Nation Building, Sub-Cultures and Constitutionalism: Nepal's Case

Bipin Adhikari
Journal of Behavioral and Social Sciences
Research Institute of Social Sciences, Tokai University
Vol 1997, No 1 (at 37-54)

1. Introduction
Nepal is a land of ancient people with Aryan and Mongoloid, and in some cases, mixed features. It is as big as North Carolina and has the natural beauty of Switzerland. The country is largely mountainous terrain extending east-west, and wedged between the Gangetic plains of North India and the high Tibetan plateau within modern China. A complex network of high current Himalayan rivers flowing from the north down to the South, a tough geographical and climatic reality, rich forests, carnivorous animals, a difficult transportation system, a life of hardship and struggle, and many petty principalities quarreling with each other in the process of internal colonization divided the country and its national society and culture. In such a situation, the division of the land by deep rivers and impenetrable forests fostered a spirit of isolation and divergences between these principalities were accentuated by the definite variety of the conditions.

Despite this variegated conglomeration of races, castes and creeds, a deep unity among the people of the Nepal Himalayas existed. Different religions and their followers, especially the sages and saints, the kings of various dynasties who ruled the country in different periods and the missionaries and pilgrims-greatly fostered fundamental unity and created an exceptionally congenial environment for the growth of uniform civilization.[Pandey: 1989, 152] The unifying factors in such terrible conditions were the requirements for interdependence to make society sustainable and the ethical elements of Hindu and Buddhist tradition, and a host of sub-cultures which existed under their broad-based tutelage.

2. Development of a Mainstream Culture
Against this background, the Great Hindu King Prithvi Narayan Shaha of Gorkha, one of the many of the petty principalities of the then Nepal, unified the country during the second half of the eighteenth century. The unification process itself did not proceed from a common political consciousness amongst different ethnic groups, but essentially manifested the thrust on the part of the king to unify and preserve the Nepalese hills amidst the threats of the expansionist policies pursued by British-India to the south and the Chinese in the north.

The unified Nepal was ruled by the Hindu monarch Prithvi Narayan Shaha and his successors on the basis of the common law based on local traditions and usages, the dictates of Hindu scriptures widely recognized in Nepal for centuries and royal decrees in situations where there was no defined rule of law. The political-legal system was largely characterized by the prevalence of the concept of co-ownership and the intermixture of the personal and proprietary rights; the preference to public duties; the importance of the family; and the growth of the law through fiction. The regal theories as established then did not view the king as either the source or repository of the law. He was under and subject to the law and failing to maintain it, was in some way diminished.

Checks on the king's power included religion, custom, pragmatism and natural justice. The society had a well organized system with a jurisprudential formulation of the king's relation to punishment, judgment on him who used punishment unjustly, an organized police force, a decentralized and renowned judicature, a detailed catalogue of punishments under four titles (admonition, reproof, fine, and corporeal) and the rules for the use of each. The concept of common law, equity and a structural division of the society based on caste had become the common property of Nepalese law by that time. The monarchical tradition of justice and fairness, the Hindu philosophy, a sense of security, and general efficiency of the administration provided the myths and symbols that could legitimize the state.

The essence of public welfare under the Hindu scriptures emphasized the obligation of the individual to the community and, through community, to the nation. As such, the Hindu king described his newly established empire as "the common-wealth of all flowers", whereby he meant all different peoples inhabiting the unified Nepal. His polity afforded love and opportunity to subcultures to participate in governance and they were given a strong sense of security through formal institutions and informal arrangements. The majority of society believed that the arrangements of the Gorkhali rulers facilitated the common cause and upliftment of all.

This may be described as the first move towards nation-building by creating an environment which recognized the perception of a group of people of a unique identity and culture, which they felt a need to preserve and develop. It is a strong historical phenomenon that the preoccupation with public welfare and nation-building in this sense has been intensified in western society only in periods when the established order of things was in danger of being overthrown. The Gorkha conquest, preservation of a traditional state, and the heritage of Hinduism, all combined, however, to offer this to Nepal more than two and a half centuries ago.

3. Process of Marginalization
Despite the divine ordeal of the founder king, the subsequent Gorkhali rulers of unified Nepal down to 1951 adopted assimilations policies, whether knowingly or unknowingly, which protected the language of Gorkhalis, the lingua franca, as the national language, their religion as state religion, their culture as the national culture, and their dress as the national dress. So much so that the bird they loved most, the color they liked most, the flower which they thought as most beautiful and the place in which they abounded were recognized gradually as state symbols. The process might be termed as the Gorkhanization of Nepal. Despite that the history of modern Nepal had no hard cases of confrontation with such assimilations policies till 1951. The ensuing factors cannot be ignored in the historical process.

