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The Maoist constitution
JUN 23 -
The Maoists released the constitution of Nepal drafted by them on May 29, 2010 the day after the Constituent Assembly’s tenure ran out without having fulfilled the task it had been mandated to do by the Nepali people and its term was extended by one year. Some Maoist leaders had earlier threatened that they would declare their own constitution if the CA failed in its task. Some people were actually afraid that if this were to happen, the Maoists would try to capture power not only in Kathmandu but also in the federal states which they had declared from the streets bypassing the elected CA which would have been helpful in this task.
This was not to be as the declaration of an indefinite strike on May 1 failed to generate popular support, and Pushpa Kamal Dahal’s call to Newars and Tamangs to rise and provide support for their movement was also a dismal failure. On the other hand, Baburam Bhattarai stated on the day the Maoist constitution was launched that it was his party’s draft of the constitution, and that it was meant for public debate (The Kathmandu Post, May 30, 2010). Many of the issues in the Maoist constitution had already been discussed in different committees of the CA, and some have been quoted from the committee reports.
The full text of the constitution was not available initially as this scribe searched in the bookstores. However, a weekly paper Janadesh published parts of it. A monthly publication Lal Rakshak meaning Red Guards, supposed to be published by the Young Communist League, published the full text.
The preamble talks about the decade-long “armed People’s War” and mentions the 12-Point Accord which played an important role in Jana Andolan II. It also talks about the policy of state restructuring on the basis of self-determination of backward and marginalised communities without compromising the geographical integrity of the country. It envisages giving special rights to women, Dalits and Muslims.
The Maoist constitution regards all mother tongues spoken in Nepal as “national languages” (Rashtra Bhasa), and the state should give equal protection to all such languages. The state would be required to correspond to all if a request were to be made in any national language. If an application in Raute or any minority language were to be made to the government, it would be required to reply in the same language. It would seem immaterial if the state has resources for such an enterprise. On the other hand, the Maoist constitution does not mention anything at all if there would be any “link language” or language of administration in the country. Perhaps the “national languages” spoken in ethnic states could fulfil such a role. What about the role of the Nepali language about which the Maoist constitution is silent? Perhaps no role needs to be given to it as it is the “language of the oppressors”.
It may be remembered that the Maoists did not name “autonomous states” in the mid- and far western hills on the basis of ethnicity as the overwhelming majority of the people there consist of Nepali-speaking “high castes”, presumably being the “oppressor castes”, although this region consists of the most backward part of the country.
The Maoist constitution wants a new flag for Nepal which would demonstrate its multi-ethnic, multi-lingual, multi-cultural and multi-religious character and regional diversity. The current flag of Nepal has been in existence for centuries and represents its unique identity. It would be a futile exercise to attempt to change it in the name of promoting diversity. It may be remembered that Lenin changed the Russian flag after the Bolshevik revolution. When communism failed in Russia in the 1990s after the disintegration of the Soviet Union, the new Russian flag is the same that existed before the revolution.
The Maoists have attempted to change the name of certain cities which showed a royal and feudal character. The town of Mahendranagar was named Bhim Nagar after Bhim Datta Pant who fought the Ranas. It may be remembered in this context that the name of St. Petersburg was changed to Leningrad after the Russian revolution. The old name St. Petersburg has been reinstated. Similarly, the name of the city of Volgograd was changed to Stalingrad after Comrade Joseph Stalin, the Soviet dictator. The name Volgograd was restored after the failure of communism in Russia.
The Maoist constitution guarantees several fundamental rights to the people including the right to equality and equal protection under the law. Regarding legislation restricting the fundamental right of equality, it states that laws could be made for empowerment and development of several groups such as women, Dalits, backward areas, Muslims, backward communities (Pichhada Barg), sexual minorities, senior citizens and those below the poverty line. It states that all children irrespective of their gender would have equal rights over ancestral property, and the parents would not be required to give such property during their lifetimes. It is necessary to guarantee individual property rights in the constitution. What about one’s right not to give one’s property during one’s lifetime? The normal practice would have been to enact laws in this regard. Such details are not made part of the fundamental rights of any country in the world.
The right against preventive detention and the right against untouchability have been made part of the fundamental rights, and those suffering are entitled to receive compensation. The right to property has been included in the list of fundamental rights, but it cannot not be exercised if the property is “unproductive” or has been acquired in the course of the “revolutionary land reform programme” in order to distribute land to the landless.
The Maoist constitution also includes fundamental rights on religious freedom and gives everyone the freedom to practice or change their religion, or to be an atheist. However, no one can convert another to a different religion. This is similar to restrictions in the previous constitution which restricted conversion by propagation of faith.
As in the case of many modern constitutions, the Maoist constitution also includes “directive principles”. These are directives for state policy and cannot be enforced by the courts. However, the Maoist constitution makes it enforceable by the courts, making it a unique feature not seen anywhere else.
The Maoist constitution also has provisions for holding referendums and recalling elected officials which can be considered to be its positive aspects. It also envisages reviewing all the treaties and conventions to which Nepal is a party within one year, and to dismiss those which are against Nepal’s national interests. It is doubtful if it would be possible to do this with all the treaties and conventions to which Nepal is a party.
The most controversial part of the Maoist constitution is creation of 12 federal states out of which 10 have been formed on the basis of ethnicity. Two of the proposed states are partly on the basis of language and partly on ethnicity. The states based on ethnicity are named after groups that don’t form a majority of the population in that state. What the Maoists have done is named a country with an 80 percent Hindu population as a secular state, and proposed states based on ethnicity where the ethnic groups don’t make up a majority of the population. Although the CA committee had proposed formation of 14 federal states, the Maoist constitution has proposed only 12. The two federal states not included in the draft proposal are Sunkoshi and Narayani where non-ethnic groups (mainly Brahmins and Chhetris) would have made an overwhelming majority of the population.
(The author is a former UNHCR representative in Pakistan)
Posted on: 2010-06-24 08:24
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