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Activities

An Interaction on the Concerns of Excluded Peoples in new Constitution

 Report

An interaction program on the concerns of excluded communities in new constitutions

December, 28, 2014, Himalayan Hotel, Kupondol, Lalitpur

Organized by NCARD in association with SPCBN/UNDP

Summary

National Coalition Against Racial Discrimination (NCARD)—an organization working on the issues of excluded communities in Nepal, on Sunday organized an interaction program on the concerns of excluded communities in new Constitution. The discussion rolled around wide range of issues concerning to marginalized communities—Indigenous Peoples (IPs), Dalits, Madhesis, Muslims and women. The focus of the interaction program was on building the solidarity among such a diverse community while ensuring their rights in the new constitution. The paper entitled, 'Developing solidarity on issues of Marginalized communities with regards to constitution making process in Nepal' presented by Shyam Shrestha.

The interaction aimed at,

-          Building solidarity to include the issues and concerns of excluded communities in the new constitution.

-          Identifying the best means and methods with the 'intellectuals' of the community to address their most pressing issues.

-          Review the achievements so far attained especially in addressing their issues specially in the first CA drafts and in the process so far over in the CA-II. 

Presenting paper, Shyam Shrestha, made the following points:-

The group who are against the marginalized community make the majority in the CA—namely Bahun, Chhetri, Thakuri sanyasi, --some higher caste within Mahdeshi and Janajati. The reason is, the issues, concerns and rights of the marginalized community are likely to be bypassed in the new constitution. The logic behind is that the presence of their representatives in the CA is less, moreover they are not united to raise their issues collectively.

Therefore the reality is that the country is still ruled by the minority group to majority of population who represent this group—Madhesi, Muslim, IPs and Women. The rough statistics puts that they make up about 85 percent of the total population of the country.

Their Concerns mainly can be categorized in to four points:-

1)      Access and representation of them in ruling and any level of decision making either in government, military, bureaucracy and so forth. These issues have long been raised but still waiting to get addressed, there is less hope to get addressed even in the new constitution.  

2)      Equal rights, status and identity. Being the citizen, they have equal rights and status, but they are hardly been able to exercise such enjoyments.

3)      Access to national resources, development and property, their access only to the ruling or decision making level doesn't make sense, if they don't have such access to resources and national property.

4)      Overall development of the marginalized community

These four-concerns should be addressed in the new constitution.

He further says, the first CA have recognized and embraced a lot of concerns of this group including that of principle of proportionate representation to the decision making level, which brought a lot of positive results in the representation of this group in the CA, so as has such important issues in the area of language, employment, representation of Dalits with adequate compensation etc which are welcoming notes, but the though CA-II is supposed to adopt as it is, but the CA-II is likely to miss them out due to differences among the major political parties which are against this group's rights.

Besides these, he says, the representation of class, such as farmer, labor, who make up a large chunk also needs to be given same importance. The challenges there is also that of representation of the community who has population less than 1 percent such as of Raute, Chepang, Hayu etc.

Recently, the NC and CPN-UML stating that they have agreed on the First-past-the post (FPTP), which is likely to be agreed upon, if that is so, then the representation of women, dalits, muslim and IPs are going to be zero, therefore there is need to raise the voice strongly to pressurize to put the proportionate representation. So as they have been making the points that the marginalized groups will have reservation orally but not in written form. Therefore, it is likely that the marginalized communities are going to be marginalized again from the historic constitution writing process.

In regards to rights of women, it has almost been agreed that they will have equal family property, ancestral property as men does get. This issues has been very clear and likely to guarantee in the final document, but see the issue of language, the CA-I, says that the issue of language will be managed by making the language commission, in the central, though about 11 language make up the majority, but those are not likely to get status. The language use in the education and administration has been entrusted to the power of provinces, which is less hope that the mother tongue of indigenous communities are going to be used in the administration and other sector.

Granting of citizen which is the main concerns of Madhesi has been the matter of debate, the major political parities putting the agenda making difficulty in passing of citizenship from father or mother.

The political parties are likely to agree in 8-federal states to the maximum. The UCPN-Maoist which was demanding as per the provision made by State restricting commission formed in the first CA has now been nodding to agree on the 6-federal states. If it is then marginalized communities will not have justice. 

Ethnic identity has been negatively portrayed and issues have been covering as if indigenous peoples are disintegrating the nation with single identity, which actually is not true. They (IPs) in fact are demanding the multi-identity based federalism, in reality,

The name and boundary again have been the matter of debate besides the identity, rights etc. The federalism is based on the principle of self-rule and shared-ruled on the cluster/majority living community, but the principles have been negatively portrayed.

Again the power, decision making process are going to be centered, the provinces and autonomous regions are going to be powerless. Therefore there is need to make a strong voice together with these issues, the issues such as right to food, employment, health, education etc. for this, within CA, there is need to have alliance of  cluster (including of IPs, Madhesi, Dalit, Muslim and women) and the same outside of CA. Until and unless, we take to the street, the rights of marginalized communities may not be addressed in the new statute.

