198 198 385 190 575 34.43 34.43 66.96 33.04 100 1.6 1.9 1.16 1.17 1.16

Some of the ethnic groups could not have their representation in the Constituent Assembly. They include the Dhanuk, Meche, Baramu, Balung, Hayu, Darai and Kisan, among others. Even those ethnic groups, which had their representation, did not have the adequate representation in proportion to their population. The ethnic groups with such negligible representation in the Constituent Assembly are Tamang, Rai, Bhujel, Danuwar, Majhi, Kami, Damai, Sarki, Tharu, Musalman, Chamar, Dhimal, Rajbanshi, Mushahar etc. The civil service is another agency of the state governance system. There is a majority of people from the Brahmin, Newar and Chhetri communities in the civil service. Some ethnic groups do not have people from their community in the civil service even at the level of peon.

Table 3 Officer level employees in civil service and ethnicity-wise status S.No. Ethnic groups Special Gazetted Second Third class First class class class 1. Brahmin 63.16 56.17 53.98 59.68 2. Newar 18.42 19.65 17.96 12.91 3. Chhetri 15.79 15.11 13.10 13.13 4. Mrwadi, 0.00 7.56 11.13 9.74 Muslim, Madhesi 5. Magar 0.00 0.00 0.75 1.58 6. Dalit 0.00 0.76 0.51 1.05 7. Rai 0.00 0.25 0.84 0.49 8. Gurung 2.63 0.00 0.51 0.56 9. Limbu 0.00 0.00 0.23 0.20 10. Tamang 0.00 0.00 0.23 0.18 11. Thakali 0.00 0.50 0.33 0.11 12. Tharu 0.00 0.00 0.05 0.09 13. Sherpa 0.00 0.00 0.14 0.05 14. Rajbanshi 0.00 0.00 0.14 0.04 15. Sunuwar 0.00 0.00 0.05 0.04 16. Kumal 0.00 0.00 0.00 0.04 17. Kushbadiya 0.00 0.00 0.00 0.02 18. Jirel 0.00 0.00 0.00 0.02 19. Dolpo 0.00 0.00 0.00 0.02 20. Thami 0.00 0.00 0.00 0.02 21. Dura 0.00 0.00 0.00 0.02 22. Bhote 0.00 0.00 0.05 0.00 23. Majhi 0.00 0.00 0.00 0.02 24. Yakhkha 0.00 0.00 0.00 0.02 Total Percentage 100 100 100 100 Number 38 397 2,138 5,523 Source: Nijamati Kitabkhana (Civil Service Records Office)2063 BS. Total 58.02 14.60 13.23 9.96 1.27 0.89 0.57 0.53 0.20 0.19 0.19 0.07 0.07 0.06 0.04 0.02 0.01 0.01 0.01 0.01 0.01 0.01 0.01 0.01 100 8,096

1.4 Determination of identification Based on the above data we can conclude that there is no need for other supportive data for identifying the marginalized communities. A large section of the communities in the country are feeling that they have been neglected from the state institutions due to the lack of formulation of political, social, economic and cultural plans as per the country's social composition and the lack of eagerness and enthusiasm to implement the available policies. Change cannot always remain constant over an age. Change becomes inevitable over a certain period and there is the need for change. The political changes of 1990 and 2006/07 should be seen in this context. The land reform policy effected in 2021BS and the Muluki Ain (Civil Code) of 2010 BS were epochal and revolutionary in their own rights in the contemporary period is evident from the then social

background. However, in the present context, they are no more than general reform measures. The main challenge at present is institutionalization of an inclusive, democratic system by developing a political mechanism that will strengthen the national unity. Therefore, it is hoped that the ethnic, racial and gender-based discriminations could be rooted out in an effort to making the inclusive culture as the national culture on the issue of mainstreaming the marginalized communities, which are deprived of their linguistic and cultural rights as well. 2. Weak efforts The practice of giving recognition to the cultural rights of people is increasing in the world today no matter the type of democracy that is put in place. In Nepal too, steps have been taken towards that direction following the political transformation of 2006-07. The Interim Constitution of Nepal, 2007 promulgated on January 15, 2007 following a lot of public pressure, has constitutionally recognized the principle of inclusive democracy. Article 4 of the Preliminary Section of the Interim Constitution of Nepal, 2007 states: 'The State of Nepal is an independent, indivisible, sovereign, secular, inclusive and fully democratic state.' This provision in the Constitution of the country pronounces that Nepal is an inclusive state. Some positive provisions were made in the Constituent Assembly Members Election Act, 2007 issued after the promulgation of the Interim Constitution of Nepal with the objective of making the Constituent Assembly an inclusive body. Schedule 1 of this Act has fixed a quota system in the closed-list of candidates for under the proportional election for the distribution of seats to different communities in the Constituent Assembly. According to this provision, the closedlist of candidates should include 31 per cent Madhesi, 13 per cent Dalit, 37.8 per cent oppressed, indigenous nationalities, four per cent from the backward remote area- (Achham, Kalikot and Humla etc.) and 31 per cent from groups not included in the schedule. The result of this system is evident in the composition of the Constituent Assembly. The Civil Service Act, which was enacted after the promulgation of the Interim Constitution, also followed the standard schedule adopted for the Constituent Assembly Election. It is seen reforms to the desired extent have not been made in the type of appointment in the civil service of 2007/08 even though results for 50 per cent of the total candidates in the civil service open competition exams have been made public. Table 4 Ethnic and religious composition of employees recommended for appointment by the Public Service Commission, 2008 S. No. Ethnic group 1. Brahmin 2. Chhetri 3. Newar Number 475 114 79 Percentage Religion 62.8 11.1 10.4 Number Percentage 97.1 2.1 -

