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Identity and integration
JAN 23 -
At a recent international conference on constitution making in Nepal, I was reprimanded by a distinguished Janajati scholar for having become an “assimilationist”. And I was praised by a Brahmin, who described me in derogatory terms “as a well known crusader for minorities”, for now advocating integration after having seen the error of my ways. It worried me that neither noticed that there was nothing in my paper that I had not said numerous times during the two and a half years that I have lived in Kathmandu as a constitutional adviser. On the ethnic polarisation in the country, the nuances in my paper went unnoticed (just as they had been previously).
It was extremely sad to observe the passion with which the marginalised communities argued for the recognition of their identity, pointing to their cultural and historical distinctiveness, and the redress of past injustices, while the upper castes denounced with equal passion the evils of affirmative action and the dangers of federalism that most marginalised communities have demanded. The marginalised had not noticed, certainly did not acknowledge, how far the proposals of the CA committees had met their demands (except regarding autonomy as the relevant committee had not yet reported). Nor did the traditional “ruling class” show any appreciation of the emphasis on national unity in these proposals, and the repeated statements by the marginalised that secession was not on their agenda. In the absence of agreement on the fundamental political, social and economic problems facing Nepal, and lack of willingness to listen to alternative points of view, is Nepal really ready to make a constitution that must deal with complex issues of nation and state building?
At a conference which was intended to focus on the CA proposals, we heard a rerun of the polemics that had marked the period after the 2006 Jana Andolan. It was as if there had been no attempt at a compromise, an impression confirmed at informal discussions with participants. Why, if my impression is justified, have Nepalis squandered the great moment of national purpose that marginalised the monarchy and set the scene for a democratic Nepal, diverse but united? Why has the precious time since then been wasted? Even if one acknowledges the complexity of managing the multiple transitions in the country, the responsibility for the predicament must rest with the ruling group.
Why does Nepal find itself in this unenviable, indeed parlous, situation? I have no easy answer to this; but to some extent, it might lie in the disconnect between the two political processes that have characterised Nepal since 2006, indeed even before. On the one hand, the marginalised communities have mobilised their members on the basis of social justice, restoring pride and confidence in their cultures, and above all, inclusion in the state system through fundamental restructuring. On the other hand, the traditional ruling class and castes, reinforced in their hegemony by the Interim Constitution, have disputed endlessly on how to settle their own intra-class interests, while maintaining that hegemony. It was striking, despite what have become ritualistic formulations on equality and inclusion, how little attention they have paid to the specific claims of the marginalised.
The marginalised felt that the only way to make the ruling group listen to them was to burn a few houses, abduct and kill a few people, block off roads. It was only through these tactics that the IC was amended to incorporate their demands (almost all the amendments were the result of pressure from below). They were reluctantly granted, and ungraciously received. The fact is that these constitutional amendments obscured the determination of the ruling class to maintain its dominance. This is manifested in the electoral system for the IC, which made the representation of the marginalised through the list system a gift of the traditional parties. It gives a few members of these communities confidence that they have, in fact, been enfranchised. And now the CA has proposed that this system be entrenched in the new constitution.
The ruling class has refused to negotiate seriously with the marginalised. The CA was designed by them not to be a forum for this exercise. Not surprisingly, the CA members from these communities now realise that the only way they can make an impact is by forming ethnic or gender caucuses, requests to recognise which in the rules of procedure were refused. On the other hand, party discipline is maintained, and the procedure for resolving differences effectively gives the last word to the leaders of the traditional parties — both rules inconsistent with the spirit of a constituent assembly. And now the triumvirate comprising the new high level mechanism consists entirely of upper caste males — as the marginalised well recognise. The ruling class’ pretensions of democratic process have been shown to be hollow.
On their part, the leaders of the marginalised communities have not always served the cause of their members well. Instead of mobilising their members politically to put pressure on the decision makers, they relied on coercion and violence. Nor were they able to establish a united front of the dispossessed, in the cause of equality and social justice, pursuing their narrow sectarian interests at the expense of values they claim to espouse. On both counts, they lost moral ground — and political clout. Internal disagreements among the marginalised communities have weakened their position to negotiate with those who hold power. Relying on the specifics of international instruments that did not always fit the circumstances of Nepal, and turning them into non-negotiable terms, they have insufficiently elaborated general principles and specific institutions that would protect them well.
Neither side has given sufficient priority to constructing national unity and integration. No state can function fairly or effectively without a measure of shared values and aspirations, and the realisation of common destiny. Without the social solidarity that comes from these shared values, it is difficult to develop policies for the common good, and the will to help even those in desperate need of assistance and recognition. And it is hard to run a fair administration. Experience in many countries shows that genuine diversity can flourish only in these circumstances. My point about integration was misunderstood by my Janajati friend and critic. I deliberately mentioned political integration, a common public space, to distinguish it from the celebration of multiplicity of cultures. The identity of members of different communities is not singular, but a bundle of diverse experiences and interests.
The CA process was intended to build trust among Nepal’s diverse communities, and as a training and exercise in democratic participation and decision making. Lack of democratic practice, hegemonic politics and the strategic but counterproductive resort to violence have been more evident than attempts at consensus building. Few marginalised communities have expressed a desire for secession. But the well established sectors must convince them that their interests, and their right to full participation in the affairs of the nation, will be fully protected and promoted. Such an understanding is necessary before the details of the constitution, and the fine balance between national unity and diversity, and the quest for justice, can be negotiated — and secured through constitutional devices that have been already explored in Nepal.
(Ghai has been Professor of Law for many years [now retired]. He has advised on constitution making in many countries, and chaired a process in his country, Kenya. He worked in Nepal for over 2 years, setting up the Constitution Advisory Support Unit, UNDP)
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