Informed dialogues and discussions on Nepal’s Constitution are still absent: Malla

Katak Malla is a critical thinker, writer, and debater as well as experienced jurist with LLM and LLD degree from the Stockholm University and he teaches the international human rights and environmental law. Malla has been a Senior Researcher at the Swedish Institute for European Policy Studies, Consultant to the Sida, International IDEA and has conducted the political parties’ capacity building program in Nepal and Sudan. Nepalekhabar talked with Malla about the current situation of Nepal and the ongoing protest program of Madeshi parties among others. Here are the excerpts:

How do you analyse the current situation of Nepal, as the new constitution brought various challenges rather than bringing political stability in the country?
‘Stability’ means different things for different people. For the people in power, ‘stability’ generally means maintenance of status quo, but a ‘stable political system’ entails genuine opportunities for ordinary citizens to take active part in the process of forming and challenging the government as well as democratically ousting the government. Let me start my answer with a positive note on the present situation. Against all odds there is collective will of the people for resetting the political order of the republic of Nepal, ostensibly towards a democratic welfare state. Arguably, the people of Nepal are looking for a sensible political process and a new kind of political leaderships that could usher peaceful democratic changes.

The adoption of the constitution by the elected Constituent Assembly is the sovereign internal matter of Nepal, but wider acknowledgement of the constitution by the outside world has become an international political necessity for Nepal, particularly from the UK, the EU, the US and India. The outside world also needs self-reflection for their involvement in Nepal. Of course, Nepal’s parties are accountable for the lack of understanding for the implementation of the constitution adopted by the country’s elected Assembly.

The present collation government of CPN-UML, Maoists and royalist’s parties has the majority in the parliament and at the same time the violent incidents in the aftermath of the constitution’s adoption and the on-going demonstrations against the government by the Madeshi parities are the wake-up call for the sensible political leaders of Nepal. Some reliable reports from the southern Nepal reveal that some groups are preparing for violence. The overall scenario of the country tells us that there are conditions for repetition of violent politics in Nepal. Unfortunately the government is not sensible, the political parties are using the same old tricks of making and breaking alliances, aiming to form or change governments for personal benefits. The wise-sensible leadership must be aware of and prepare for the necessary strategies, preventing the violent politics in the country.

As an expert, how do you view the new constitution? Is it discriminatory as labelled by protesting groups?
‘Expert’ is an uncomfortable title and I consider myself an observer of the Nepalese legal and political issues. In view of you question, the constitution should be analysed from (1) women’s right to confer citizenship to her offspring, (2) culture and languages-based identity and representation – as opposed to the race and ethnicity-based identity, and (3) the most important of all is the acknowledgement of the historical injustices to the people, i.e. Dalits, and necessary corrective constitutional measures. Let me start with the Dalit issue first and afterwards I will focus on the two initial points.

The new constitution does not acknowledge the historical injustices that exist in Nepal in the name of religion and the hierarchy of caste system. The political class of the country has failed to identify appropriate discourse on the corrective actions against the historical injustices. The Dalit Commission does not have much power and the Dalits certainly deserve compensation for the historical injustice. The country as a whole still is lacking the form of informed discussions and dialogues regarding appropriate compensations measures.

On women’s right: The influential judges of Nepal and a section of jurists still, in the 21st century, seem to believe that it will endanger Nepal’s traditional culture and values if equal right is allowed to daughters and sons. A section of Nepal’s jurists and media have argued that Article 11 of the new constitution provides for equal right for men and women, but there is a genuine concern that Nepalese women do not have “the same right as Nepalese men to confer citizenship to her offspring”. Any discrimination regarding the right to citizenship of child to a single mother, whether citizen by decent or naturalized, is contrary to Article 15 of the 1948 UN Declaration of Human Rights, as well as Articles 2 and 7 of the 1989 Child rights Convention. Where and if there is gender-based discrimination in terms of citizenship (and other types of discrimination) it is a duty of the law courts to declare such discrimination null and void.

Nepal’s new constitution has classified its citizens into the two groups, one with the political rights and all other rights, who can take part in the deliberative or judicial administration of the state. The other group shall have only the economic and social and cultural rights. Whether or not the second group have any constitutional responsibility towards Nepal, especially the duty to pay tax, is not clear in the constitution. This group includes the people of Nepalese origin, who have adopted foreign citizenship. Generally, citizens have duty to pay tax. And, citizenship entails all kinds of rights, including political, economic, social and cultural rights. Apparently, Nepal has adopted a new concept of citizenship and the country will have to conclude a number of bilateral and multilateral treaties, regarding the second group of citizens, implementing the relevant constitutional provision of citizenship and regulating double taxes.

