Preliminary Draft Constitution Not Fair on Women and the Socially Marginalized - Part 2

Ajay Pradhan | July 2, 2015

After I wrote my first opinion piece on the draft Constitution on June 30, I read the Constitution some more. Here are some additional observations. The Constitution is long (a total of 128 pages) and in Nepali. So, I’m focusing on the Preamble, Citizenship and Rights and Duties. I do intend to read the rest and post additional comments.

Preamble

The Preamble cites armed struggle (sashastra sangharsha) as being part of Nepal’s glorious history. Really? 15,000 people dead, many of whom still unaccounted for, in Maoist insurgency and that’s glorious?

The Preamble commits to end untouchability (chhuwa.chhut). This is good, of course. But, the Preamble qualifies untouchability with a series of adjectives: class (vargiya), caste/ethnic (jaatiya), regional (chhetriya), linguistic (bhashik), religious (dhaarmik), gender (laingik), and all kinds of caste/ethnic untouchability. Very odd composition. Fluffy. And, likely untrue.

Untouchability is an abhorrent practice that has been unjustly applied on the basis of caste and ethnicity, but not on the basis of class, region, language, religion and gender. Untouchability and ethnic discrimination, exclusion, seclusion and marginalization is a big and an important social challenge for the nation and the country must put a sharp focus on this scourge like a laser beam. The current language of the Preamble waters this down. Clarity is needed. Each word must count. Constitution is not an instrument to use flowery language.

The Preamble declares establishing the foundation of socialism as a commitment. Socialism in and of itself is not, cannot be, should not be the goal. It can be a means to create a just society, but it cannot be an end in itself. Everybody should have the right to a just society, but they need not have a right to socialism. Socialism is only social-economic method that may work at a particular time in history. But its utility can change over time and the society may have to bring in a different system. Constitution needs to be visionary, not short sighted, which is what the current draft is. This is also repeated in Article 4 under Part 1.

Part 2: Citizenship

Part 2 is devoted to citizenship. As I identified in my previous opinion piece, the provisions in Part 2 are misogynistic and patriarchal. Those provisions must be corrected and gender-based discrimination and prejudice must be eliminated. If not corrected, the Part 2 citizenship provisions will directly contravene with the fundamental rights enshrined in Part 3. (For more details on how Part 2 citizenship provisions discriminate against women, read my other commentary on Citizenship here).

Part 3: Rights and Duties

Part 3 devotes on fundamental rights and duties. Article 23 under Part 3 provides for equal rights. Sub-article 1 of this article clearly states that all citizens will be equal before the law and no one will be deprived of equal protection and benefits flowing from the law. Sub-article 2 states that in the application of normal or regular (samanya) law, there shall be no discrimination based on, among others, gender. (It is not clear what is meant by normal or regular law and how it is distinguished from other types of laws.)

Despite this declaration of equal justice under law, Part 2 provisions on citizenship blatantly discriminates against women. The message of Part 2 citizenship provisions is basically this: In Nepal, it is better to be born a baby boy than a baby girl.

Every living, thinking, and breathing man and woman must oppose the misogynistic citizenship provisions under Part 2.

Sub-article 3 under Article 23 provides for equal rights for, among others, all castes and ethnicities. But, its “notwithstanding” clause provides for special privileges for social groups left behind socially and culturally. Oddly, enough, this provision includes the social grouping in Nepal that has been at the forefront of power structure politically, socially, culturally, linguistically, and in government administration—Khas Aarya, which includes Bahuns and Chhetris. Inclusion of this perpetually privileged group in the same category as the truly oppressed and marginalized defies logic.

This privileged group should not be lumped together with the truly marginalized and underprivileged social groups. Let me just give you one example. Let’s see who have been Nepal’s prime ministers since the fall of Rana Dynasty in 1951 (2007): Matrika Prasad Koirala, Tanka Prasad Acharya, K.I. Singh, Subarna Shumsher Rana, B.P. Koirala, Tulsi Giri, Surya Bahadur Thapa, Kirti Nidhi Bista, Nagendra Prasad Rijal, Lokendra Bahadur Chand, Marich Man Singh Shrestha, Krishna Prasad Bhattarai, Girija Prasad Koirala, Man Mohan Adhikari, Sher Bahadur Deuba, Pushpa Kamal Dahal, Madhav Kumar Nepal, Jhala Nath Khanal, Babu Ram Bhattarai, Khil Raj Regmi, and Sushil Koirala. Many of them became prime minister multiple times.

Tell me how many of them were or are non-Khas-Aarya?

One. Yes, just one.

All the rest, Khas-Aarya. Out of 21 prime ministers (just based on head count, not based on the multiple, non-consecutive tenures), all but one were Khas-Aarya. (Two, if you also count Giri.)

So, no need to treat this Khas-Aarya group as underprivileged. No affirmative action for the privileged.

Focus should be put where focus is due: the truly marginalized, the truly dispossessed, the truly underprivileged, the truly oppressed. Unless that is done, the Constitution will only be providing lip service to them.

(More coming)