THE CONSTITUTION AS THE SOURCE OF EXCLUSION – 4th CHAPTER

August 19, 2006 at 7:12 am Leave a comment

THE CONSTITUTION AS THE SOURCE OF EXCLUSION

Mahendra Lawoti [..About Lowati..]

Introduction

The marginalized socio-cultural groups have repeatedly protested against various articles of the 1990 Constitution that they claim discriminate against them (NEFEN 2000; NSP 2050 v.s.; FWLD 2000; Khapangi 2058 v.s.). The dissatisfaction against the Constitution began the moment it was promulgated in November 1990. Even the moderate leftist groups, who were involved in the Constitution engineering process, accepted it only with qualifications. The CPN (4th Convention) and other radical communist parties and ethnic groups and parties rejected it outright or many articles of it (Hutt 1991; Baral 1998; Thapa and Sijapati 2003). The Nepal Sadvawana Party (NSP) even burned the Constitution in mid 1990s. Since 1996, the Maoists have begun an insurgency whose major goal is to replace the 1990 Constitution with a new one. As discussed earlier, indigenous nationalities, dalit, and women have high participation in the insurgency, indicating their alienation from the state, including the Constitution that governs it. Dominant group intellectuals have also pointed out various shortcomings, such as non provision of decentralization in the Constitution and weaknesses in establishing effective corruption control mechanisms (Gyawali 2055 v.s.).

However, proponents of the Constitution have argued that it is one of the best in the world, if not in South Asia. Many of the framers and their supporters still make the claim, even though the number is dwindling in recent years. Till 2003, the major mainstream political forces, such as the NC, CPN-UML, and RPP, supported the Constitution almost totally, indicated by not even a single attempt to amend it. The question then becomes why some consider the Constitution as a good document while others consider it highly problematic, so much so that they even consider that amendments in the Constitution would not be enough? Why do the proponents of the Constitution continue to lavish praise on it despite such intense dissatisfaction from a large section of the society? This paper will explore these questions. Before that, however, a survey of scholarly literature on the 1990 Constitution and Constitutionalism in Nepal is warranted.

The 1990 Constitution: Scholarly Reviews

The scholarly critique of the 1990 Constitution is mixed. Some good sides of the Constitution have been identified, such as putting sovereignty on the people, the inclusion of human rights, right to information, privacy, and so on, especially by early reviewers (Ellingson 1991; Shakya 1995; Baral 1998). Compared to the Panchayat Constitution, it has recognized the cultural plurality of the country to a higher degree. Hardly any scholar questions that it is not better than the previous Panchayat Constitution. But the relevant question is how democratic is it in terms of its contemporaries (new democracies in developing societies) and Nepal’s socio-historical context?

Critics have shown its weakness in several aspects: the procedural aspect where the Constitution was formulated by a select group of people (representing the King, NC, and ULF politically and caste hill Hindu elite males or CHHEM socially) within a short period of time (Hutt 1991; Lawoti 1999; Hoftun, Raeper, and Whelpton 1999; Mikesell 1999). Others have shown its ignorance of the minority issues, non-recognition of marginalized socio-cultural groups equally, and articles that discriminate against women, indigenous nationalities, and madhesi (Gurung 2000; Lawoti 2002 b, 2000a; Bhattachan 1995, 1999 b; Yadav 1997). Marxist scholar Mikesell (1999) has argued that the Constitution only serves the interests of the entrepreneurs and bureaucrats and does not serve the urban poor and rural mass. Still, others have shown its shortcomings indirectly by proposing alternate state structures such as federalism and proportional electoral system (Khanal 2003; Bohora 2002; Bhattachan 2003 a; Lawoti 2003 b). Beyond the issues of inclusion and exclusion, critics have also pointed out that the King still retains power, especially in terms of influence over the army (Mikesell 1999). Others have argued that the 1990 change did not hand over power to the people. Instead, they argue that the King’s power was taken away but the political leaders kept it within them by concentrating it at the center (Brown 1996; Lawoti 2002 b).

The review of the literature on the Constitution makes it clear that, in terms of inclusion and exclusion, there are both positive and negative aspects in the Constitution. No review has, however focused on the overall impact of the Constitution on the socio-cultural groups. Baral (1998) does review the Constitution in terms of ethnicity but his analysis praises the positive aspects of the Constitution but fails to notice the discriminatory articles, except for the absence of secularism, nor the widespread discontent toward it from the women, indigenous nationalities, madhesi, and dalit. This chapter will look at both aspects of the Constitution. How are the different elements collectively affecting the marginalized socio-cultural groups? This chapter will focus on the impacts of various articles on the exclusion of the marginalized social cultural groups. How have the discriminatory articles affected the marginalized groups? Have the positive aspects of the Constitution contributed in the inclusion? What are the overall impacts of the negative and positive articles of the Constitution on the marginalized socio-cultural groups?

Needless to say, the argument of this work is not that every aspect of exclusion can be explained by the Constitution. Social and historical factors are also at work but my argument is that the Constitution is also playing a significant role in the continued exclusion of the marginalized socio-cultural groups. My aim in this work is to make that explicit.

This chapter will base its evaluation on the role Constitutions are supposed to play. It assumes, based on theories of Constitution and Constitutionalism, that a ‘Constitution contains two basic elements: a “plan (or frame) of government,” and a “bill of rights”’ (Sartori 1962: 856). Specifically, the question I ask here is: has the 1990 Nepali Constitution provided a frame of government that can include different socio-cultural groups and does it protect the social, cultural, and political rights of all socio-cultural groups of the country?

The 1990 Constitution and Exclusion

The role of the 1990 democratic Constitution on the exclusion of the socio-cultural groups can be understood more fully if we analyze its various articles that deal with language, religion, culture, and gender, going beyond its general articles that declare equality and freedom to all. I will elaborate on them to demystify the claims of a large section of the CHHEM that praise the Constitution. Table 4.1 summarizes the discussions that follow and lists additional ways in which the constitutional discrimination has impacted the various socio-cultural groups.

Majoritarian Political Institutions in a Multicultural Society

The adoption of the majoritarian democratic political institutions, such as a unitary state (instead of a federal structure) and first past the post (FPTP) electoral system (see chapter 5, 8, and 9 for details), by the Constitution is one of the major reasons for the political exclusion of various socio-cultural groups in Nepal (Lawoti 2002). These structures set the rule of the game that favors the dominant group. The majoritarian institutions, which have been found to work in homogenous or non-plural societies but not to work in multicultural societies, give most of the power to whoever gets a bare majority and nothing substantial to minorities. In multicultural societies, it results into the dominant group enjoying power most of the time. In matters where differences along ethnicity, language, religion exist, the majority will always win in those matters while the minority will always lose. This will facilitate the tyranny of the majority. Majoritarian institutions have been found to exclude non-dominant socio-cultural groups in multicultural societies (UNDP 2000; Horowitz 1994). Large cross-national studies have verified that majoritrarian institutions may work in homogenous or non-plural societies but do not work in multicultural societies (Lijphart 1984). In fact, scholars have found that violent conflicts occur more often in countries with majoritarian institutions (Saideman et al; Cohen 1997).

The institutions that work in culturally plural established democracies are called consensus institutions. The consensus institutions, as opposed to majoritarian institutions that concentrate power, diffuse and share power among different groups. The consensus institutions ensure that various socio-cultural groups that are disadvantaged are compensated for the disadvantages they face in the polity. This is achieved through explicit power division (power divided among more than one level of government), sharing (involvement of more than one group in the executive, administration etc.), recognition of differences, and the protection of minority rights. Thus, the consensus institutions work in multicultural societies because they can address both class and cultural cleavages that are found in multicultural societies whereas the majoritarian institutions do not work because they can address only the class cleavage.

The majoritarian principle, though sound theoretically, has been found to fail in multicultural societies because of two reasons. First, the majoritatian institutions do not address cultural cleavages that exist in multicultural societies. A unitary state, which is a major majoritarian institution that concentrates power in the center, deprives socio-cultural groups with autonomy and self-governance, which is essential for the self-development of socio-cultural groups. Recognition of differences among groups and group autonomy to facilitate their development are essential to address cultural cleavages. When power is concentrated in the majority, the non-majority cultural groups in a multicultural society may not have much say in the governance for long periods of time. In cultural issues, they will always lose. It will increase frustration and alienation among them. Such problems do not arise in homogenous or non-plural societies because cultural cleavages are not salient. The contested issues in non-plural societies are mostly political and economic, and the political and economic majorities and minorities keep on changing. Today’s minorities become tomorrow’s majorities. Thus, everybody has a chance to become a majority. On the other hand, in multicultural societies, cultural cleavages are durable and majority-minority dynamics along cultural cleavages is more or less permanent. Thus, the cultural minorities will perennially remain minorities in cultural matters if the polity is based on strict majoritarian principles and hence may face majority tyranny (Dahl 1989; Lijphart 1984; Horowitz 1994; Gurr 1993; Guinier 1994).