If voice strongly we will have more rights and voice less get less rights. Thus there is no other option than the protest.

Oral testimony of the participants

Rajani opening the program says:-

After having a series of discussions and workshop among the excluded groups (IPs, Muslim, women and Dalit and madhesis), we have come to the conclusion that there is lack of discussion among the intellectuals of them. This program is towards this end.

Ganga Mahara (welcoming to the participants) said:-

CA-I to some extent had included the identity and right of this group in the drafts, but in the second many have been omitted, therefore, we all need to be aware to seek for our right.

Balkrishna Mabuhang facilitating the session said:-

Today, the focus of the interaction should be how the solidarity is to be built among the excluded communities. We have discussed about the rights and concerns for long time and better if we focus on means and methods to get addressed.

Classical Theory argues that we have come from one background and have one identity. It will be easy to raise the issue collectively. But our society is distinct and differences, in this connection, as per this theory unless we come together into one umbrella, we can't get our issues addressed.

Resource mobilization theory: we are egocentric and individualistic from making our career  to having benefits. This is why we are discriminated and excluded, as we are not standing together with a collective manner. Therefore, the question is how can we stand together for movement to address our collective problems. As we have not been able to address our differences collectively perhaps this is one of the reasons, we have not been able to get addressed our issues and rights collectively.

It is high time to take up the issue collectively through the CA, therefore, our discussion might be based on this perspectives.

Dr. Krishna B. Bhattachan,

Supreme Court directives and the 2-ICERD's early warning letter issued to government of Nepal on March 13, 2009, Sept 28 are clear enough that IPs have right to have right to participation, representation, free, prior and informed consent and so forth.

ILO Convention 169, UNDRIP and other international human rights instruments clearly talk about the collective rights of indigenous peoples, their right to self-determination, FPIC, customary laws, education into their mother tongue. Moreover, they ensure the direct participation of IPOs.

Rather than the issue of development, these standards says that IPs have self-control over the development, natural resources in their customary lands and territory. Therefore, They are demanding self self-determined development, and much more, if IPs will not have these sort of issues get addressed in the new constitution, this will be burned down.

Bijaya Lal Karna

The CA-II is likely to bring 2019 BS Constitution. I am not convinced that this constitution will be in favor of IPs or other marginalized communities. There were 6 Constitutions which were not in our favor. If this constitution again doesn’t address any our rights, we don't need constitution at all. The autonomous region or the provinces will not have rights more than district development committee as per the discussion we are hearing now a days, if this is then why, federalism then. Our presence in CA is meaningless. Therefore, there is no other option than taking to the street. This is only the solution. We should not only tear and burn the constitution but the writer as well,

Ganesh said:

If the constitution is to be consensus document, it must address the rights of dalit, muslim, Madhesi, IPs and women. We have to find the common ground and act collectively to raise our common agenda and make our voice loud, if our rights need to be addressed. 

Dr. Manandhar former CA

To what extend excluded group get excluded than this, how long can we live being identity less community. It is not the issue of making an agreement. Agreements with whom who have discriminated or excluded to us. We are asking for the collective right which is no other than community rights, we are not asking for individual rights. While raising this, we hear the voice that Nepal is poor. It can't bear, but billions rupees are spent in the treatment of corrupt politicians. The country itself is not capable of, have to depend on the foreign donation, in this; the issue of capability can't be the basis of restructuring of the state. The name, number, boundary of the restructuring of the country is important, as it these are related with the rights, resources. IN the CA-I, we agreed on the process how to do the demarcation of the boundary with majority settlement of community. There has been discussion of 'multiple' identity, I am still confused what it is. The provision of affirmative action, positive discrimination, reservation prevails in every country, why not in Nepal?

Durga Sob: FADO

Excluded community make up 85 percent. Their issues are of major concerns, but I also believe that the street protest is only the means. This sort of sitting is necessary not for others but to finalize the modalities for street and how to give a hand to one another community. Within Dalit whether we are talking of identity or own dignity, which has been issues of discussion. If there was not the proportionate representation, Dalit will have zero representation in the CA. Therefore this provision should not be missed out.  

Commissioner NHRC: Mona Ansari

CA members having a kind of threat, the threat is that if they raise a voice /issues of their particular community, they would be thrown away/taken action against. This is an opportunity to establish oneself putting aside of the threat. While talking about the muslims issues, they are jumbled up in their issues, they are surrounded only around the Modarasha.

Narayan Limbu:

Major parties are stating 'communal' while raising the issues of state restructuring on the basis of ethnic identity. Therefore, struggle, street protest is undoubtedly only the solution. The discussion is based only in the central, but not reached to the community. If we could go to the community level, we will have more trust. we cannot have hope from the current CA.