The reasons behind this are enormously significant. The Gorkhalis represented the mainstream religion at a time when religion actually mattered. They had the system, values, norms and procedures which established their worth in the comity of vanquished principalities. Their language, festivals and rituals commanded national appeal due to their own intrinsic worth. They wore the dress wordy a majority of the people, the bird they loved was one of the most beautiful bird species of Nepalese hills, and the colors they liked most were adored and showed by many. They were brave, sturdy and cultured. Although the Gorkhalis never showed it, they were the victorious majority in the country. They could influence all the sub-cultures because they accepted them in their entirety. The process of Gorkhanization varied in degree ranging from an outward imitation of Gorkhali mannerism with some to seeking promotion into the caste order. It is due to this fact that tribe-caste distinction in Nepal seems even to this day less like a dichotomy and more like a continuum. [Sharma: 1978, 1-14]

The process of Gorkhanization was a process of modernization. The process could be worked out easily because most of the cultural practices of Nepal were essentially of a Hindu or Buddhist derivation. The Hindu majority never treated Buddhism as alien to them, because Buddha remained as one of the dignified gods in Hindu mythology. Both these religions, which generally shared each other's fundamentals and values, had their firm foothold in Nepal for centuries, and they did not see each other as the antagonist. In many instances, Buddhism and Hinduism have been fused in the Nepalese hills to a remarkable degree, even to this day, whereby their sectarian distinctiveness is often obscured [Sharma: 1989, 139-145]. There were some other sub-cultures which were different from Hindu, Buddhist cultural traits, but they were not decisive or strong enough to grow further. Most of these sub-cultures were interdependent with the major traditions and were not hostile to each other on the grounds of ethnic, cultural sub-cultural and other kinds of disparities, a phenomenon also common to India [Jain: 1996]. Due to the given nature of society, they too manifested in some forma or styles both these traditions, and with pride and plurality.

In this way these emerged what is typically known as Nepalese culture, giving greater familiarization and intimate social interaction between the Hindus and non-Hindus, the majority and the minority. The Gorkhanization process harmonized behavior and value patterns to the point of making rationalized interaction between various groups possible. One should recognize that some of the aspects of Gorkhanization might have been at variance with a modern outlook, but the experience and knowledge of the working of the Gorkhanization process were profitably applied to the task of modernization in the given situation. Gorkhanization was at that time essentially elevating and civilizing. So too was modernization. [Shaha, 1974]

4. Emergence of Minority Psyche
Despite the strength of these unifying factors, Nepalese society in the 1990s remains an ethnic mosaic and presents a cultural plurality and consciousness. The present population of Nepal, according to the 1991 census, is around 18 million. Some ethnic leaders, notwithstanding their meager influence, have started redefining the people of Nepal and have broadly classified them into Indo-Aryan, Mongoloid or the Tibeto-Burman subfamily, and the Austro-Asiatic branch. Voices are being heard to define some of the people as indigenous and others (particularly Gorkhalis) as immigrants of the medieval period; although except for some Indian and Tibetan immigrants in the last forty years, all Nepalese are indigenous and have been in this land since the time immemorial. The ethnic debate on who is an outsider and who is not remains a motivated debate without significant appeal to them for whom it is meant. An attempt is also being made to differentiate between Buddhists and Hindus, creating a psychological terror in the people who have an alternative history. Some Christians and Muslims are also propagating in favor of what they believe to be secularism. A negligible number of politicians of the southern plain of Nepal and of the eastern hills are being encouraged to raise regional slogans.

5. Major Ethnic Divides
In the light of the above, three main forms of ethnic divide deserve attention in Nepal. The first is between the Pahade (hill people) and the Madhise (plains people) based on regionalism and ethnicity. Madhise people think they are different from hill people. The second is the split between the high caste Hindu groups (particulary Hill Bahun, the Thakuri, the Chhetri and the Newar) and the tribal groups of Nepal. A few of the tribal leaders think that they were Gorkhanised in the past at the cost of their civilization but are able now to rise up with their sub-cultures. The third is split between Bahun and Newar groups, and the High caste Hindu groups and the law caste Hindu (untouchable) groups. [Dahal: 1945,] However this broad type of categorization is not as simple as it looks. There are altogether about 100 distinct ethnic\caste groups in modern Nepal. The census indicates that by religion Hindus make up 90 percent of the population, Buddhists 5.3 percent, Muslims 3 percent, and the rest, "others," or "unstated."
About 70 languages and dialects are spoken in Nepal. Nepali is the mother tongue of more than 50 percent of the people. Maithili (11.5%), Bhojpuri (7.5%), Tharu (5.4%), Tamang (4.5%), and Newari (3.7%) are other important languages. There are, moreover, 40 other languages whose speakers make up less than one percent of the total population in Nepal. [Dahal: 1995] Some investigators (who came here as casual visitors), have referred to the acute confrontation between Hindus and sub-cultures of tribal groups, [Capan: 1970] struggles between high caste Bahuns and untouchable groups [Caplan: 1972], regional conflicts between the Pahade and the Madhise, [Gaige: 1975] and inequality between high caste and non-caste ethnic groups. [Blaikie: 1980] The Gorkhali culture has also been claimed to have become fatal to modernization, and to have been widely propagated in order to detract people from Hinduism. [Bista: 1991] However, there has been no comprehensive study of the ethnic issues on the part of the government.

6. Ethnic Claims Questioned
Nepal's ethno politics is different from that of many other countries. First, Nepal has never been colonized by any other country throughout its history. Secondly, it is the only Hindu state in the world and gives constitutional protection to sub-cultures. Thirdly, it has ushered in a democratic era on a very fragile economic infrastructure. Fourthly, the geo-topographical compulsion insists that people remain united in their social cultural life, despite their particular sub-cultures. What is noteworthy in this broad cultural spectrum and multi-ethnic situation is that it is indeed a difficult task to demarcate a boundary between major and minor groups out of the 100 distinct ethnic\caste groups and about 50 languages out of an 18 million population. It is especially difficult when one finds that what is a majority from one perspective is a minority from another. For example, while tribal groups are dominant in the national army, the Bahun, Chhetri and Newar are in the majority in the civil service. While the Madhises are the largest landholders in the plains, the Pahades are a minority in this respect.