Second, majoritarian institutions do not protect group rights of the minorities (more on group rights in chapter 5). The principle of universal individualism is the basis for not providing group rights. Its notion is that if every individual is treated equally or provided with the same formal equality, equality will be achieved. This is problematic because people often have differential needs, skill, priorities, and aspirations (Young 1989; Kymlicka 1995 a). The total adoption of principle of universal individualism creates problems in multicultural societies because socio-cultural groups have different values, norms, lifestyles, and worldviews whereas rights guaranteed by the Constitution based on universal individualism are based on the values and norms of the dominant group. Thus, it facilitates imposition of the dominant values and norms on rest of the society. Further, when competition for resources occurs among members of different groups, norms based on dominant values favor members of the dominant group. The equality guaranteed in the Constitution that is based on individual rights, hence, does not ensure equal rights among individual members of different socio-cultural groups. When groups are not equal, members of the unequal groups cannot become equal. Thus, despite the formal equality guaranteed to individuals, the members of the socio-cultural groups face differential consequences. For instance, despite the guarantee of equal individual rights in the Constitution to all Nepali citizens, a madhesi, because of his/her identity, is either unable to acquire a citizenship or faces sever difficulty in acquiring it (details of the Constitutional discrimination will be discussed in a later section). Likewise, the formal guaranty of equality in the Constitution has not been able to ensure equality to women in distribution of citizenships. Nor has the guaranty of formal equality ensured equality among members of different linguistic, religious, and cultural groups. Individual members of the indigenous nationalities, madhesi, and Muslim face many hurdles in their everyday life due to the laws of the land. For instance, in a Hindu state where more than 70 percent of public holidays are on Hindu festivals, the indigenous nationalities and Muslim are forced to take holidays during the Hindu festivals while they do not get a single public holiday during their own festivals.

Situations become more problematic when the state thinks that in some cases it has to select one option among different alternatives. For instance, if the state thinks that it has to adopt one medium language, it will most probably end up adopting the dominant language. The process will hurt other groups whose languages are not selected. The solution in such cases might be to make several medium languages, as in Switzerland, Belgium, and India, or recognize that languages that were not selected will face disadvantages, and hence compensate for the disadvantages they face. Likewise, when the political institutions are adopted, the dominant group’s choices prevail and the institutions thus adopted are imbued with their values and norms (Kymlicka 1995a; Brass 1991; Tully 2001). Thus, in Nepal the state institutions are imbued with the CHHEM values. This means that the group rights of the dominant group are protected because the state institutions reflect their group values and norms. Meanwhile minority rights are not protected in the Constitution. This means that while the group rights of the dominant group is protected, the group rights of the minorities are not. It puts the marginalized socio-cultural groups at sever disadvantages because they have to compete with dominant members who are favored by the state institutions and its policies. Such subtle double discrimination has contributed in the exclusion of various socio-cultural groups.

Members of different groups cannot become equal if groups are treated unequally by the state. A person whose language is discriminated and whose religion is not equally recognized cannot compete in equal footing with a member of the dominant group whose religion, language, and culture is promoted by the state. In such circumstances, declaration of formal individual equality in fact discriminates because it does not recognize ethos and norms that are different than the one that under grids the formal equality.

The last 13 years have clearly demonstrated that the political institutions in Nepal have failed to include the diverse socio-cultural groups. The marginalized socio-cultural groups continue to face severe exclusion in important realms in the society and polity. Since the political exclusion has in fact increased in many sectors after the adoption of these institutions, the democratic political institutions are a major reason for the exclusion (Lawoti 2002).

Racist and Sexist Elements in the Constitution

The second reason for the exclusion of various socio-cultural groups due to the 1990 Constitution is the racist and sexist nature of many of its articles. The 1990 Constitution is racist because many of its article promote one language (Khas-Nepali), one religion (Hindu), one community (hill), and one culture (CHHEM) while discriminating against, constraining, or not recognizing other cultures and groups (HMG Nepal 1990). Here I am following the UN definition of racism, which is supported by academic literature. According to the UN Convention, ‘racial discrimination’ is

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life (Convention on the Elimination of All Forms of Racial Discrimination 1969).

Many articles of the 1990 Constitution favor the dominant group and culture over other cultures and groups. Some of the discriminating articles are explicit while others are implicit. Laws and public policies based on these articles often perpetuate discrimination in everyday life. Likewise, the marginalized socio-cultural groups also face problems due to omissions in the Constitution. For instance, the Constitution does not protect minority rights nor does it recognize, as discussed earlier, group rights of marginalized socio-cultural groups.

Many of the discriminatory articles are tucked behind nice charade of rights and freedoms. Hence, they are often not observed by untrained eyes. Discussion of the articles that deal with language can illustrate this charade of hiding discriminatory articles behind guarantee of rights. Article 11.1 says that ‘All citizens are equal before law.’ It conveys the message that all language speakers are equal before the law. Article 18.1 states that ‘Each community residing within the Kingdom of Nepal shall have the right to preserve and promote its language, script and culture.’ Likewise, the Kingdom is recognized as ‘multilingual’ in article 4. These provisions give a broad sense of equality among native languages of Nepal and their speakers. However, other articles of the Constitution discriminate against non Khas-Nepali languages and communities. For instance, the Constitution explicitly constrains the development of non Khas-Nepali native languages. According to article 18.2, communities are permitted to operate schools in their own mother tongue up to primary level only. This article constrains the right to operate native language schools beyond primary level. The article can also be construed as not permitting non-community members to operate schools in various Nepali native languages. Additionally, article 6.1 gives Khas-Nepali special recognition by calling it ‘the language of the nation of Nepal’ while article 6.2 calls other native languages as ‘national languages.’ Article 6.1 also declares only the Khas-Nepali as the official language. These articles have clearly created inequality among native Nepali languages. Further, it may be no coincidence that in articles 11.2 and 11.3 that define the right to equality, ‘language’ is omitted as a basis on which the state would not discriminate whereas ‘religion, race, sex, caste, tribe or ideological convictions’ are clearly mentioned as basis for non-discrimination. Likewise, language is also a ground for discrimination in the acquisition of citizenship by foreigners. Only those who ‘can speak and write the language of the nation of Nepal’ or Khas-Nepali are eligible for acquiring Nepali citizenship. Similar privilege is not awarded to persons who learn other native Nepali languages. Hence, equality guaranteed in various articles (11.1, 4, 18.1 and others) become meaningless due to other articles that discriminate (18.2, 6.1, 6.2, 11.2, 11.3). When native languages are not recognized, treated equally, or is discriminated against, the language speakers also face non-recognition and discrimination. In such circumstances, articles, such as 11.1 that says ‘All citizens are equal before the law’ have not been able to provide equality to non Khas-Nepali languages and their speakers. In fact, they have till now helped to perpetuate inequality and discrimination because the proponents of the Constitution often quote such articles to claim that the Constitution guarantees everyone equally and hence call it as one of the best in the world. Likewise, probably based on reading of the discriminatory articles, the Supreme Court declared illegal three local governments policies to make local native languages as second official languages within their jurisdictions following the authority provided by the Local Self Governance Act (2055 v.s.). The Supreme Court also declared illegal the decision of the Public Service Commission to not conduct exam on Khas-Nepali subject (Semanoff 2000). Similarly, a lot of other articles discriminate in other spheres, which will be discussed in the next section.

Likewise, the Constitution is sexist because it does not treat men and women equally in fundamental issues like citizenship. The constitutional measures (article 9.1 & 9.2) that allow the acquisition of citizenship through father’s lineage only discriminate against women. The children of Nepali women married to foreign citizens cannot obtain Nepali citizenship. In fact, this article is more regressive than the Panchayat Constitution, which did not discriminate on the right to citizenship based on gender (Mikesell 1999; Lawoti 2000). Women are also discriminated by the more stringent eligibility requirements for citizenship acquisition by foreign spouses of Nepali women compared to Nepali males’ foreign spouses (Article 9.5). Additionally, hordes of laws flowing from the Constitution discriminate against women in property inheritance, penal laws, marriage, divorce, and so forth (FLWD 2000).

