Mainstream political parties seem to be ready to amend the Constitution of the Kingdom of Nepal 1990 purportedly to resolve the present crisis in Nepal. Article 116 (1) and (2) of the constitution clearly stipulates that the Parliament can, by two-thirds majority, amend or repeal any article of the constitution without prejudicing the spirit of the preamble of the Constitution. Despite the state of emergency in the country, civic society consisting mainly of the indigenous people/nationalities (Aadivasi/Janajati), Dalits and women are demanding that their issues be incorporated in the constitutional amendment in order to secure their rights.

The constitution defines Nepal as a multi-lingual and multi-ethnic country. However, it does not reflect the reality of the country in terms of religion rather it describes the country as a Hindu state. In fact, Nepal’s population is composed of many religions: Hindu, Buddhist, Kirat, Christians, Muslim and others. This shows that the constitution does not represent the religious feelings and sentiments of the people as a whole.

Despite the recognition of Nepal as multi-ethnic and multi-lingual country, the articles of the constitution are found to be either restrictive or insufficient to secure the social, political, cultural, linguistic and economic rights of Aadivasi/Janajati. It seems the provision of the Constitution are not derived from the spirit of multi-ethnic and multi-lingual characteristics of the country. For instance, article 18(2) states,” Each community shall have the right to operate schools up to primary level in its own mother tongue for imparting education to its children.” Why only up to primary level? This provision does not fulfill the desire of Aadivasi/Janajati. In other words, one can deduce that the constitution considers the diversity a threat to the communal harmony and factors to the territorial disintegration rather than the source of unity in diversity.

Aadivasi/Janajati Issues

The government of Nepal has identified 59 ethnic groups as Aadivasi/Janajati in Nepal on the basis of their distinct languages, culture and oral or written history. According to the national census 1991, the population of the Aadivasi/Janajati constitutes 34.6 per cent of the country’s total population.
Forty-five out of 59 Aadivasi/ Janajati groups have been able to establish their own organisations with the objective of preserving and promoting their respective culture, language and uplifting the socio-economic condition of their people. There is an umbrella organisation of the Aadivasi/Janajati organisations known as Nepal Federation of Nationalities (NEFEN). It is established with a view to advocating common issues of Aadivasi/Janajati of Nepal. Like other common issues of Aadivasi/Janajati NEFEN has taken initiatives to raise the issues of Aadivasi/Janajati so that they can be addressed while amending the constitution.

NEFEN has identified 18 most important issues of Aadivasi/Janajati, which need to be seriously taken care of during a constitutional amendment. These issues range from cultural rights to political rights. Broadly speaking, these issues can be put mainly into four categories.

First, the state should be declared secular state. This is not a new issue introduced by the Aadivasi/Janajati. The voice of secular state was also raised while the present democratic constitution was drafted in 1990. Nepalese society is diverse not only in terms of ethnicity and language but also from religious and cultural viewpoints. It is a well-known fact that there are Hindus, Buddhists, Kirats, Muslims, Christians and others. Someone may argue that what difference would it make to people of other faith if Nepal were a Hindu state? Indeed, it does make a difference in two ways. On the one hand, it hurts the sentiments of other religious communities in the country, while on the other it allows the state to be involved in promoting Hindu religion at the cost other religious communities. The democratic state has a responsibility to treat all the religious communities on equal footing. It is also unfair and undemocratic to spend taxpayers’ money to promote a particular religion.

Second, Aadivasi/Janajati have been advocating the issue of equal treatment of all languages spoken in the country. They are strongly against the constitutional provision that differentiates Nepali language from other mother tongues stating that the former is called the ‘language of the nation’ and the latter ‘national language’. It is obvious that the Nepali language has played an important role for a common mode of communication among different ethnic groups of Nepal as a lingua franca. However, it does not mean that it should be placed in a position superior to other mother tongues by even coining a new term ‘national language’. It is also important to note here that these provisions provided basic grounds to the Supreme Court to deter the use of the Newari language in Kathmandu Metropolitan City and the Maithili language (national language) in Rajbiraj Municipality and Danusha District Committee as official languages in addition to the Nepali language.