Furthermore, a very limited portion of the land can be demarcated on the basis of ethnic population distribution, and that, too, unrealistically. The picture of major\minor language groups,, however, is different if one sees the district-wise figures for different mother tongues. Similarly, the economic condition of the Nepalese people cannot be assessed on the basis of ethnic\caste category. Nepal is perhaps the only country in this region which has managed an encouraging level of ethnic representation in political institutions. Nepal's ethnic diversity is not only immensely rich, but also the 25 percent combined population of the tribal groups by comparison t that of the Hindus, is quite high. Above all, despite the formation of various ethnic and region-based political parties and organizations to advocate ethnic causes, they all are either breathing with difficulty or have stopped breathing. By and large, ethnic politics against this background is a non-peasant, urban phenomena with no significant valid claims and immediate threats to political stability and national integration. [Dahal: 1995] It is not implied here however, that ethnic issues are non-issues in Nepal.

7. Formulation of the New Constitution
Nepal's racial harmony and interaction between mainstream and subcultures remained in fact even after the revolution of 1951. It needs to be noted that Nepal experimented wits there constitutions until it had a fourth one in 1990. Ethnic issues were not raised in the country during the drafting of these first there Constitutions because no one thought of any grievances in terms of ethnicity or subcultures. At least, these grievances were not noticed in scale. No such issues which troubled America till the recent past [Fisher, 1990, 945-699] including issues like slavery and discrimination against blacks, sit-in and demonstration cases, controversy involving jury composition and death penalty, voting rights and reapportionment, civil war amendments, school desegregation, desegregation of public facilities, racial discrimination in housing, etc. could sprout in Nepal because the interim Constitution of 1951 promulgated after the revolution eradicated them at once. In fact, although there were some social vices in the pre-revolution era, these sorts of discriminatory practices did not, by and large, exist at that time. After the revolution, the caste system was abolished from the political-legal domain and the practice of untouchability was subjected to rigorous penalty.

With this change in the governmental elite, Nepal ushered in a policy of balanced regional development in terms of allocation of natural resources, decentralization of power, local autonomy and rearrangement of administrative units. As Nepal has never witnessed the interracial strife between regions, which has become one of the most serious political issues, for example, in South Korea, (Chung: 1996) there was no need to constitutionalism them under any pretext. With the mass movement of 1990, however and the constitutional change brought by it, ethnic concerns are being expressed in a country which had no precedents. Bewilderment by ethnic explosion and implosion has also been brought to notice by academicians. The new Nepalese Constitution promulgated in 1990 allegedly could not fulfill the aspirations of different ethnic groups. While various anxieties are there amongst ethnic groups there are also some challenges on the legitimacy of the Constitution. K.B. Bhattachan has pointed out in candid terms:

The 1990 Constitution has erected a number of barriers prohibiting the exercise of fundamental rights on ethnic on ethnic, religious, linguistic and regional basis. The main implication is that the Constitution has paved the way for another political transformation to change the political paradigm from market-or class-based to an ethnic-or region-based one. The Constitution has imposed restriction on fundamental rights, including the freedom of thought and expression, freedom to from unions and associations, and freedom to move and reside in any part of the country if there is "any act which may undermine the sovereignty and integrity of the Kingdom of Nepal, or which may jeopardize the harmonious relations subsisting among the peoples of various castes, tribes or communities." Similar restrictions are imposed on freedom of press and publication. What is interesting is a ban on political parties based on religion, community, caste, tribe or region. These constitutional provisions are directed towards eliminating all active ethnic and region-based political parties such as the Limbuwan Mukti Morcha (LMM), the Nepal Mongol organization (NMO), and the Nepal Sadbhawana Party, and all ethno political activities.

The sum of these claims, which are in no way exaggerated, can be noted as here:
Ethnically, Nepal is a complex society. The issues of representation, language, culture and religion are as complex here as in any other parts of the word. The linguistic, religious, cultural, and racial minorities in Nepal had voiced their concern to the Constitution Recommendation Commission early in1990 as much as other dominant groups. The demands made to the Constitution Recommendation Commission for "recognition of Language other than Nepali and religion other than Hinduism, and for the proportional representation of minority groups, in the legislature, reflect the growth of communal grievances among minority and regional groupings in Nepal which are based on socio-economic realities. Rather than attempting to accommodate these grievances, the Commission and the interim government "simply perceived them as a threat as a threat to national unity, and virtually dismissed them out of hand." [Adhikari: 1994, 60-61] (Foot notes omitted)