The racist and sexist nature of the Constitution can be assessed indirectly also. Some people have called the 1990 Constitution as ‘one of the best in the world,’ if not in south Asia. If we analyze the ethnic/caste of the people who do not see the many discriminatory articles, there is little surprise. Most of those who have declared the Constitution as one of the best in the world are male Bahun. It is understandable why they bestow so much praise to the Constitution: it is protecting their interests and ensuring their continual domination. And, it is being done with a democratic façade and legitimacy.

How do these discriminating articles facilitate exclusion? The next sections will demonstrate the exclusionary consequences of the racist and sexist articles of the 1990 Constitution. It will group the articles in terms of their explicitness and impacts.

Explicit Discrimination and Political Exclusion

The discriminatory articles operate at several levels. Explicit discrimination is the first level. Many articles explicitly discriminate against marginalized socio-cultural groups, their cultures, and ways of life. The NEFEN (2000) says that the Constitution has more than 25 discriminating articles toward the indigenous nationalities. The madhesi, women, dalit, and minority religious groups have also deplored articles that discriminate against their groups and their culture, religion, and languages (Yadav 1997, NSP 2050, FLWD 2000). As discussed earlier, discrimination occurs even at a fundamental aspect such as citizenship right. The impacts of discriminating citizenship articles toward the women may not have widespread impact because the children can acquire citizenship from the father’s side also (with regard to article 9.1) but the restrictive citizenship clauses, however, have much broader impact along identity lines. Article 8.a makes it almost impossible for people whose parents and grandparents had not obtained citizenship certificates earlier to acquire it now. Many Nepali, especially the poor and illiterate in rural areas, did not obtain citizenship certificates when it was distributed because citizenship certificates had no use then. Now, the off springs are facing difficulties in acquiring citizenship certificates because the fathers do not have the documents, through which the children become eligible to acquire their citizenship certificates. This article has denied citizenships to more than 3 million adult Nepalis, mostly from the madhesi community (NSP 2050 v.s.; Burkert 1997; Upadhaya 2052 (1995)) along with indigenous nationalities and dalit (Bhattachan 1999; The Himalayan Times 2003). When people are denied or have difficulties in obtaining citizenship certificates, which is needed in all types of transactions ranging from obtaining employment to purchasing land and houses to acquiring passports for traveling abroad, they are deprived of their basic rights as citizens. It limits their movement and growth, disadvantages them economically, constrains them socially, and contributes toward excluding them politically.

The source of racism and sexism in the Constitution is the declaration of the state as Hindu (in essence, parbate or hill Hindu version). Articles 11.2 and 11.3 state that the Constitution is against discrimination grounded on religion but article 4 explicitly declares Nepal as a Hindu state. By declaring one religion as the state religion, it treats other religions and their followers unequally. It has symbolic as well as practical consequences. Symbolically, the Hindu religion followers might perceive that they have more rights to the state and its resources and may consider themselves superior to other religion followers whereas non-Hindus might feel themselves as second-class citizens because they have to live in a society where another religion is the state religion.

The declaration of the state as Hindu has resulted into many negative practical consequences for the marginalized socio-cultural groups. It treats non-Hindu religion members, ‘low caste’ Hindus, madehsi Hindu, women, and secular people unequally. The declaration of the state as Hindus has facilitated the state institutions and policies to be imbued with CHHEM norms and values, which discriminates against the socio-cultural groups. The dominant values are foreign to them and they often consider their values and lifestyles as deviant. How can non-Hindus feel equal and included in a Hindu state? How can ‘low caste’ Hindus expect to be treated equally in a Hindu state where caste system is prevalent? The Hindu traditions and norms prevalent among the ‘upper caste’ group would usually consider the ‘low caste’ as inferior, subconsciously if not consciously. Likewise, how can women expect to be equal legally and socially treated equally in a Hindu state where the laws are influenced by patrichical Hindu dharmasastra (religious texts)? Since Hindu is defined in Nepal as parbate Hindu, the madhesi Hindus are also discriminated against (for instance, the 1854 Civil Code put the madhesi Bramhim below hill Chhetri). Likewise, the constitutional provision banning religious conversion has been used against the Muslim and Christian communities to harass them on charges of canvassing for conversion. The declaration of the state as Hindu provides sustenance and support to the discriminating traditions and values and contributes in the continuation of the social and legal discrimination. When their religions are not recognized equally and are, in fact harassed due to it, or are treated as ‘inferior’ by the tradition of the state religion, people of different religious faith are disadvantaged. Due to the inequality they cannot compete with the members of the dominant group in social, economic, and political sectors. It contributes in their political exclusion.

In Nepal, some commentators from the dominant group argue that as many countries have declared themselves as Muslim states, there is nothing wrong by declaring Nepal as a Hindu state. The Muslim countries cited are not democratic and Nepal should not aspire to follow the footsteps of undemocratic countries. Likewise, others argue that despite being secular, India has not been able to avoid religious conflicts. However, a more relevant question is how much more religious conflicts would India had to endure if it had not been declared secular? India may have in fact disintegrated further along religious line. If not, it may have encountered more religious conflicts. Additionally, the quality of Indian democracy would have been much lower if minority religions and their followers had faced more discrimination. On the other hand, declaring the Nepali State as secular will not restrict the rights of the Hindu religious followers. They can continue to practice it. The issue is: people may need religion but why should a state adopt one?

The clauses that restrict the fundamental political rights and civil liberties based on ‘castes, tribes, or communities’ constrain the socio-cultural groups from enjoying full freedom. As an underprivileged group, oppressed socio-cultural groups have reasons to mobilize based on identity because they are oppressed based on their identities. Scholars have pointed out that caste associations and political mobilization based on them have helped to empower the traditionally oppressed groups in India (Rudolph and Rudolph 1960; Rudolph and Rudolph 2002). In Nepal, however, prohibition on establishing political parties based on ‘religion, community, caste, tribe or region’ (article 112.3) has constrained the oppressed socio-cultural groups from political mobilization for collective welfare and empowerment. For instance, the Election Commission denied registration to the Mongol National Organization (MNO) and Nepal Rastriya Janajati Party (RJP). These restrictions also limit the universal adult franchise guaranteed by the Constitution by denying voters wider choices of political parties.

Because of the registration denial, among other things, the MNO had to field candidates formally as independents, not as a political party’s candidates. Additionally, it was not awarded a permanent party symbol for elections (Hangen 2000). It had to field candidates with different symbols during elections, whereas the election commission recognized party candidates have the same election symbol across the country over the years. These constraints disadvantage parties like the MNO. Some other ethnic parties obtained registration by presenting a non-ethnic facade. These maneuvers to bypass the constraints have blunted the political effectiveness of ethnic parties as their operations are hindered, their vulnerability increased, and their freedom restricted.

The fear that formal ethnic oriented parties would foster communal conflicts is without merit, as demonstrated by experience of other countries. ‘Christian’ parties, Muslim league, Telegu Desam, and so forth operate freely in a host of established democratic countries like Germany, Belgium, Holland, Switzerland, and India etc. The assumption for banning ethnic parties in Nepal, in fact, exposes the racist psychology of the dominant group. The dominant assumption is that all members of ethnic groups will vote for respective ethnic parties that claim to represent them. This hardly happens. On the other hand, the communally and religiously named parties in democracies have not created problems but, in fact, such parties have contributed in aggregating and articulating the aspirations of different groups, regions, and segments of their societies, helping to meet some of the demands, and preventing violent. Powell (1981: 862 and 870) found that among different party systems around the world, representational party system, where ‘strong and distinct linkages between different parties and social groups’ exist, performed better than majoritarian party systems (similar to current Nepali party system) in terms of higher participation, executive stability, and preventing violence (riots, deaths, and suspension or overthrow of democracy).