On culture and language-based identity and representation: The most absurd aspects of the political development in Nepal is that the economic class concept has yet not been applied either in the political manifestos or in the country’s economic planning, despite having many communists and left parties in the government currently and that Nepal has had the communist movement since the late 1940s. The idea that “They can not represent themselves; they must be represented” (Karl Marx) has been challenged by the post-colonial and subalterns studies, who argues for the culture and language-based identity and representation. This also means that proletariats must represent themselves not the communist party. If the aim of the new constitution is to protect, preserve and improve all cultures and languages, it could be done through the system of genuine local-self government. The new constitution of Nepal neither provides for a genuine local-self government mechanism nor a framework of actual federal structure of the country. It is absolutely necessary that the modern constitution of Nepal undo classification of human into race(s), caste(s) and ethnicity(s). Nepal must also avoid, embracing the 18th century race theory. All political parties of Nepal, including those protesting against the constitution, should have their self-reflection on their political programs, many of which have gone out of the political track.

What could be done to bring stability in the country? What could the agitating parties do and what could the ruling and opposition parties do?

A number of steps are necessary to set Nepalese politics in right track. As I said earlier that setting the economic ‘class’ perspective could be a first step in the right direction, aiming for social justice in the hierarchical societies of Nepal.

An initiation of informed dialogues and discussions between the various political parties and academics can be a further step. For example, both the parties in the government and the protesting parties must acknowledge the fact that the federal structure, ethnic-inclusive identity and proportional representation are certainly the vital constitutional issues to be properly addressed in Nepal, but these are also difficult and fully not implemented concepts even by the Western democracies and the Indian constitution.

Rather than working to resolve pressing issues of the country, political parties are involved in the power game, being involved in the capacity building programs of political parties. What is your recommendation for them to give political stability and move the country towards development?

In absence of internally democratic parties, the country’s parliamentary democracy cannot be sustained and without which the necessary equitable economic development is not possible in Nepal. The political parties of Nepal still have the classic tendencies of infighting or revelry from the time of the Rana regime (1846-1950). The ultimate objectives of all parties is to form the government of the country, but the manner the current parties are using strategies to make and/or break alliances to form governments for personal ambition of the party leaders is obviously dangerous for democracy.

Intra-party democracy is the circulatory system of the body politic – it is the lifeblood of democracy’s consolidation. A few years ago, I had developed recommendations for the capacity building of political parties of Nepal. The necessary reforms recommendation include regulation of vertical and horizontal relations between leadership and party members; clarified roles of parties’ ancillary organizations; professionalization of the civil service, police and armed forces, which have become politicized; and a reorientation of the understanding of Nepal’s and socio-political history and culture. However these recommendations are yet to be implemented.

The country’s method of financing parties should similarly be fixed, i.e. political parties should make it clear, whether through legislation or constitutional amendment, what party financing system best suits Nepal’s particular context. If a laissez faire model is adopted, then there should also be legislation to facilitate legal and transparent contributions to parties from companies and individuals. Also, it is proposed that there be more extensive external auditing of political parties’ finances, if/when internal auditing proves insufficient.

Parties’ failure to reform themselves internally could lead to yet another missed opportunity to translate Nepal’s democratic aspirations into reality, or worse yet lead to a crisis of catastrophic proportions.

Nepal recently faced blockade imposed by India expressing dissatisfaction over Nepal’s new constitution, how do you analyse it and what should Nepal do to avoid such situation in the future?

Under the public international law, Nepal has the natural right to import and export goods via Nepal’s the two transit states, China and India, which is also known as the right of access to and from the sea. The transit right is well established by international legal norms, the 1982 Law of the Sea Convention and Nepal-India transit and trade treaties and now the recent treaty with China. To deprive Nepal from its right of access to and from the sea is an abuse of right by the transit state. India has right to security but it is not entitled to abuse Nepal’s transit right as it pleases. Denying the innocent passage for non-military goods is violation of international norms and customary as well as treaty practices.

It is essentially because of the existing power asymmetries between Nepal and India, the international law has limited application concerning the blockade (declared or undeclared), whether it is imposed by the government of India (GoI) or its proxy inside Nepal. Only strategy for the government of Nepal (GoN) is to exercise the balance of power. In that, GoN should analyse intention, acknowledge preferences and capacities or contingencies of its own, as well as of the GoI and the government of China (GoC).

Intention: according to the latest reports, the GoC intends to supply fuel, if the GoN made such a request (The Chinese Foreign Ministry Spokesperson, Hua Chunying, quoted also in The Himalayan Times, October 17, 2015). The GoI’s intention is also open and clear, pointing to the seven point demands for the changes in Nepal’s constitution (the demands published in The Indian Express, September 24, 2015). What do the two government’s intentions tell us?

The GoI’s demands are perhaps aimed at countering the increasing Chinese influence – perceived or real – in Nepal. And, the demands are not necessarily aimed at the constitutional rights of people in the Tarai region. The demands, instead, maybe for the new vital treaties or secret deal with Nepal, somewhat similar to 1965 treaty, barring Nepal from buying arms from any third country. Note that the GoN bought some antiaircraft guns from China and the then GoI imposed 1989-90 blockade, which ended the non-party political system in Nepal. Now, the GoI is using internal politics of Nepal, pitting one community against another.