8. Constitutional Formulations
Based on the Hindu secular values, liberal Western frameworks, competitive politics, and a Westminster-model parliamentary system, the new Constitution inherited the country as a Hindu state, thereby recognizing the legacy of Hinduised traditions and their cultural ethos. It patronized the Nepali language as the official language, because the framers of the Constitution thought that it was not artificially elevated to the status of a national language. It has been given that status due to its acceptability by the majority population. [Upadhyay: 1996] The new Constitution also denied the demands of some groups in the matter of affirmative action or reverse discrimination programs, a federal political system on the basis of ethnic territories, proportional representation on the basis of ethnicity, etc, because they did not consider these issues as real issues. In other words, it did not accord concrete special treatments of identity. That was also thought to be non-affordable under the given socio-economic strength of the country. [Upadhyay: 1996]

The Constitution guaranteed fundamental freedoms to all with a general ride that they will not be deemed to prevent the making of laws to impose reasonable restriction on any act which may undermine the sovereignty and integrity of the Kingdom, or which may jeopardize the harmonious relations among the peoples of various castes, tribes or communities, or any act of sedition, defamation, contempt of court or incitement to an offense, or on any act which may be contrary to decent political behavior or morality. Even the press and publication right has been subjected to reasonable restrictions on these grounds. The Constitutional guarantee of equality and equal protection of laws applies to all citizens. No discrimination can be made against any citizen in the application of general laws on grounds of religion, race, caste, and tribe. The state is restricted from discriminating among citizens on these grounds. In addition to that, the provisions of the Constitution restrict political organizations or parties formed on the basis of religion, caste, tribe, language or sex, or if the name, objective, symbol or flag indicates as belonging to any particular religion. Moreover, the Election Constitution Delimitation Commission has been restricted from delimitating constituencies on the basis of ethnicity alone instead giving due consideration to geographical conditions, the density of population, the transportation facilities, and the communal harmony or heterogeneity of the local residents in the administrative districts. Furthermore, no question can be raised in any court on matters of allocation of seats to a district and the delimitation of the constituencies made by the Commission. The members of an ethnic group as such have no independent rights.

The Constitution sets out some directive principles of the state in order to pursue, among other things, the vital aspects of ethno development. Although, these principles are not enforceable in any court, they are described to be fundamental to the activities and government of the state. They are, therefore, to be implemented in stages through laws within the limits of the resources and the means available in the country. The net result is that the Constitution enlists no specific kind of constitutional guarantees and safeguards designed to preserve their identity and ensure their freedom of action and afford them protection against marginalization. The preamble of the new Constitution recites its basic structure (which is not amendable in any way) in the following words:

And whereas it is expedient to promulgate and enforce this Constitution, made with the widest possible participation of the Nepalese people, to guarantee basic human rights to every citizen of Nepal; and also to consolidate the adult franchise, the parliamentary system of government, constitutional monarchy and the system of multi-party democracy by promoting amongst the people of Nepal the spirit of fraternity and the bond of unity on the basis of liberty and equality; and establish an independent and competent system of justice with a view to transforming the concept of the rule of law into a living reality.

9. Ethnic Aspirations in Nepal: How are they dealt with?
There are several ways in which the Constitution responds to ethnic aspirations. Although the Constitution showed its conservatism by declaring Nepal a Hindu state in line with the sentiments of the Hindu state is not, however, to be an anti-Buddhist or anti-Muslim state on any grounds. There is no mysticism in the secular character of the state. Under the, formulation of the Hindu State, the Hindu mode of secularism is to prevail. That, in essence, means that every person is to have the freedom to profess and practice his own religion as handed down to him from ancient times having hue regard to traditional practices. Similarly, every religious denomination has been guaranteed the right to maintain its independent existence and for this purpose to manage and protect its religious places and trusts. The State treats alike the devout, the agnostic and the atheist. It eliminates God from matters of State and ensures that none shall be discriminated against on the ground of religion. No religion test is required to any office. The validity of laws under the Constitution is not to be measured by their conformity to religious doctrines. It is not a theocratic State where ecclesiastical doctrines measure right or wrong. There is freedom from payment of taxes for the promotion of any religion and freedom from attendance at religious instructions. The neutrality of the state with respect to religion permits the state to frame and execute secular regulations and rule. The Constitution also prohibits proselytization of any sort, which does not in with the anyway help the followers of indigenous religions. This diversity and yet continuity in past is described essentially as "not at variance" with secular theories employed in other regions. Thus by giving continuity to the concept of Hindu secularism the framers of the Constitution warded off the dichotomy between the theory and practice of secularism present in many jurisdictions.

The framers of the Constitution regarded as cheap talk the demand from some sectors that the Muslims minority be guided only be Sharia law and be exempted from other ethnic criminal and civil laws of the country. They could not positively respond to the ethnic Muslim groups demanding that the hands of a Muslim criminal must be cut off for stealing as enjoined by Sharia law and that a Muslim adulteress must be stoned to death. A State cannot claim to treat alike the devout, the agnostic and the atheist it its Constitution grants specific rights of this nature to the minorities. If religious tolerance is the basis of ancient religious tradition of Nepal then there is no basis for the fear complex of the minorities against the so-called Hindu State. [Upadhyay: 1996]