The articles 12.2.1, 12.2.3, and 12.2.4 permit restriction of fundamental rights such as the freedom of association, assembly, and expression if the state perceives threat to ‘harmonious relations subsisting among the peoples of various castes, tribes or communities.’ The restrictions are, interestingly, longer than the articles that describe the rights (Ellingson 1991). The mention of ‘castes, tribes or communities’ in clauses that permit legislation of laws to restrict fundamental rights has unnecessarily targeted the disadvantaged socio-cultural groups. If the intention is to manage peace and harmony in the society, any law that does not mention ‘castes, tribes or communities’ can achieve that. The irony in Nepal is that the current communal state (because one community controls it and governs based on its values to serve its group interests) considers activities that demand linguistic, religious, and cultural equality as ‘communal.’ Whereas, the communal state and society do not see themselves as communal (Gurung et al. 2000; Gurung 1993; Bhattachan 1995). Through their communal eyes, they, instead, often see socio-cultural groups working for community empowerment as communal. Because the administration is overwhelmingly dominated by the CHHEM, and because of it the laws are often interpreted with the dominant perspectives, the socio-cultural groups’ activists have to work with threats of their freedom and civil liberties being taken away and prosecuted for being ‘communal.’ Needless to say, these articles have the potential to restrict their political aspirations, activities, and effectiveness, which in turn contribute toward their political exclusion.

Table 4.1: Constitutional Discrimination and their Impacts

  • 1. Declaration of the state as Hindu (Article 4).
  • 1.1 Promotion of Hindu religion; unequal treatment of other religions by the state.
  • 1.2 Excessive propaganda of Hindu religion by Royal Nepal Academy, Radio Nepal and other state agencies while neglecting other religions.
  • 2. Inequality between native languages
  • 2.1 Nepali or Khas-Nepali has been declared ‘the language of the nation’ and official language; other native languages have been called ‘national languages’ (Article 6).
  • 2.2 Constitutional provision for teaching non Khas-Nepali native languages up to the primary level only, but not beyond it (Article (18.2).
  • 2.3 Compulsory imposition of Sanskrit in schools till 2003 (being planned to offer as an optional course).
  • 2.4 Large & disproportionate state subsidy for promotion of Khas-Nepali and Sanskrit.
  • 2.5 Unequal treatment between Khas-Nepali and other native language literatures and between devangiri and other native scripts.
  • 3. Discrimination in citizenship distribution
  • 3.1 Based on gender: acquisition from mother’s lineage is not allowed & foreign spouses of Nepali women are not eligible for acquiring Nepali citizenship (Article 9.1, 9.2, & 9.5).
  • 3.2 Based on language: only foreigners who learn Khas-Nepali language are eligible (Article 9.4a); foreigners who learn other native languages are not extended the privilege.
  • 3.3 Based on community identity (application of Article 8a); more than 3 million adult Nepalis without citizenship certificates.
  • 4. Restriction on registering political parties on the basis of religion, community, caste, tribe or region (Article 112.3).
  • 5. Restriction on freedom of opinion and expression: laws can be made to impose restrictions on acts that may disturb relations between ‘castes, tribes and communities’ (Article 12.2.1).
  • 6. Restriction on freedom to form unions and associations: laws can be made to impose restrictions on acts that may disturb relations between ‘castes, tribes and communities’ (Article 12.2.3).
  • 7. Minority symbols and heroes not included as national heroes and symbols.
  • 8. Overwhelming public holidays declared on dominant-group festivals. Some groups do not have any public holidays on their festivals.
  • 9. Annexation of native place, river, mountain names and other titles by the dominant names.
  • 10. Laws based on parbate Hindu male ideology.
  • 10.1. Laws are based on patriarchy.
  • 10.2. Divorce, Marriage, Inheritance laws are based on Hindu norms.
  • 10.3. Criminal laws based on Hindu values, e.g. 12 years imprisonment for killing cows.
  • 11. Discrimination in accessing education based on caste, community and religions.
  • 11.1. State subsidized free residential education (up to Ph.D) in Sanskrit schools & University. Accessed mostly by male Brahmin.
  • 11.2. The lack of state support to native language educational institutions.
  • 11.3. The lack of recognition of education provided by Madrasaas and Buddhist Monasteries.
  • 12. Discrimination in preserving different cultures.
  • 13. Manufacturing and tampering of the Census data.
  • 14. Excessive stereotyping based on caste, region, gender, ethnicity and religion.
  • 14.1. Derogative sayings, morals, proverbs, and songs that denigrate women and minorities.
  • 14.2. Prevalence of untouchability and restriction on accessing public spaces to dalit.
  • 15. Restrictions on conversion (Article 19.1) but Hindus are free to claim others as Hindus.
  • 16. Transmission of disproportionate radio programs in Khas-Nepali language.
  • 17. Under representation and misrepresentation of minorities in media.
  • 18. Public service exams based on dominant values and norms and in Khas-Nepali language.

Source: Lawoti (2002). Article numbers indicate articles of the Constitution.

Omission of Minority Rights: Implicit Discrimination and Exclusion

In established multicultural democracies, minority rights are enshrined in the Constitution. In Nepal, however, minority rights are not protected in the Constitution. This is strange because protecting minority rights is one of the most fundamental aspects of democracy, more so in multicultural societies (see chapter 10 for more discussion on minority rights). Without protecting minority rights, societies may face ‘the tyranny of the majority.’ A country is not considered democracy if it does not safeguard minority rights.

The 1990 Constitution does not recognize or acknowledge customary and personal laws of minority religions and communities like Muslim, Buddhists, and indigenous nationalities nor the land rights of the indigenous people (Subba, Pradhan, and Angbuhang 2000). Some of the customary laws of the non-Hindu communities, which are not recognized by the laws, are in fact egalitarian and progressive. For instance, some forms of inheritance rights to women exist in Buddhist, Muslim, and some of the indigenous nationalities communities. However, since the legal system, following the Hindu tradition favors males in inheritance rights, relatively progressive customs and practices of non-Hindu groups and communities are under threat.

Instead of recognizing progressive customary and personnel laws, the Constitution has helped to impose regressive laws (such as citizenship rights and inheritance laws discussed earlier) based on the Hindu traditions and values on the whole society. The ‘upper caste’ Hindu biased constitutional provisions and laws have forced non-dominant groups to conform to the dominant values systems and customs. In issues such as inheritance, marriage, divorce, criminal laws and so on, minority communities have been forced to abide laws based on Hindu norms (Ansari Forthcoming; Lawoti 2000a).

Further, in established democracies once the minority rights are enshrined in the Constitution, the amendment procedures are made very difficult to protect the articles. In Nepal, on the other hand, the rigid constitutional amendment procedures exist but they are working in a perverse way. The rigidity in amendment procedures has made abolishing the discriminatory articles very difficult. Thus, the rigidity in the amendment procedure is perversely safe guarding the domination of the dominant group in Nepal.

The absence of minority rights has facilitated exclusion in at least two ways. One, since the normal majoritarian processes facilitate domination of the dominant group, the absence of group rights of the minorities means that the marginalized socio-cultural groups face disadvantages in everyday life through normal norms and processes. Two, in absence of minority rights that protect cultural and other group rights of the marginalized socio-cultural groups, the discriminating Constitution articles undermine the socio-cultural and political rights of marginalized socio-cultural groups in an unhindered manner. The result is that the marginalized socio-cultural groups are dominated juridically by the CHHEM group. Members of groups who are treated unequally by the state and its Constitution get excluded because they cannot compete with members of dominant group who are favored by the state, its institutions, and laws.

Unfavorable Common Laws and Public Policies

Discriminatory common laws, acts, and public policies derived from the discriminatory constitutional articles further reinforce discrimination of the marginalized socio-cultural groups. According to the NEFEN (2000) there are more than 40 legal provisions on marriage, citizenship, criminal punishment, land rights, election codes, associations and meetings, forests, alcohol, education, land taxation and so on that are harmful to the indigenous nationalities (Subba et al. 2000; NEFEN 2000). More than 100 legal provisions discriminate against women in citizenship, inheritance, penal, marriage, divorce, trafficking, rape, employment and so on (FWLD 2000). The dalit, Muslim, and madhesi have also complained against various discriminatory laws. The foundation of these laws is the Constitution.

Additionally, some common laws work against some of the positive spirits of the Constitution. For instance, there are several loopholes in the Civil Code and other laws that have been exploited to continue the practice of untouchability. On the other hand, even though the Constitution is clear on ending some of the social discrimination, laws have not been legislated to implement them. In the case of the dalit, even though the Consitution has ended untouchability and made provisions for punishing untouchability practices, no laws to punish untouchability have been legislated. Absence of laws that make the state responsible for initiating actions against untouchability has allowed it to continue because the dalit are often too weak economically, socially, and politically to wage legal battles.

