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Comparing the 2007 and 2015 Constitutions Dipendra Jha Comparing the 2007 and 2015 constitutions Dipendra Jha Nepal is a multi-ethnic, multi-lingual and multicultural country with a population comprising diverse social groups. Among the multitude of castes and ethnicities, certain communities have been marginalised for centuries, namely Dalits (‘low caste’), Madhesis (from the southern Tarai plains), Janajatis (indigenous groups) and Muslims, along with women from all sections of society. The decade-long Maoist insurgency and the Madhes movements of 2007 and 2008 made significant steps in addressing the issue of marginalisation of under-represented communities, which was reflected in the principle of proportional inclusion in state structures enshrined in the 2007 Interim Constitution of Nepal and its various amendments. Following the election for the second Constituent for state reform. Echoing the CPA, the Interim Constitution Assembly (CA) in 2013, Madhesi and Janajati forces emphasised the state’s responsibility to carry out urged that the Interim Constitution provide the basis ‘an inclusive, democratic and progressive restructuring for the new constitution, to expand on the rights of the of the state … by eliminating class, caste, linguistic, people already granted by it. By contrast, the more gender, cultural, religious and regional discrimination’ traditional of Nepal’s political parties, the Nepali (Article 34.5). Congress (NC) and the Communist Party of Nepal-Unified Marxist-Leninist (UML), viewed the Interim Constitution Marginalised groups had lobbied for reservations during as only a temporary arrangement that could not dictate the 1990 constitution-making process but were ignored the terms of the CA. at the time. The only form of reservation provided for some communities under the 1990 Constitution of the Kingdom Many Madhesis and Janajatis feel that the new of Nepal was in the 60-member Upper House of the constitution promulgated in September 2015 backtracked Parliament, whereby Article 50 guaranteed reservations on important aspects of social justice in the Interim for three women, three Dalits and nine representatives Constitution. This article compares Nepal’s 2007 and 2015 from ‘backward’ minorities. None of the four previous constitutions in terms of commitments to social inclusion, constitutions (1948, 1951, 1959 and 1962) had provided for focusing on key issues of reservations (quotas) for any kind of reservations for marginalised groups either in marginalised communities, guarantees of representation government jobs or political positions. for the Tarai region, and implementation. The Interim Constitution introduced the right to social Institutional inclusion: reservations inclusion for the first time in Nepal’s constitutional history. The 2006 Comprehensive Peace Accord (CPA) between the Under Article 21 on the ‘Right to Social Justice’, it specified government and the Unified Communist Party of Nepal- that: ‘Women, Dalits, Adivasi Janajati, Madhesi, oppressed Maoist (UCPN-M) called for an end to discrimination and groups, poor farmers and labourers, who are economically, exclusion based on caste, ethnicity and gender, but also socially or educationally backward, shall have the right to 64 // Accord // ISSUE 26 participate in state structures on the basis of principles Heeding the demands of Madhesis and Janajatis, the first of proportional inclusion.’ amendment of the constitution in January 2016 changed ‘principles of inclusion’ to ‘principles of proportional Many, although not all, Nepali laws were inclusion’. Previously, ‘proportionate inclusion’ had subsequently amended to provide reserved quotas for been guaranteed only to women (Article 38) and Dalits marginalised communities, beginning with the 2007 (Article 40). The amendment also removed ‘youth’ and amendments to the Civil Service Act, which resulted the superfluous ‘indigenous people’ (already covered by in increased representation of marginalised groups Adivasi Janajati), and re-ordered the groups as: ‘Women, in the public sector. The Government of Nepal also Dalit, Adivasi Janajati, Madhesi, Tharu, Muslims, backward introduced a number of measures for the inclusion classes, minorities, marginalised communities, persons of marginalised groups in its plans, policies and with disabilities, gender and sexual minorities, farmers, programmes. The recommendations from the various labourers, oppressed or citizens of backward regions, and thematic committees of the first Constituent Assembly indigent Khas Arya’. Article 42 also includes the qualifier further reinforced the agenda of making the state ‘who are economically, socially or educationally backward’ more inclusive. for the above groups, although it is not clear to which groups such a description applies or