The Constitution also recognized all languages spoken in Nepal as national languages, without disturbing the linguistic status quo with the use of Nepali. It defined the State as multiethnic and multilingual society and the people as sovereign. At the same time, the Constitution guarantees each community residing within the Kingdom the right to preserve and promote its language, script and culture. in addition to that, each community has the right to operate school up to the primary level in its own mother tongue for imparting education to its children. No person shall on the basis of caste, be discriminated against as untouchable, be denied access to any public place or be deprived of the use of public utilities. Although the constitutional guarantees are meant for all, the Constitution provides however, that special provisions may be made by law for the protection and advancement of the interest of those who belong to a class which is economically, socially or educationally backward. This provision empowers an aggrieved ethnic population to influence the political process in order to bring out effective legislative measures in their favor. Besides, devolution of authority to local self-government units, relaxation of central controls in local matters, and participatory democracy may facilitate this process. Moreover, the Constitution guarantees judicial scrutiny against any possible abuses through the Supreme Court of Nepal by way of private petition or public interest petition from any private person or group. Padma Narayan Chaudhary, a mainstream Nepali Congress leader, who comes from the ethnic Tharu community, has said.

After the restoration of democracy, every ethnic group is trying to build pressure upon the government. I don't think this is an unhealthy practice. Every ethnic group can demand the protection of their own peculiar cultures. Every Nepali under the Constitution is guaranteed the right to preserve the tradition and language of this ethnic group. What I mean is that one cannot be allowed to cross the constitutional limit. Every ethnic group must understand this fact. After all they are citizens of Nepal. Their identity is interdependent with the nation. It is very disappointing to learn that some groups are demanding reservation rights for their community. I do not think there is any reasonable argument behind their demand. It will only divide the people and the nation. If there are reservations, they should be purely on economic basis and not on any ethnic basis. Economically backward people must be supported. [Chaudhari: 1996, 9]

10. Why were the Framers of the Constitution skeptical?
In fact, the framers of the Constitution and the political parties who controlled the framers did not attempt at major political structuring in seeking solutions to the ethnic demands. The refusal was not against the necessity of such structural changes in particular situations. It was rather a fear that such changes may not help to cure the problems if there were any. Besides, the framers thought that Nepal has been vulnerable to pressure-both diplomatic and political-from its mighty neighbors, China and India, and the political history of the last four decades aptly demonstrates how neighbors-particularly India-have made tactical use of the potentially divisive forces in the country to out bargain Nepal in its bilateral issues. The framers, well acquainted with the tragic conflict between the Tamils and the Sinhalese in Sri Lanka, hundreds of cases of ethnic conflicts in India, the Chakma movement in Bangladesh and the cultural conflicts between the Bengalis and Pakistanis that eventually created the separate State Bangladesh, did not prefer to recognize potential sites for civil unrest whether self-insurrected or perpetrated. Moreover, the feeling that minorities once recognized create minorities within it again and that this is a never ending process was also shared by all major political parties during the Constitution-making process. [Upadhyay: 1996]

Whatever the intent of the framers of Constitution, there are solutions to ethic issues under the framework of democracy afforded by the Constitution: Ethno politics as we observed in many countries, has a tendency to be misguided by ambitious leaders in search of their identity and superficial reputation. It is also sometimes irrationally made to collide with the mainstream values and ideologies, and as a necessary implication directed to follow an offending instead of defending path. That makes the ensuing movement not an issue of public rights, but an issue of identity crisis, which is more an interplay of inferiority complex than the matter of political constitutional or legal battles for mass empowerment, equal opportunities and nondiscrimination. If we are sincere about the gravity of the problems, we can pursue our commitment in a way most positive to the democratization process. As far as the Nepali Congress and the Communist Party of Nepal (UML) the two popular political parties of the country are concerned, they are in principal very much positive to the issues involving ethnicity and development. I do not see any reason why the ruling party itself be not used as a vehicle for change in a direction that suits to the great majority of the ethnic population. But for this we have to boost not only our cause but also the capacity of the government to address them. [Adhikari: 1994, 77]

11. Nepal in the Asian context
The opinion of my colleagues in this roundtable is illuminating to my context as well. I want to note that Nepal's case looks to be different from Turkey's. There is an unresolved dispute in Turkey on the fundamentals of the state between the secular and anti-secular forces. A dichotomy has been noticed recently between the orthodox Islam and radical and modern Islam. Kurds under a terrorist organization have been asking for some rights from the state. Thus a constitutional reform bringing a more egalitarian description of citizenship has been said to be necessary. [Genckaya: 1996] I think Nepal has already gone beyond the situation in Turkey.

One has no option but to agree that intense regional bias and discrimination is not helpful for the long term interest of any country and for its nation-building process [Chung: 1996]. Nepal has nothing on record to this day which substantially, or even remotely, proves that there is any regional bias and discrimination under the Constitution or laws, or laws, or in their application. Even supposing that such bias exists in some way, the Filipino solution is not going to work in Nepal. Although the Aquino government in 1987 pursued constitutional solutions to address the continuing conflicts in the Philippines through the 1987 Constitution, there is little belief among the sub-cultures that democracy can be the means to achieve peace and political development. The 1987 Constitution created a Cordillera Administrative Region (CAR) to provide relative political and fiscal autonomy to the tribal groups in northern Luzon and mandated the creation of the Autonomous Region of Muslim Mindanao (ARMM) for the Muslims in Mindanao, the ARMM has been said to be floundering and of little use for regional political stability. The CAR on the other hand, has been spared the volatility in ARMM and is currently said to be in a consultative process of refining its political institutions. [Bolongaita: 1996] To resolve the current legitimacy deficit, the government has been advised to offer constitutional structures including federalism, election by proportional representation, power sharing and minority veto [Bolongaita: 1996] which are already denied in Nepal due to the factors noted in section 10 above.