At the policy level, the discriminatory constitutional articles have provided the basis for biased public policies, such as imposition of Sanskrit and the exclusion of socio-cultural groups in symbolic realms (national heroes, stamps, place names, road names etc.), public holidays, and so on (Lawoti 2000; Neupane 2000). The irony is that the Khas-Nepali is promoted by the state spending millions of rupees whereas many native languages face the threat of extinction. The state owned Radio Nepal and the Royal Nepal Academy excessively promote Hindu religion and Khas-Nepali language. In a study conducted in 2001 on the Radio Nepal, Yatru (2058 v.s) found that 14 native indigenous nationalities and madhesi languages were broadcast for only 7.84 percent of the broadcast time while Khas-Nepali alone accounted for nearly 90 percent, the remaining time allocated to broadcast in English, Hindi, and Urdu. Scholars have also recorded replacement of indigenous place, river, and mountain names by Hindu and Khas-Nepali names (Malla 1996). Likewise, ethnic/caste and religious scholars accuse the state of tempering of the census data to project higher domination of the Hindu religion, Khas-Nepali speakers, and CHHE group (Bhattachan 2003 b; Mabuhang 1999 b; Gurung 1998). The suspicion is so high that prior to the 2001 census, different ethnic/caste, religious, and linguistic organizations launched movements to increase awareness among their groups. Likewise, the disproportionate public holidays on Hindu festivals promote the Hindu culture while the lack of holidays during festivals of other groups undermines their cultures because they cannot celebrate their festivals.

The policies of the state (article 26.10) does say that the state ‘shall pursue a policy which will help to promote the interests of the economically and socially backward groups and communities by making special provisions with regard to their education, health and employment.’ This directive could have paved the way for formulating special policies toward the marginalized socio-cultural groups. However, for more than a decade no special provisions were made for the marginalized groups. On the other hand, even though the directive seems progressive, it has several weaknesses. First, it does not recognize castes, tribes, religious, and linguistic groups as economically and socially backward groups. This is interesting because the directive principle and state policy articles specifically mention castes, tribes, religious, races, communities, and linguistic groups in other topics such as while discussing the aims to establish harmony (article 25.3) and promote healthy and cordial relations (article 26.3) in the society. The mention of socio-cultural groups specifically while discussing potential conflicts but not mentioning them while discussing affirmative policies smacks of racist tendencies toward the marginalized socio-cultural groups seen also in other articles of the Constitution. Second, the directive principle and state policies are not enforceable. This, at the least shows the lack of far sight of the Constitution engineers. They should have realized that the polity, which is overwhelmingly dominated by CHHEM, would probably not enforce them. Hence, they should have made it enforceable, as in India. Third, following on the second point, the state policies do not mention specific programs. Some might argue that such details are not warranted in a Constitution itself. However, in India, the Constitution made specific reservation policies for the dalit and tribal groups (known as indigenous nationalities in Nepal). In India, the Constitution makers were far sighted enough to realize that without laying them specifically in the Constitution, such policies may not come about. The Nepali experience demonstrates that their fear were not unwarranted. In absence of specificity and enforceability of the state policies, no wonder then that the Nepali state did not formulate the special policies toward the marginalized social groups for 13 years.

The Consequences of Racist and Sexist Articles

When the Constitution and other laws of the land discriminate against groups of people in cultural, religious, social, and citizenship realms, they cannot fully develop to their full potential and abilities. Likewise, by not recognizing differences and the rights of the minorities, ignoring the aspirations and demands of the minorities, by viewing the minority issues from the dominant perspective, or by consolidating dominant interests by imposing the dominant values, the Constitution has facilitated an unequal treatment of socio-cultural groups (Lawoti 1999). Citizens constrained culturally, socially, and politically, and disadvantaged by public policies and practices cannot compete politically with those who are favored by the laws and policies. In Nepal the problem is further compounded because the discriminatory articles and the majoritarian institutions that favor the dominant group are difficult to be got rid off through constitutional mechanisms. These multilevel factors have constrained the socio-cultural groups, hindered their growth and development, disadvantaged them in competition with dominant members, and facilitated their exclusion. Thus, the racist and sexist articles’ of the Constitution is the bedrock of the continuation of exclusion and oppression in Nepal.

Some might argue that the Constitution cannot be held responsible for the exclusion, even if it discriminates against some groups in some respects. A simple comparison of Nepali and Indian constitutions will show the weakness of this defense. If the Nepali Constitution had adopted the reservation policy like the Indian Constitution, dalit and other socio-cultural groups’ representation, like in India, would have been significant in the Lower House, public service, and educational institutions. Thus, the claim that Constitution cannot be held responsible for the mistakes of leaders in terms of not including diverse groups does not hold ground. The leaders may also be responsible for not including the marginalized socio-cultural groups but the Constitution is also definitely responsible for the exclusion.

The impact of racist and sexist Constitution is devastating. If the discrimination had been in some minor matter, some other factors in everyday life could have compensated for it. But here the dominant group has monopolized the Constitution. It has many discriminating articles, as shown earlier, and it is also the source of the many additional discriminating laws and public policies. Consequently, the state institutions, laws, public policies, symbols, nationalism, and many other important arenas have been influenced by the caste hill Hindu elite male norms and traditions. Racism in Nepal has become prevalent with the aid of formal structures and juridical means. The continued, and in fact increased, exclusion in the last 13 years has irrefutably demonstrated the inability of the political institutions adopted by the 1990 Constitution to include the diverse socio-cultural groups. The impacts of these institutions is far reaching because they affect the people everyday and frequently. Thus, as long as the Constitution remains Hinduized, the disadvantaged socio-cultural groups would continue to face institutionalized inequality and exclusion.

The impacts of these institutions are further reinforced because the dominant group dominates the legislature, administration, judiciary, and other state agencies and influential societal positions. They interpret the Constitution articles and other laws based on their values and worldviews. They implement them, or not implement, based on their understanding. This often adds further biasness at the policy level where it directly affects people.

The Best or the Worst Constitution?

Despite the various articles that discriminate against and exclude a majority of the population, the 1990 Constitution has not been amended a single time. On the other hand, as discussed earlier, some people still claim that 1990 Nepali Constitution is one of the best in the world, even though the number appears to be declining with the passage of years.

There is no debate that the 1990 Constitution is far better than the undemocratic Panchayat Constitution in most respects. A few of its articles have even paid lip service to multiculturalism. It has provided considerable rights of association and freedom, which the marginalized socio-cultural groups have utilized to articulate their demands and mobilize for them. However, we should take note of two things. First, do the positive aspects of the Constitution, such as the guarantee of political rights and civil liberties provide equal rights to members of the dominant group and marginalized socio-cultural groups? Second, a democratic Constitution should be compared with other democratic Constitutions and not with undemocratic Constitutions. Only then can it be properly evaluated in terms of its democratic depth and breadth. In the following section, I will demonstrate the failure of even the positive elements of the Constitution in providing equal rights to the marginalized socio-cultural groups.

Unequal Affects of the Positive Articles

In the previous section, we saw that despite some positive provisions in the Constitution, it was responsible for the exclusion of madhesi, dalit, indigenous nationalities, and women who are collectively around 85 percent of the population. We discussed how the state institutions adopted by the Constitution have failed to include the marginalized social-groups (in chapters 8 and 9 we will also see how the state institutions, such as the unitary state structure and FPTP, are also responsible for the exclusion). We further showed that though some articles the Constitution declare that they are against discrimination based on religion, race, sex, caste, tribe etc., other articles discriminate against marginalized socio-cultural groups on the same grounds. In this section, I will demonstrate that even the positive elements of the Constitution like the guarantee of human rights, political rights, and civil liberties have not been able to guarantee equal rights between members of the dominant group and other groups.