Hindu 734 Buddhists 16 Jain -

4. 5. 6. 7. 8. 9. 10. 11. 12.

Kirant/Rai 10 1.3 Sherpa 0.0 0 Gurung 3 0.4 Magar 4 0.5 Tamang 2 0.3 Tharu 7 0.9 Musalman 1 0.1 Dalit 1 0.1 Others 60 7.9 Total 756 100 Source: Public Service Commission, 2008

Islam 3 Christians Others 3

0.4 0.4

Total

756

100

Following the election to the Constituent Assembly, everyone's attention is now focused on the topic of ethnic inclusion in the Nepal Army. There is a majority of Chhetri and Brahmins in the selection of its officer cadets by the Nepal Army even after the promulgation of the Constitution with provisions for inclusiveness. Table 5 Results of the Cadet Selection by Nepal Army-2008 S. No. 1. 2. 3. Ethnic group No. of candidates passing written test Number Percentage Final results Number Chhetri 180 76 Brahmin 131 47 Indigenous 47 16 nationalities 4. Dalit 5 3 5. Madhesi 2 1 Total 365 100 143 100 Source: Based on notice published by Nepal Army on April15, 2008 In fact, the two and a half years since the reinstatement of the democracy is a very short period for any meaningful evaluation. Since the attention of the entire country was focused on the Constituent Assembly Election during this period, we have not been able to move forward as per the spirit of the Interim Constitution. But there can be no two opinions that the initiatives towards establishment of the 'inclusive culture' should be started from the present point in time. Some five dozen commissions, committees and sub-committees have been constituted since the promulgation of the Interim Constitution. Still many more appointments, transfers and several administrative works were carried out in this period. However, there is faint reflection of the principle of inclusiveness in all these. Overall study shows decisions at the governmental and non-governmental sectors are determined by politics. In Nepal's context, the political activities are in the hands of the political parties. In fact, if the marginalized communities are to be made the partners in the development of the country, the political parties should keep their doors wide open for these communities. percentage

3. Lessons learnt Political rights alone would not be enough for the marginalized communities. They should be provided special rights along with the guarantee of their proportional access to the means and resources in order to ameliorate the pain they had to endure left behind by the history of neglect and oppression. However, of late the question of representation alone and its achievement has emerged as the moot question. Nepal's politics is gradually heading towards the quota system. Even though the quota system is not bad in itself, it creates obstruction in the empowerment of the community. It cannot be said that the marginalized community will benefit only through its representation in the state apparatus. In the context of Nepal itself, the composition of the Constituent Assembly is more inclusive and encompassing all the ethnic groups compared to the Legislatures of other countries. However, the principle of inclusion has not been translated in practice in the initial stages. For instance, during the first week of July the parties representing the Madhes obstructed the parliamentary meeting of the Constituent Assembly by picketing the Speaker's rostrum pressing for fulfillment of their demand of an 'autonomous one Madhes state', The Madhesi Constituent Assembly members elected from the rest of the political parties remained mute spectators on this issue. The CA members of Madhesi origin elected from the CPN (Maoist), Nepali Congress and the CPN (UML), among others, could not play an effective role for the welfare of their community, whereas their number in the Assembly exceeds that of the Madhesi Janadhikar Forum (50), Terai-Madhes Loktantrik Party (20) and Sadbhavana Party (9). Had the CA members affiliated to the parties including CPN (Maoist), Nepali Congress and the CPN (UML) whose number is more than 100 raised a common voice for their cause, they would have achieved much more. This situation is likely to be voiced in the case of the Dalit, indigenous nationalities and women issues as well. It is worth recalling here that UNDP advisor S Ghai had pointed out this possibility two years back. According to Ghai, the CA members cannot play the role for their community as the Interim Constitution has made provision under which the political parties can expel the members if they flout the party whip in the Constituent Assembly. 3.1 Misuse of the consensual system The Interim Constitution of Nepal has brought the consensual system in practice for the management of the interim period. Although many Articles in this Constitution are not in consonance with the principles of constitutionalism, such an arrangement was necessary to manage the post-conflict situation. But the limited consensual system could not be implemented. The consensual system deemed the best political system for a multi-cultural country like Nepal has been transformed into 'kitchen consensus' of the big three political parties alone. The experience over the last two and a half years has taught us to create institutional structures in order to institutionalize the consensual system. Power sharing is generally a sentimental aspect in the consensual system. It is related to the collaboration in decision-making. Likewise, it is related to the political customs and tradition. Overall, this system negates the majoritarian situation and decisions. It has a liberal attitude in which even the minority is given