The Malaysian experience may, perhaps, be an example for Nepal. Professor Lee Poh Ping, in the context of political leadership and interracial cooperation in Malaysia has taken note of the change in attitude with regard to Dr. Mahatthir's liberalizations of cultural and economic affairs, especially by permitting more open demonstrations of Chinese culture, a greater usage of English in government, or government controlled institutions, and relaxing many of the economic restrictions as to allow Chinese business greater freedom in Malaysia. Also significant is Mahatthir's relaxation of the educational policy which allow for greater educational opportunities for the Malaysians of non-Malay descent. [Ping: 1996] This is in fact the line which Nepalese framers may have thought and left for political process.

Nepalese ambivalence regarding alternatives can well be explained by their understanding of the experience of its neighbor India. I agree to disagree with my learned Indian counterpart in this roundtable that Indian constitutional formulations on minority rights, minority represent action, affirmative action, secularism, etc have worked towards national integration. What we realize from our own understanding is that these provisions have definitely worked as catchment areas for some sections of the minority for the time being, but have afforded no permanent solutions. The four major components of the uneasy mosaic of India's plural society i.e., the traditional social structure, dominated by caste, language, religion and class divisions-which Professor Jain has dealt with very articulately have in fact been integrated to this extent by such integrative factors as increasing GDP and a general rise in the quality of life, a system of mass communication, a free and alert press, spiritual values of the masses, the pattern of mass education, a national network of roads and railways, culture-conscious, nationalist and popular commercial films, continuation of English language in government and business, and a judiciary which sometime has become assertive to force its value decisions on the government and political parties.

The most powerful forces of separatism within India were unleashed when the doctrine of separate representation and reservation was conceived for the scheduled castes and scheduled tribes and then for backward classes. Originally mooted by the British as separate electorates for election to legislative bodies at the Center and in the provinces, the idea was accepted by the framers of Indian Constitution and embodied in its various Articles. These Articles provide for reservation of seats for scheduled castes and scheduled tribes in the House of the People and the state legislatures. Similar representation is assured for the minority Anglo-Indians. Backward classes have the privilege of special provisions for their advancement (if they are indeed socially and educationally backward) through a law which the State may make, and also for the scheduled and also for the scheduled castes and tribes. Besides, under an Article of the Indian Constitution, they become entitled for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the State is not adequately represented in the services of the services of the State. Originally, the reservations were meant only for a period of ten years during which it was assumed that these marginalized people would catch up with the mainstream of the society. It however, continues to this day.

Despite the constitutional arrangements, India is tortured by Hindu-Muslim riots, the case of Babri Mosque demolition, the Hindu Sikh conflict such as the aggression on the Golden temple, the Assamese (Bengali carnage in Assam) and many separatist movements led by Naga, Mizos, the Sikhs, and so on. Although external factors may have helped these issues, it is a fact that the attraction of constitutional formulations could not make such ethno-insurgency silent. The whole scheme has now been turned into a political instrument of party politics over the years and, as an outsider, it is not difficult to note that these arrangements have not only created minority elite producing disparities within the favored group, but they have also not been accepted within the upper class socially. Moreover, diverse forces are unleashed in the body politic. Frustration amongst both the upper classes and the beneficiaries is certain to explode in violence as it has in various states there. Professor M.P. Singh has thus elaborated:

"Because the plight of the scheduled castes and scheduled tribes has not materially changed in spite of protective provisions, and in view of the fact that opinions sharply differ on the means to bring about change, the time is already ripe to discuss the steps that are still necessary for achieving the desired results. Since many of the issues involved in this exercise extend far beyond the legal place, sociologists, political scientists, economists, administrations, and others must join hands in this task. Then and then alone, perhaps, it will be possible to give back a little of what the scheduled castes and scheduled tribes so richly deserve. It is a long and arduous task but no amount of effort in its performance can ever be too much. After all, the destination is ultimately the realization of the human rights of the most deserving." [Singh: 1996, 320]

12. Reality of the Nepalese Situation
There are two contrasting views about ethno politics in Nepal. One view holds that ethno politics is primordial, non-rational and an obstacle to the nation-building process and civil society. The other view holds that ethno politics is not against various ethnic groups, and it is relevant in society as a functional intermediate organization between the individual and the polity.[Bhattachan: 1995, 125] While the first view is definitely regressive, the second view needs proper understanding in a broader national perspective. This author does not agree that the Constitution has closed the door on all ethno politics, on ethnic development or on enhancement of sub-cultures. In fact, that is the first Constitution which has liberalized the arrangements to such an extent that ethno politics can move ahead without any collision with dominant groups.