The positive articles of the Constitution have not been able to lessen the discrimination and exclusion because other articles of the Constitution negate them with respect to the marginalized groups. For instance, the guarantee of human rights in the preamble has not prevented the laws of the land for jailing members of the marginalized socio-cultural groups from being jailed for 12 years on charges of killing cows, the deity of the dominant group but traditional food of the indigenous nationalities, Muslim, Christian, and some dalit (Ministry of Law and Justice 2054 v.s.). Likewise, the Constitution guarantees fundamental political rights but the rights are meaningless to ethnic/caste groups who are denied registration of ethnic/caste/community based political parties, which can contribute in articulating and aggregating the concerns and needs of their groups. Similarly, the Constitution guarantees civil liberties but, as discussed earlier, the Constitution itself treats socio-cultural group unequally be declaring the state as Hindu and facilitating linguistic and cultural discrimination. In similar vein, the Constitution has declared sovereignty to the people but it has not made the ethnic groups sovereign by providing autonomy. Instead, by adopting state institutions that favor the dominant group such as the unitary state structure, it has facilitated the ignorance of their voice and their right to self govern. The provision of judicial review has been hailed as a positive aspect of the Constitution as well but in Nepal it has become an instrument of discrimination against the marginalized socio-cultural groups: the Supreme Court has ruled against dual language policy of local governments, Public Service Commission’s decision to dump Khas-Nepali as a subject in its examination, and distribution of citizenship certificates to Nepalis who did not have them (more details in chapter 10). Even the direction to the Parliament to legislate gender related laws was vague in terms of what they were supposed to achieve, resulting into long discussions that went on for several years and produced legislation that did not ensure gender equality. All these ruling’s have hurt the aspirations of the marginalized socio-cultural groups. Likewise, Nepal has endorsed many international human rights instruments and treaties but has disregarded them in various Constitution articles. For instance, despite Nepal’s endorsement of the Convention for Eliminating Discrimination Against Women (CEDAW), more than a hundred discriminatory Constitution articles and laws discriminate against women in Nepal (FWLD 2000).

These examples clearly show that even the positive elements of the Constitution have failed to treat members of the dominant group and marginalized socio-cultural groups equally. The positive elements of the Constitution have not been able to protect the rights of the marginalized socio-cultural groups nor have they been able to compensate for the consequences of other discriminating provisions. The positive articles of the Constitution may be providing full formal guarantees to the dominant group members but they are not doing that to the members of the marginalized socio-cultural groups. Thus, many of the positive aspects of the Constitution are meaningless to the marginalized groups. These positive elements of the Constitution have ironically hurt the interests of the marginalized socio-cultural groups by presenting a deceptive façade of equality and rights to rest of the world. They have deceived many people into thinking that the 1990 Constitution is what it never was. The method of parading positive façade in the front while hiding the dagger to stab in the back is a typical dominant group operating style in Nepal: the practice of chiplo kura garnu (slippery talk). The 1990 Constitution is another modern day successful example of that practice.

If Nepal were a homogenous and genderless society, the Constitution might not have been problematic. However, for a multicultural society, it is perhaps one of the worst democratic Constitution because it discriminates against the rights of socio-cultural groups, who are collectively nearly 85 percent of the population, in fundamental aspects such as citizenship, civil liberties, political rights, culture, language, religion, and so forth.

Since the positive aspects of the Constitution have protected the formal rights of the dominant group males, the 1990 Nepali Constitution can be one of the best in the world for the CHHEM (15 percent of the population), if it is not problematic to them ideologically. It not only guarantees their political, civil, and cultural rights but also facilitates their continued domination in the polity and society! It is no surprise that the people who laud the Constitution are mostly male Bahun. For the remaining 85 percent of the population, on the other hand, the Constitution has become a hindrance to their aspiration for inclusion, equality, and justice.

The problem of the Constitution is not limited to the marginalized socio-cultural groups, however. In the following sections, I will demonstrate the additional shortcomings of the 1990 Constitution and argue that the Constitution and the institutions it has adopted are the underlying cause behind some of the major problems faced by the country, such as the Maoist insurgency, prevalence of corruption, the lack of consolidation of democracy, etc.

The Lack of Democratic Consolidation, Instability, and Threat to Unity

In addition to the exclusion, the majoritarian institutions have caused several other negative consequences. One, it has contributed in hindering the consolidation of democracy. Scholars have shown that the lack of congruence between societal culture and conditions and democratic structures can lead to instability (Almond and Verba 1963). The lack of congruence between the cultural and geographic diversity of the country and the majoriatrian institutions that concentrate power (within a region and socio-cultural group) is an important factor for the lack of consolidation of democracy in Nepal. Democracy cannot consolidate in multicultural societies without power sharing and accommodation among different groups.

Two, the majoritarian institutions may contribute in generating violence and instability. As social forces mobilize, if the political institutions are slow to develop to institutionalize the changes, then violence and instability are likely to follow (Huntington 1968). The irony of the 1990 Constitution is that it gave considerable freedom to the marginalized socio-cultural groups to organize and mobilize but failed to accommodate their aspirations rising out of it. According to Huntington, such a scenario contributes toward political instability and disorder because the political institutions are not capable to institutionalize the social forces. We see such a trend in Nepal. The marginalized socio-cultural groups have mobilized considerably but the majoritarian political institutions are incapable to accommodate them.

In fact, the majoritarian political institutions adopted by the 1990 Constitution may be even exacerbating the problems by pushing the country toward violence. Scholars have found that violent conflicts occur more often in states that have adopted majoritarian institutions, such as the FPTP electoral system and unitary state (these findings will be discussed in more detail in chapter 8 and 9). As the political institutions adopted by Nepal are more majoritarian than those found in majoritarian prototypes (UK, New Zealand, Botswana), the Nepali institutions, in fact, maybe pushing the country toward violent conflicts. The Maoist insurgency and Khambuwan National Front (KNF) insurgency are evidence as well as warning signs of other possible violent conflicts.

Three, the continued exclusion of the socio-cultural groups is a potential threat to the stability and unity of the country. If the exclusion continues, some of the groups might take more extreme positions. They may no longer feel bound to abide by the collective decisions and rules that they perceive as one sided. If the excluded groups perceive that without having a state of their own, they will not get their rights, they may even look at options beyond the existing nation-state. As of now, even the so-called ‘extremist’ groups have not demanded secession. But, if the problems continue, one cannot deny the possibility that some groups might do so. Such movements, even if unsuccessful, may generate more violence and the country may incur heavy cost.

The Constitution, Over Centralization, and the Crises of Governance

In addition to the above-mentioned problems, the 1990 constitution is also the foundation of the crises of governance in Nepal. The unchecked power abuse, widespread corruption, frequent government changes, and the growth of the Maoist insurgency are some manifestations of the crises of governance. The cause for the crises of governance is the over centralization of power in one branch of the government: the executive.

Democratization scholars have observed that new democracies often lapse into the un-rule of law because the executive undermines the power of other state agencies such as the legislature, judiciary, and constitutional bodies and concentrates most of the power onto itself. O’Donnell (1996) has called this phenomenon as delegative democracy, which occurs when elected executives (President or Prime minister) concentrate power in the executive arguing that the people have delegated them the authority to rule with their wisdom. They see themselves less as representative of the people, who have to assuage the mass opinion regularly. Once power is concentrated in the executive, they rule without being restrained by other agencies, resulting into massive abuse of power. The problem in Nepal is that the Constitution itself has concentrated excessive power to the executive, facilitating extreme power abuse.

The concentration of power in Nepal is very high. In fact, Nepal is much more majoritarian (power concentrating) than the majoritarian prototypes like the UK, New Zealand, and Botswana. The over concentration of power is due to the unitary state (and non-sharing of power with the regions), concentration power in one branch of the government (executive), weak central institutions (except the cabinet), and the absence of effective horizontal accountability mechanism at the center that can restrain power abuse. The executive at the center wields most of this concentrated state power.

The Constitution declares the people as sovereign but it does not devolve power to empower and involve them in the governance. All the power that affects people regularly (policy making and administration) is concentrated in the executive so that even the Parliament is weak. It does not have much effective role beyond electing the Prime minister. Parliaments in many parliamentary democracies, on the other hand, are strong. In those countries the involvement of the parliamentary committees in formulating legislation is extensive. Some of the Parliaments are very powerful: Belgium has a rough balance of power between the cabinet and the Parliament (Lijphart 1999: 127) while the German Parliament is considered very powerful (Schmidt 2003). The role of the Parliament would have increased in Nepal if the legislature was entrusted with real legislative power, beyond discussing and voting on what the government introduces. According to the 1990 Constitution, only the government side can introduce legislation with budgetary provisions. This provision has effectively constrained the Parliamentarians from introducing legislation because most legislation intended to affect the people is bound to include budget. Even the few private bills (non-government side) that were initiated were rejected without even proper discussion (Shakya 1995; Uprety, Shrestha, and Thapa 1997). The Nepali Parliament is also weak because it mostly worked as a reviewing body rather than initiator of legislation (Shakya 1995). On the other hand, even in that aspect it has not performed well because the government pushes the legislation hurriedly giving insufficient time for discussion (Baral 1998).