The three local governments decided to use the languages according to the Local Self-governance Act 2055. The decision was legally challenged at the Supreme Court, which later gave its verdict against the use of national languages: Newari and Maithili as official languages besides the Nepali language declaring that the use of national language as official language was unconstitutional and illegal. The Court verdict further reinforces the demand that a provision relating to the use of national language as an official language besides the Nepali language be incorporated if and when the constitution is amended.

Third, the reservation provision should be guaranteed for indigenous Aadivasi/Janajati and Dalits to increase their involvement in employment, education and health sectors. Aadivasi/Janajatis do not have access to opportunity in the field of employment, education and health. For instance, facts and figures show that more than 92 percent government jobs are still held by upper caste: Bahuns and Chhetris. The absence of  Aadivasi/Janajati in government jobs is due to age-long historical discrimination, exploitation and suppression. The reservation, in the sense of positive discrimination, for the time being should be adopted temporarily to correct and compensate the historical discrimination and deprivation. The Aadivasi/Janajati must be given time and opportunity to enable them to rise to the standard whereby they can compete on fair grounds. In similar fashion, the reservation provision must be applied to education and other fields as well.

Finally, Aadivasi/Janajati have observed that their representation in the decision making level is very poor. They are still unable to participate in making decisions for their own future. They do not even have the right to decide on matters of their own concern: culture, language and policy for their own development. It is ironic to say that somebody else decides what is good and what is bad for them. To avoid this situation, they have raised the issue of converting the present National Assembly (Upper House of Parliament) into an Assembly of Nationalities. The proposal is that the Assembly of Nationalities which is to be composed of representatives from all marginalised, Aadivasi/Janajati, linguistic and religious minorities should have a role in decision making regarding incorporation of basic social, economic, political and cultural norms and values of Nepal in making laws and legislation.
In addition, indigenous/nationalities have included the issues of women to be addressed in the amended constitutional. One such example is the issue in which the constitution prevents a man of foreign nationality from acquiring Nepali citizenship even if he is married to a Nepali citizen. Indigenous/nationalities have demanded that: “ A foreign man who marries a Nepali woman should be allowed to acquire Nepali citizenship.”

Response of Political Parties

Democracy places people at the centre of its principle. The present constitution stipulates that the source of sovereign authority of the independent and sovereign Nepal is inherent in the people. However, political parties in Nepal do not pay attention to developing mechanism to convert the spirit of democracy into reality. Our democratic system has been adequately responsive to the voices of the people. Due to this weakness political parties have failed to respond to the issues of Aadivasi/Janajati in the process of constitutional amendment.

All the political parties, ruling or opposition, big or small, are in favour a constitutional amendment and they have also made public their agenda for this purpose. However, none of the political parties have incorporated the issues of Aadivasi/Janajatis in their agenda. It is quite obvious that they have developed the agenda placing power politics at the centre. They are not serious even about addressing the socio-economic problem facing the country today.

Will an amendment incorporate Janajati issue?

The agenda of political parties clearly indicate that there is no chance to amend or repeal the articles of the constitution in favour of the Aadivasi/Janajatis. It is obvious that political parties come to power simply to exercise power for their own benefit.
Needless to say, the political parties have authority to amend the constitution. However, Aadibasi/Janajatis are also responsible for advocating their issues strongly. They need to be empowered and there is an urgent need to change their advocacy strategies. Now taking into consideration the attitude of the political parties towards the issues of Aadivasi/Janajati pertaining to constitutional amendment, it can be said that the question of whether the constitutional amendment will incorporate Aadivasi/Janajati issue or not depends on how strongly the Aadivasi/Janajatis can advocate their cause and lobby. At the same time it is equally important that mainstream political parties positively respond to the voices of Aadivasi/Janajati. This will only ensure the consolidation of multiparty democracy by strengthening unity in diversity.
(Arjun Limbu is General Secretary of Kirat Yakthung Chumlung (KYC), one of the MS partners)