The state under the Constitution cannot deny to any person equality before law, or equal protection of laws. Assuring equal treatment to ethnic minorities or sub-cultures is a value that lies at the core of this guarantee. Besides, additional formulations in the Constitution for the benefit of socially, economically or educational backward classes is an additional premium of this arrangement. Scholars tend to theorize about equal protection by generalizing from the case of Blacks when ethnic questions are posed, but all ethnic minorities or sub-cultures must find out the salient, features of their case. What counts, for example, as equal treatment on the basis of race or ethnicity? Must they make no distinctions based on race? Why, for that matter, is treatment of ethnic minorities a core value of the provision? Because that was the framers intent? Because there is something special about racial discrimination? Because ethnic minorities are oppressed groups in the society? Because the political process does not work for them? Getting the demand right on these questions is of the greatest importance if we are to get it right in other cases. Affirmative action programs aimed at ameliorating racial stereotypes effects of past discrimination may withstand constitutional scrutiny, but can ethnic leaders show such grievances?

Perhaps the essence of my approach can now be stated. It is to recognize that we are concerned with ethnic grievances or ethno development, but we stand by unifying factors for the purpose of the nation and the posterity, that ethno politics in all countries is a synthesis of their history and reality; that for adequate study we divide the problem of nation-building and subcultures into subjects, some of which are deeply rooted in old traditions and culture and some of which are related to, but largely replace, those traditions; that we clearly distinguish the areas to be studied and the approach needed; that we recognize that in areas like "economic deprivation" which are closest to reality, the variations between different districts of the Kingdom may be as great as the dissimilarities between Kathmandu and a remote village; the in many areas no-one can tell from what perspective a particular problem cannot be solved. I venture to say that there is no universal philosophy or approach to nation building. Professor Chung rightly states:

After all, the idea of nation building is relative to the concept of a nation, which is too ambiguous to be defined clearly, as a British conservative politician Enoch Powell once characterized it "cannot be determined scientifically." Therefore, nation building is a mix between both objective and subjective attributes. Objective characteristics of nation building include geography, history, economic structure, while subjective one's entailing cultural and psychological fellowship. Therefore, the theme of the game among different regions in a society needs to be "harmony" rather than "hegemony," one region trying to dominate others. [Chung: 1996]

13. Solutions
Whatever may be the allegations, the fact that Nepal remains "a unified whole" despite many criticisms, and that democracy is at work on a so-called "fragile psychological condition" is itself proof of the sustainability of existing arrangements. Moreover, it is equally true, and must be stressed above all, that a substantial majority of Nepalese intellectuals and politicians have no ethno phobia or prejudice against ethnic issues.

Amicable settlement of these issues is not impossible because Nepal's case is not a case of ethno-nationalism, nor is it as hard ad in South Korea, the Philippines, Turkey, and India. It appears to be a general case of poverty, lack of education and lack of opportunities to a majority of people, irrespective of their ethnic\caste status. Against this background, neither does the Constitution look as mystifying as some ethno-academicians think, nor is it masking in any way the reality of domination by the dominant groups of the Nepalese society. If some groups in Nepalese society think, however, that the existing order is unsatisfactory, illegitimate, and problematic and only represents the interests of the dominant groups, they must be able to show that the Constitution only explains functions, and that too in its entirety.

Any real contribution to the cause of nation-building and consolidation of national sub-cultures is simply impossible, (for example, by creating equal and separate accommodation in Railway coaches for the Blacks as the American Supreme Court decided in Plessey v. Ferguson, [163 U.S. 537, 1896]). It needs the cooperation of the majority of the people and the ethnic leaders of the mainstream political parties to find out what are the issues with valid claims. Unfortunately, those who are making it an issue these days do not have significant political or social standing in the eyes of the public. Besides, they do not want to mix with the major political parties for the simple reason that these issue will get out of hand once they are taken up as national issues. If the Constitution provides sites for hegemony, it can also provide sites for counter hegemonic struggle for marginalized sections of the population. [Baxi: 1991, 72] In the constant shift of actual conditions, however, values always anticipate reality, and the gap between the "ought" and the "is" never closes. The structure of a given society is determined, as well as revealed, by the width of this gap, which is enlarged or narrowed by the extent to which society accepts regulation by legal means for the purpose of achieving social values. It is true with regard to ethno politics as well.

It is strange to see that even the most vocal advocates of the ethnic population have not shown any interest in pursuing their cause through the constitutional process. The first step towards the achievement of these objectives is to bring out the issue from the dying ethnic organizations and political parties to an open theater with a view to broad-based coalition-building. It is a pretty fool who thinks that only ethnic advocates and ethnic minorities have legitimate interests on the cause they represent. In so far as ethnic issues have a bearing upon liberal democracy and national development, they are the problem of the nation and need to be solved on the basis of national perspective. The second step is helping manage a strong ethnic wing in every political party at the national level. The growing participation of ethnic leaders in the political system would in the long run help change the composition of the present day structure of party high commands or intermediary bodies, changing at least its class of caste character, and national power-sharing. The third step is to help recognize the potential role of Parliament in addressing ethnic issues. An official caucus can be established in Parliament of those legislators who want to champion ethnic causes in the supreme representative organ under the constitutional system. The caucus may also focus its activities on legislative proposals, oversight and appropriation of funds in issues related to ethnicity. The fourth technique is to focus more on distributive justice and decentralization of power than on ethnic slogans, parochialism and ethnic\non-ethnic animosities. The fifth program of action may involve free and compulsory education, easy accessibility to vocational education, widespread social movements, cross-cultural activities, inter-caste or caste-tribal marriage, and further institutionalization of time-tested Nepalese cultural traits. Regulation of international borer and "check-in" International migration is also necessary. [Adhikari: 1994, 79-84]

Responsibility needs to be taken by "the government in power, the leading political parties, and the democratic institutions, along with educational and economic programs which will enable people from all sections of national society to contribute to the cause of commonwealth, nation-building and growth. The whole exercise must thus be directed towards this end. As such Constitutional pledges for nation-building and subcultures are adequately reflected in the following directive principles and policies of the State, which are awaiting activism from political forces in Nepal:

"25.3 The social objective of the State shall be to establish and develop, on the foundation of justice and morality, a healthy social life, by eliminating all types of economic and social inequalities and by establishing harmony, amongst the various castes, tribes, religions, languages, races and communities.