The judiciary is powerful but it cannot constrain power use and abuse by the executive in everyday policy and administrative matters because its scopes do not cover them. It can influence the actions of the executive only in constitutional matters and only when they are brought to its attention. These are rare events. On the other hand, the executive in Nepal can influence the judiciary because the executive has discretion over the judiciary’s budget and personnel. Thus, even the powerful judiciary does not undermine the executive’s power whereas the executive has become even more powerful because it can influence the powerful judiciary.

The over centralization has led to two types of consequences. First, the extreme level of power concentration has led to extreme level of power abuse. After all, absolute power corrupts absolutely. The Constitution has facilitated power abuse by centralizing the state power in the executive. If the state power had been divided, diffused, and shared among various political agencies and different levels of governments and their branches, check and balance among them would have reduced the outright power abuse to a considerable degree. The widespread power abuse, on the other hand, is the underlying reason behind the crises of governance. I will elaborate on how over centralization of power is connected to the governance crises in the next section.

Second, the over centralization of power in the cabinet has led to undemocratic intervention or such attempts in the country. Huntington (1968) argued that polities are more stable if the political institutions are complex, meaning that a number of strong institutions are needed in any country. If only one institution is made powerful, when it does not deliver, the country may face a crisis and it may lead to interventions by extra-constitutional forces to address that crises. Huntington cites the example of France. During the 1950s an extra-constitutional force, the military, intervened in France when the only powerful political institution, the assembly, failed to handle the crises arising out of the dissolution of the French empire and other strong institutions did not exist to address it when the assembly failed.

In Nepal, similarly, the over centralization of power in the cabinet has invited interventions of extra-constitutional forces. Since only the central executive has been given the power of introducing important policies and legislation in Nepal, when it failed to deliver, no other institutions addressed those issues because they do not have the authority. The problem becomes more apparent if we present it from a counter factual angle. If the Parliament had been made strong in Nepal or powerful regional governments existed, they may have come up with legislation and policies that might have addressed some of the problems facing the country that the executive did not or could not address. In such a scenario, even if the executive had failed, we might have seen some positive initiatives and policies. It would have reduced alienation and frustration among the people and perhaps would have lowered the attraction toward the extra-constitutional forces: the Maoist insurgency and the active Monarchy. One can argue plausibly that the King may not have felt the need to intervene on October 4, 2002 if things were working better in the country. Even if the King had intervened, he may not have received the considerable support he received from the non-political party sector during the intervention.

Over Centralization, Power Abuse, and Widespread Corruption

One manifestation of power abuse has been the politicization of the administrative organs like the bureaucracy and the police. The ruling parties filled administrative posts with loyalists, party cadres, relatives, caste members, and ideologically compatible persons, and used them for partisan purposes. Such actions have undermined the autonomy and professionalism of the agencies. They have become inefficient, unmotivated, and have failed in performing their duties. Nepotism and clientelism has helped to further power abuse and corruption as relatives protect, overlook, or not take actions against the unethical activities of their brethrens. If the bureaucracy and the police had been made more autonomous, the politicization of the administration would have been much less.

Power abuse has also undermined the rule of law and democratic institutions like elections. The two local elections demonstrate how state power and resources have been abused to influence the election results in favor of the ruling parties. In both the local elections, the party that controlled the government obtained landslide majorities. There is consensus among political observers and even politicians that election are unethically influenced by those who can in the areas of their influence. The ruling party can do so more because it can abuse the state machinery and resources. The extreme desire of the political parties and leaders to conduct the elections while they are in the government, as evidenced by the frequent dissolution of the HOR to hold snap polls, implicitly acknowledges the advantages of being in power during elections. The general elections are also affected by the abuse of state but the impacts are less than in the local elections because the administration does not act as openly and aggressively in partisan manner due to the less certainty of the future government.

The undermining of the democratic elections has broken down the vertical accountability mechanism, the main function of periodic elections. As muscle (largely abuse of state administration) and money power have begun to affect elections, politicians have begun to rely on them more. It has decreased the role of the people in the elections. On the other hand, the abuse of state institutions for partisan purposes and personal aggrandizement has weakened the capabilities of the state institutions. The undermining of democratic norms and state institutions by the executive became possible to a large degree because the Constitution has concentrated most of the state power in it while horizontal accountability mechanisms are weak. Horizontal accountability is necessary so that public officials are held accountable in between the elections. Independent central agencies are established to perform this duty. They check each other as well as the cabinet, thus the term horizontal accountability. Horizontal accountability mechanism is weak in Nepal because the central agencies such as the Election Commission and the Commission for Investigation of Abuse of Authority (CIAA) were made dependent upon the cabinet. Since, the cabinet can influence the nomination of commissioners and funding and staffing of these agencies, the constitutional agencies may not be in positions to check the power abuse of the cabinet. The increase in power abuse due to the lack of horizontal accountability can be illustrated with the case of the weak CIAA.

In addition to the concentration of power that facilitated corruption, a weak and not independent CIAA was another reason for the wide spread of corruption. In the absence of actions against corruption, it grew widely. In countries with successful corruption drives, the anti corruption agencies are independent and strong (Klitgaard 1988). In Nepal, since the cabinet plays an influential part in the nomination of the commissioners, the commissioners for a long period did not act effectively against their powerful but corrupt benefactors. As the nomination process is a closed door and does not require approval by the Parliament, as in the US where the Senate has to approve the president’ nominee in an open hearing, the cabinet often nominated people who were loyal or amenable to it. Further, in the absence of oversight provisions, no institution monitored or held the commission accountable for its actions or the lack of it. In the US, the congressional committees have oversight responsibilities over central agencies like the CIAA. They ensure that the central agencies perform their duties. An absence of an oversight body in Nepal resulted into a long period of inaction by the agency that went unaccounted. The inaction toward corrupt activities fuelled the perception that as long as one made the power wielders happy (by sharing corrupt bounty or in other ways), actions against corruption may not be forthcoming. Corruption skyrocketed.

Some might argue that the CIAA has been made strong in 2002 and it has acted against the politicians, and thus the Constitution need not have made the CIAA strong; the cabinet could have done it earlier if it wanted. This defense of the Constitution has a number of holes. First, under normal circumstances the power elite may not make laws (strengthen CIAA in this case) that may act against them. It is widely believed that the 2002 bill that strengthened the CIAA was brought under the donors’ pressures. Second, if the CIAA had been made strong and independent in the Constitution itself, then corruption may not have grown to such a level. Actions against corruption would have, in all likelihood, carried out more effectively earlier. It is fair to assume that such actions would have discouraged the growth of corruption. Third, the CIAA and other constitutional commissions (such as the Election Commission) are still not functionally independent and no institution other than the executive oversees their activities. The allegation that the agency works in the interests of the power wielders would carry less weight if it were made more independent. Fourth, any agent (the Constitution in this case) cannot escape the blame by saying that others can address the problem. This is more so with the Constitution, which is the basic document that lays guidelines for political norms and behaviors. Thus, it is safe to say that the creation of a weak and executive dependent anti-corruption agency by the Constitution facilitated the widespread growth of corruption.

The Absence of Power Sharing Mechanism and the Governmental Instability

The 1990 Constitution has not given any significant power to the opposition in the Parliament. On the other hand, as discussed earlier, opposition parties have a significant role in governance through legislation in countries like Germany and Belgium. Further, in established democracies, even in majoritarian countries like the UK, the opposition and others can access and influence the governments through media, corporative mechanisms, and lobbying.

The opposition is powerless in Nepal because, as discussed earlier, only the government can introduce legislation with budgetary provisions. The Parliamentary committees are powerless as well. The role of the opposition is thus limited to raising issues when the Parliament is in session. The ruling party often ignores them because of the political culture that mistakenly assumes that the majority has the mandate to do what it wants. This notion has led the ruling party to introduce policies and legislation without much regard to opposition’s views. Often, they have even broken democratic norms for partisan interests. Further, the ruling party often uses the administration to harass the opposition in the districts, distributes perks and resources to its supporters and cadres, and encourages defection from opposition parties by dangling carrots at them.