the highest hearing on many issues. It looks for dialogue and negotiations with the partners not only on the issue of power sharing but almost on all topics. Nevertheless, in our case, a culture of exclusion is being promoted in which dialogue is impossible with the excluded groups or sides that have been denied the decision-making role. The established political institutions have been neglected. The relevancy of these institutions has not been debated at the official level and sensitive and far-reaching decisions related to the state have been made through the 'kitchen consensus'. This is totally against the constitutional spirit of consensus. 3.2 Lessons learnt The present system, which has been given the name 'democratic state system', has certainly opened the floodgates of people's aspirations. However, this system cannot remain in the status quo. Although the marginalized communities are in a position of arithmetic majority, their access to the decision-making process is limited. Therefore, these communities are termed as the excluded group, marginalized group or the left-out group. Institutional adjustments and policy measures are necessary in the new Constitution for these groups on a priority basis. The major political parties have made the following commitments for the marginalized communities through the Constituent Assembly Election. Table 6 The political parties' commitments for the mainstreaming of the marginalized communities Political party Commitments CPN (Maoist) • Autonomy and the right to ethnic and regional selfdetermination • Right to protect one's language, culture and tradition • Proportional participation • Additional privileges as recompense measure • Proportional participation in the national army Nepali Congress • Meaningful participation in state governance system • Guarantee of 33 per cent participation of women • Social justice • Positive discrimination on the basis of consensus CPN(UML) • Inclusion, positive discrimination and reservation • Guarantee of 33 per cent reservation to women • Right of self-determination to the indigenous nationalities • Equitable distribution of the means and resources and guarantee of right to equitable share in the resources. • Special facilities to the backward regions • Right to education, health and employment for the disabled Madhesi • Reservation to Dalits on the basis of population Janaadhikar Forum • Reservation to the Madhesis in the centre and federal states

• • • Source: MIREST Nepal

Special opportunities to women Constitutional guarantee of the rights of minorities Guarantee of labour right and social security and right to justice

3.3 People's initiatives People's initiative plays a crucial role and has a special meaning in the process of formulating a new Constitution for building an inclusive state structure. The people have sent their representatives to the Constituent Assembly but the process does not end here. Public initiative helps the elected body to take substantive decisions. However, it is the responsibility of the CA members to codify and theorize the spirit and decisions of the people's initiatives. Such initiatives have been collected through direct public debate. The following are the representative voices of people for drawing up a new Constitution collected through the public initiative. Table 7 Constitution formulation process • • • • • Should be done on the basis of participatory direct dialogue; The choice of topics should be based on objective necessity rather than ideological and racial prejudice; The constitution formulation process should not be made complicated and too much technical; A feel of direct democracy should be experienced in some issues; The people have the right to know the decisions taken by the Constituent Assembly and to determine its worth

State restructuring The outline of the federal demarcation should be determined as suggested by the people; • Autonomy and inclusiveness should be practiced at the grassroots level; • The practice of proportional representation should be further intensified at the federal and local levels; • The participation of the marginalized communities should be constitutionally guaranteed; • It is necessary that the access to and the distribution of the means and resources is done on an equitable basis; • Expansion of access of deprived communities to media • Democratization of the political parties and institutions Political system • The tools for institutionalized development of the consensual system should be developed; •

• •

A multi-party competitive political structure based on pluralism should be created; Fundamental rights should be guaranteed for securing the right to participation, ownership and work.

Transformation • • • • An environment of conciliation and trust is necessary for transforming the different dimensions of conflict into peace; Dignified rehabilitation of the conflict victims and parties in society Constitutional and legal prohibition of structural discrimination; Reinstatement of the rule of law by replacing the situation of impunity.

Common local problems • • • • Putting to an end the social rejection, geographical exclusion and dominance of a particular class on the economic sector; Discrimination in opportunities should be ended; The principle of right to development should be institutionalized; Smooth operation of agriculture, market, businesses and economic activities.

4. Conclusion Recognition of all communities in the entire state structure and governance system along with their respective identity, their representation and meaningful participation is the main agenda of the new Constitution. It is in this context that the marginalized people have also expressed their willingness to participate in the process for formulating a new Constitution. This is their intense desire. It is necessary that the Constituent Assembly bring special programmes to address this desire of the people and to set its own agenda. The discussion could be direct or through the media also. What is necessary is eagerness and zeal. -------(Acharya is a freelance journalist from Nepal)