26.2 The State shall, while maintaining the cultural diversity of the country, pursue a policy of strengthening the national unity by promoting healthy and cordial social relations amongst the various religions, castes, tribes, communities and linguistic groups, and by helping in the promotion of their languages, scripts, arts and cultures.

26.10 The State shall pursue a policy which will help promote the interests of the economically and socially backward groups and communities by making special provisions with regard to their education, health and employment.

26.13 The State shall pursue a policy of creating conditions for the acceleration of the speed of rural development, keeping in view the welfare of the majority of the rural population. "


References
Mode of Citation: - [Surname of the author: Year of Publication, Page where page no. is relevant]

Book & Articles
Adhikari, Bipin, "Ethno politics and Constitutionalism in Nepal," 18 Essays on Constitutional Law 58-884 (1994)

Baxi, U., "Accumulation and Legitimacy: The Indian Constitution and State Formation," 13 Delhi Law Review 72 (1991)

Bhattachan, Krishna B., "Ethnopolitics and Ethnodevelopment: An Emerging Paradigm in Nepal" in Dhruba Kumar (ed)., State, leadership and Politics in Nepal (Kathmandu: Triibhuvan University, 1995)

Bista, Dor Bahadur, Fatalism and Development: Nepal's Struggle for Modernization (Calcutta: Orient Longman, 1991)

Blaike, Piers, John Cameron & David Seddon, Nepal in Crisis: Growth and Stagnation at the Periphery (Delhi: Oxford University Press, 1980)

Bolongaita, Jr., E.P., "Political Development in a Plural Democracy: The Philippines in historical perspective" in Journal of Social and Behavioral Sciences, Vol. 1996.

Caplan, Lionel, Land and Change in East NepalLand and Change in East Nepal (Berkeley: University of California press, 1970)

Caplan, Patricia A. Priests and Cobblers: A Study of Social Change in a Hindu Village in Western Nepal (San Franscisco: Chandler Publishing co. 1972)

Chaudhari, Padma Narayan, "Ethnicity: A Superficial Issue," in Spotlight: National News Magazine, January 19, 1996.

Chung, Eun S., "Harmony V. Hegemony: Regional Clavage and Its Implications from Nation Building in South Korea" in Journal of Social and Behavioral Sciences, Vol. 1996.

Dahal, Dilli Ram, "Grasping the Terai Identity," in Himal May\June 1992

"Ethnic Cauldron, Demography and Minority Politics: The Case of Nepal," in Dhruba Kumar (ed.), State Leadership and politics in Nepal (Kathmandu: Tribhuvan University, 1995)
Fisher, Louis, American Constitutional Law (New York: McGraw Hill Publishing Co., 1990)

Gaige, Frederich H., Regionalism and National Unity in Nepal (Berkeley: University of California Press, 1975)

Jain, R.B. and O.P. Sharma, "Forging Unity Amongst Diversities: Nation-Building Strategies in India," in Journal of Social and Behavioral Sciences, Vol. 1996.

Pande, Ram N., "Ancient Nepal" in K.P. Malla (ed.), Nepal: perspectives on Continuity and Change (Kathmandu: CNAS-Tribhuvan University, 1989)

Ping, Lee Poh, "Political Leadership and Interracial Cooperation in Malaysia: A Preliminary Discussion" in Journal of Social and Behavipral Sciences, Vol. 1996.

Sharma, Prayag R., "Nepali Culture and Society: Reflections on Some Historical Currents," in K.P. Mall (ed.), Nepal: perspectives on Continuity and Change (Kathmandu: CNAS-Tribhuvan University, 1989)

"Nepal: Hindu tribal Interface" in Contribution to Nepalese Studies, Kathmandu, CNAS-Tribhuvan University, Vol. VI, No. 1

"Bahuns in the Nepali State, "in Himal, Vol.7, No. 2, 1994

Shaha, Rishikesh, Comments from the Floor on Papers on Sociology and Anthropology of Nepal in Prayag R. Sharma (ed.), Social Science in Nepal (Kathmandu: Institute of Nepal and Asian Studies, 19740

Singh, M.P., "Affirmative Protection of Minorities in India," in G. Alfrdsson & P. Macalister-Smith (eds), The Living Law of Nations (Kehl-Strashourg-Arligton: N. P. Engel, Publisher, 1996)

Other Sources
The Constitution of the Kingdom of Nepal 1990

Discussion of this author on August 2, 1996 with former Chief Justice and Chairman of the Constitution Recommendation Commission Mr. Bishwanath Upadhhyay on ethnic issues and the Constitution-making process.

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