Here it should be noted that a popular misconception about democracy, that the majority’s job is to rule and the opposition’s job is to oppose is entirely not correct. Majoritarian democracies like the UK have such characteristics but consensus and power sharing democracies do not have such systems. Many countries have frequent coalitions cabinets where many parties share power. As an oversized cabinet is more durable, many of the coalitions include more parties than necessary to form majorities. Switzerland, Italy, Belgium, Papua New Guinea, Israel, Finland, Mauritius, Netherlands, Denmark, Germany, and Belgium have frequent coalitions (Lijphart 1999: 110-111). No effective parliamentary opposition existed in some of these countries for long periods. In such countries democracy flourished without strong parliamentary opposition.

The lack of power to the opposition has created an awkward position for them in Nepal. They have no power to contribute constructively (through the introduction of legislation, for instance) and they cannot do much while the ruling party abuses power to consolidate its position. The lack of power with it and the abuse of the administration for partisan purposes by the ruling party have created desperation in the opposition parties. It has often led to two types of activities by the opposition. One, the opposition frequently resorts to the street as it is often the only way through which it can hope to make the government listen to it in important policy matters. The forced closures of educational institutions, roads, markets, towns, and the whole country have become regular scenarios. Two, the extreme level of power imbalances has created a situation whereby the opposition often goes to any length in toppling the government, if it can, while the ruling party, knowing the advantages of being in power, also goes to any length to stay in power. Both sides have resorted to naked unethical practices such as bribing Parliamentarians or hiding them during vote of confidence motions. The consequence of the power at any cost culture was observed during the hung Parliament of 1994-1999. In five years, there were 7 cabinets because the opposition wanted to topple the government at any cost and they often relied on unethical means for the purpose. The hung Parliament provided a condition for frequent changes of governments but hung Parliaments have not necessarily resulted into frequent government changes in other countries, as in Nepal. The power hunger or desperation for power among political parties and leadership played a very significant role for the frequent government changes. As discussed earlier, hung Parliament is not an aberration in democracies and stable coalitions have been formed in many countries. The frequent government changes in Nepal, thus, are the result of desperation for power among the political leadership.

Here, it should be noted that Nepal is bound to encounter frequent hung Parliament in the future because of ideological and cultural diversity of the country. Up to now, the cultural diversity has not impacted the party system very much but it is bound to have more impact in the future, as the excluded socio-cultural groups get more organized and mobilized. Even if we disregard the impact of the cultural diversity for the time being, if Nepal were to conduct a general election in the near future that is acceptable to the major political forces, Nepal would have at least four major political parties: NC, CPN-UML, RPP, and CPN-Maoist. The presence of the four parties would lead to frequent hung Parliament for some time to come. However, the current political structures and institutions are not designed to tackle hung Parliament. They are designed keeping in mind a ruling majority party and a strong opposition. The ground reality and the designed institutions are incongruent. Thus, the institutional mechanisms adopted by the 1990 Constitution are not going to contribute toward fostering governmental stability in the country. A more balance of power between the Parliament and the executive and other appropriate institutional mechanisms may help reduce instability, even in the case of a hung Parliament.

If the oppositions had significant role in the Parliament, the do or die situation for forming a government would not have evolved to such a high level in Nepal. They would have become engaged in positive activities, such as formulating legislation. It would have given them less time and reasons to protest in the streets and less reason for employing unethical means to topple the government. The government side would also not have used all legal and illegal resources at its disposal to remain in power because being in the opposition would not have looked that bleak. Thus, a more balanced power distribution between the executive and the Parliament would have discouraged the political parties to take extreme steps for getting power and keeping it, in all likelihood reducing the governmental instability to some degree.

The Centralized Polity and the Growth of the Maoist Insurgency

The Constitution also facilitated the initiation and growth of the Maoist insurgency by creating an extremely centralized state. Specifically, the centralized polity contributed in alienating the people and facilitated the abuse of administration by the central ruling party for partisan purposes that manifested into the political repression of the Maoists, which contributed in pushing them to the jungles.

The repression faced by the Maoists in Rolpa, Rukum, and elsewhere contributed in pushing them to the insurgency, as discussed in detail in chapter 2. The centralization of the state facilitated the repression as the local administration in the districts, under the direction of the center, took the side of the NC in the local political conflicts involving the NC and the Maoists. Many Maoists cadres went underground as the administration began to imprison and torture them. Eventually, they initiated the insurgency from the region. If the local administration had been under the local governments, the severe repression against the Maoists may not have occurred, simply because the Maoist controlled some of the district and local governments. Once, the insurgency began, the Maoists received widespread support from the alienated people.

The centralization alienated the people in several ways. First, the centralization contributed toward the powerlessness of the state institutions, especially the local governments and agencies, as they had to depend for budget, manpower, and programs to the central agencies. In the Indian context, Atul Kohli (1994) has observed that centralization increased personal power of the leaders but led to overall powerlessness because the centralization decreased the institutions’ capabilities. In the absence of capable institutions, the leaders could not push through their policies, increasing the powerlessness. In Nepal, the result of centralization was powerless local governments and administration. If the local bodies had been empowered through devolution, in all likelihood, they would have initiated more development projects and served the rural people more effectively and could have contributed in lessening people’s alienation.

Powerful local bodies probably would have been more effective in resisting the Maoists as well. For instance, if the local administration had been under the elected regional/district/local governments, the administration would have received more support from political parties and cadres, at least from the local ruling party, if not from others. As of now, the local administration receive little support from the local population, as evidenced by the absence of prior information to the administration of the impending raids on the district headquarters by large groups of Maoists, whose presence would have been conspicuous in the sparsely populated hills (Lawoti 2001c). The absence of viable local government bodies (due to lack of power) made it easy for the Maoist to attract the rural people and subsequently capture and control the rural areas (Lawoti Forthcoming b).

Second, extreme centralization alienated the rural people from the state because the centrally deputed administrators, being accountable to the center, were less sensitive to the needs and aspirations of the rural people. The local people may not have become so alienated if the local administration and police had been under the local/regional governments because that might have produced more responsive administration. The centralization further alienated the people by dismantling the traditional norms and institutions that were means of self-governance of the rural communities but did not provide new ones in their place that could address their problems, needs, and aspirations. The abuse of power, widespread corruption, and other governance crises discussed earlier that were facilitated considerably by the centralization of power further alienated the people. Likewise, ethnic/caste centralization of the state and continuation of cultural and gender discrimination alienated the indigenous nationalities, dalit, and women. These various factors played out and contributed in the initiation and the growth of the insurgency because the Constitution did not share and divide power among different level of governments, different branches of government, and social forces. Instead, it concentrated the political power in one branch of the government in the center, which was dominated by one ethnic/caste group.

Summing Up

An evaluation of the 1990 Nepali Constitution in a broader perspective has exposed its discriminating articles and exclusionary role. We also saw how the political institutions it adopted cannot include the socio-cultural groups. In fact, some of them are responsible for exclusion. This chapter has also shown how the progressive elements of the Constitution, like the guarantee of human rights, are not able to safeguard the rights of marginalized socio-cultural groups in different realms. The 1990 Constitution made a fundamental mistake of adopting political institutions that are not compatible in a multicultural society. Hence, the institutions discriminate against and contribute in excluding nearly 85 percent of the country’s population.

Further, we also saw how the Constitution is responsible for the crises of governance in the country. The Constitution did not empower people, contributed in the initiation and the growth of the Maoist insurgency, facilitated governmental instability, and fostered widespread corruption. A Constitution that excludes 85 percent of the people and which has contributed in the crises of governance cannot be one of the best in the world. However, some people still make the claim. Why do they insist on it? Why is there such a totally different positions? Which claim is more plausible?

Both the positions have elements of truth in them, depending upon to which group the Constitution is applicable. The 1990 Constitution can be one of the best Constitutions for members of CHHEM because it permits them to continue their superior position in the society and polity. In fact, the democracy label attached to the Constitution legitimizes their dominant position. Therefore, when the CHHEM members claim that the 1990 Constitution is one of the best in the world, they are in effect saying that it is the best for them. On the other hand, for the huge majority of people, the 1990 Constitution, which is responsible for their exclusion from the polity and has helped to make their life more miserable by contributing in the governance crises, may be one of the worst democratic Constitutions in the world.

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Women Rule The Roost Democracy is incompatible with the concentration of power

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