Krishna Kumari waiba:

Supreme Court had issued order to ensure the community representation, but where were we then and now we are saying the CA election was unlawful? Why can't we excluded communities come at one place stand and protest. As we have not been able to unite, other party has been able to smash and rule. IPs have been left behind, as one has been pulling the leg of another, why can't we stand together? Why we can't support to the movement led by padma Ratna Tuladhar?

Bam Kumari Budha Magar

If NEFIN doesn't take any lead in this transition and it will be dubbed 'black history', while, talking about women, 'diversity of women should be addressed.

……

(Anonymous)

Federalism should be based on the cluster of ethnicity.

Autonomy, self-rule and shared rule, and identity if any one of these doesn't function well then the federalism fails. The constitution should be as if that is the Covenant of ethnic and caste groups. Koshi province---hindu religions.

Solidarity, we are confused in the solidarity. We have differences, but we have to be able to convince another about the issue of one to other, in this connection, intellectuals have role to play so as the political parties.

Tuk Tamang

The role of Shayam Shrestha In my understanding is not the one that he is performing. It is not clear which one to support --The movement led by Padma Ratna Tuladhar or 19-poliitcal parties alliance

 

Prof. Kapil Shrestha:

Human Rights based movement, I am convinced that Bahun-Chhetri have been excluding large chunk of the population. After 1990, years for them Bahun and Chhetri the age has been like a golden era. Constitution is the document of consensus, there should not be the prevalence of political ideology. The populations casted the votes and elected representatives and have given the authority therefore, the protest is going to be fault decision.

Parshuram Tamang

This is not the time to talk about the issue about the IPs, Dalits, Madhesi, Muslims, but the time is to talk about the solution and means and methods to address them. IN this connection, I see a lot of challenges.

Shankar Limbu

IPs rights are human rights. If this new constitution is to be Human rights friendly constitution, it should address the rights of IPs women and Dalit and other excluded communities. The paper presented here seems to be more focused on the Individual rights not of collective or community right, which is not the rights of indigenous peoples.

Interim constitution clearly says that this to write new constitution by the people themselves. Thus, CA's role is only the role of secretariat. It should have consultation with IPs, Madhesi, Dalit, women, consultation and write constitution.

IPs participation was meant from the 26 seats filled in the CA, but CA-II did same thing as CA-I did. This is clear enough that IPs don’t' have participation in CA. Thus protest is only the solution.

The grund norm while writing constitution is obviously the peoples' voice, which comes from the street, take example of Ecodor's CA which was established by street.  The movement was led by IPs. But here in Nepal, the NEFIN which is supposed to take the lead of the movement, but has not been able to do, the movement led by Padma Ratna Tuladhar, has certain purpose, NEFIN. Internationally, Madhesi Dalit, Muslim and IPs have made an International alliance coalition committee based on International human rights instruments. It is high time to take to the street nationally and internationalize through this alliance.

Pemba Bhote:

The protest is the last option. IPs movement alone is not enough. IPs movement has been taking place in two-differences. The IPs movement alone is not enough, the movement should be taken together with Dalits, Madhesi, Muslim and women.

Padma Sundas

The sooner the better if we take to the street collectively. We are getting late in this. NCARD has the role to take a lead as it is the collective organization/forum of this marginalized community. It listens very easy issue, but the differences have led to difficulty in the movement. Dalit is excluded. Dalits have been assimilated with the Chhetri and the Silpi group. Dalits are demanding the reservation with compensation within the federal states.

 

Shayam Shrestha: answers to the question

It is difficult to have a collective agenda coming from the diverse community or participants. The reality is, the CA-I to some extent have addressed the issues of marginalized community but the CA-2, the issues have missed them out. Therefore, there is the need of sectoral alliance within CA and outside. The CA members from different marginalized communities-- IPs, dalit, women, Muslim, Madhesi, should make caucus for discussion sooner the best. And from outside as well, the movement should create a pressure.

"Mabuhang"

-          Supreme Court order—can be taken as agenda for movement.

-          Mutual trust and  among and between each other IPs, dalits, Madhesi, Muslim.

-          Federalism—no clear understanding about federalism—we are in favor of the federalism, how we can address the issues of these excluded groups.

-          There is space to work together in this sector.

-          There is need to be clear on various issues, such as ethnicity and nations, why we are frightening to say that it is the ethnic state. We ourselves are confused.

-          We have to sit and talk closely among Dalit and other communities. How we can make best effective tot eh non-territorial federalism.

-          If the Movement comes to the street, then only the movement if not movement it is the not true.

-          Maoist movement was strong enough as because these group supported them. We have to have depth discussion.

Sumitra Manandhar (Gurung)

-          Majority of community have been excluded, thus for last 14 years, we (NCARD) team has been taking up the issues of marginalized communities together. We are asking merely the equal rights and status, 85 percent, the number or the percentage itself is self-explanatory that it has the power. Now this is not time to discuss about their issue. Now, we have at least a forum to bring these communities together. We have to have a collective movement—Madehsi Muslim, women and IPs.

"End"

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