if it meant for all. Reservations and the Khas Arya Citizens’ rights to equality, justice and non- The 2015 Constitution has discrimination are ingrained principles that reaffirm the idea of inclusion in Nepal’s 2015 Constitution, which in also provided reservations some areas has carried over relevant provisions from “ to the already dominant the Interim Constitution. For instance, the new constitution guarantees 33 per cent representation Khas Arya, a group that is for women in the House of Representatives, the overwhelmingly represented lower chamber of Parliament, and also in provincial legislatures. It also provides for ‘proportionate inclusion’ in all state structures.” in government service (Article 285), which, in principle, would mean that the government would begin to reflect Besides cluttering the list with undefined groups such the country’s social diversity. as ‘backward classes’, ‘minorities’ and ‘marginalised communities’, all of which terms are also applicable However, the new constitution also dilutes important to the historically marginalised, Article 20 shows how commitments to greater inclusion by increasing the the 2015 Constitution has also provided reservations number of groups qualifying for reservations, and to the already dominant Khas Arya, a group that is by using vague language that can be interpreted in overwhelmingly represented in all state structures. different ways. Some marginalised communities have The addition of the Khas Arya stands against the principle been pushing for revisions that can better uphold their of proportional inclusion and implies a potential reduction interests. But the provision on the ‘Right to Social Justice’ of positions reserved for marginalised communities as well in the new constitution identifies many more ‘clusters’ as for women. Further, none of the communities other than for reservation, a significant proportion of which are the Khas Arya has been defined under the Constitution of poorly defined, while the incorporation of the Khas Arya 2015 (Article 176.6), effectively giving constitutional validity (a historically advantaged, ‘upper caste’ group) among to the four groups described as belonging to this category the new groups qualifying for reservations adds a more while denying such validity to the more than a hundred that specific complication. belong to the marginalised. This was a blatant instance of the Khas Arya, who were in leading positions in all the Initially, a total of 17 groups were mentioned in major parties represented in the Constituent Assembly, the new constitution as deserving special attention: misusing their power to fulfil their own needs. ‘Women, Dalit, indigenous people, Adivasi Janajati, Madhesi, Tharu, minorities, persons with disabilities, Hence, under the new constitution, the Khas Arya marginalised communities, Muslims, backward community can lay claim to the reservation facility classes, gender and sexual minorities, youth, farmers, under five of the 15 eligible categories – as women, as labourers, oppressed or citizens of backward regions, labourers, as farmers, as belonging to backward regions, and indigent Khas Arya shall have the right to and as ‘indigent’ Khas Arya (as well as disabled people participate in state bodies on the basis of principles and gender and sexual minorities). It is true that poverty of inclusion’ (Article 42). affects all communities, including the Khas Arya, but rather Two steps forward, one step back: the Nepal peace process // 65 than address this through a programme aimed at poverty number of members and the population of the districts’ reduction, the 2015 Constitution has instead envisaged (Article 154A.6). Under the present constitutional the reservation policy as a means towards that end, instead dispensation, the number of constituencies has a of recognising reservations as being aimed at empowering higher significance since 60 per cent of the legislative marginalised communities. seats at both the federal and provincial levels will be elected directly through the FPTP system. The 2015 Constitution has also provided for a National Inclusion Commission whose ‘functions, duties and The new constitution weakened this commitment, whereby powers’ state that it is to engage in various activities the Constituency Delimitation Commission would ‘consider for the welfare of ‘the Khas Arya, backward classes, geography and population as the basis for representation, persons with disabilities, senior citizens, labourers, and maintain as far as practicable the equal ratio or farmers, minorities and marginalised communities, proportionality between geography, population and the people from Karnali and the poor’. Once again, the number of members’ (Article 286.5). The equal weight Khas Arya have been clearly identified whereas
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