Preferences: Time is an important factor for conducting balance of power and 2016 is neither 1965 nor 1990. The GoI and GoC care for their sphere of influence in Nepal. Currently, trade and market preferences are vital for both. Security concern is more vital for the GoI than the GoC. The GoI knows well that the Chinese goods are increasingly replacing the Indian market in Nepal. However, Nepal will not be a preference for either when and where the GoI and GoC calculate more profitable deal among each other – remember that the two governments have agreed to expand border agreement at Qiangla/Lipu-Lekh Pass, a far western point of Nepal, which the GoN claims part of its territory. Yet, it is noteworthy that the GoC is willing to help Nepal with fuel supply. The GoN must accept the offer and prepare for it, even if the GoI is not happy or even antagonized. What is the cost-benefit-analysis, in doing so?

Contingency: the key for cost-benefit-analysis include dependence, chance of success, condition as well as uncertainties. The GoN needs to evaluate and analyse the information. For example, there is a credible knowledge that “open fighting in Nepal would not be good for China or India, both of which fear a flashpoint between them” (Chairman of the Parliamentary Standing Committee on External Affairs, India, Sashi Tharoor). When calculating the uncertainty of the success of the chosen strategy, one must also calculate hardship of the people. The GoN has trust deficits, but if it can earn the trust of the people. What happens if the GoN negotiates a deal with the GoC, importing fuel, at least 50%? The reaction from the GoI, could be perhaps more blockades, not perhaps military intervention, but perhaps slow violence in the Tarai region. Thus, the best option for the GoN is to make constitutional amendments, as demanded by the people in Tarai, as soon as possible. And, prepare for two negotiations, simultaneously, for importing petroleum and gas from the both neighbours, 50% from China and 50% from India. Nepal’s geo-political location is helpful to use the balance of power. For that the GoN needs to do its homework, if it wishes not to submit one neighbour against the other. The strength of the GoN is doubtful in exercising the balance of power strategy and hopefully there is someone in the GoN, who understands its advantage and has the skills in implementing the strategy.

How Nepal can benefit from being the neighbour of two emerging economy of Asia?

Nepal needs the right education on the foreign and economic policies and the government must set appropriate policy measures and strategies, benefiting from the two rising economy of China and India. Nearly thirty million people of Nepal are a considerable economic strength of the nation. In recent years, Nepal has become a large market for the Chinese garments and electronic equipment, even apples. Before the northern Indian railway development toward Nepal border, Nepal’s trade was limited with Tibet, importing essential goods such as wool and salt and exporting rice, sugar and goat ghee. After the Indian railway came into service, Nepal’s trade and transit intensified with India. Traditionally, Nepal has also been a market as well as a resource for the Indian economy, ranging from water resources to the outsourcing of the Gorkha army.

A noteworthy development in the region is the creation of the Asian Infrastructure Investment Bank, and Nepal needs to prepare to share benefit out of this Bank by setting right approach and policies. China will provide 50% capital of the Bank for the energy, telecommunications and transport projects in the Asia’s underdeveloped countries. India has already joined the Bank.
“Nepal can be a bridge between China and India”, said Xi Jinping (The Economic Times 21 March 2016) in terms of trade and development. China’s plan of Mt Everest railway has come to light recently through the world’s media. The plan is reported to be a 540-kilometre rail tunnel under the Mt Everest between Tibet and Nepal, which is to be completed by 2020. This plan may be useful for Nepal in its transformation from a land-locked state to land-linked state.

Nepal has been a meeting and mixing centre of the ancient Chinese and Indian civilisations. These bonds are the basis for what should be ‘genuine mutual benefits’. There can be no match between Nepal and China or between Nepal and India in terms of power configuration, e.g. territory, population and economic and military strength. Nonetheless, the mutual benefit is apparent in the triangular relations. Nepal therefore need right approach and strategies to benefit out of the regional economic development.

What could be the role of experts like you for solving the problems dogging the country? How can you support the government and political parties to strengthen their capacity?

The role independent minded individual is to get involved in the informed discussion, argue and counter argue with ideas and principles. The problem is whether the people in power and opposition are ready to listen. There is also problem of the rising anti-intellectualism in Nepal and some people seem wrongly choosing only one identity.

At the time of serious crisis or conflicts, there is often a dilemma as to how could/should we know and/or choose the right side of arguments or the right side of history. In selecting the right argument, one logical conclusion is that we should be with the arguments of those public intellectuals, who raise issues of public concern, arguing and counter arguing issues of social relevance. The “think tanks” experts, in my view, generally have vested interests with power and follow the line of their respective governments or regimes, defended by the government and write policy for the government. This is perhaps the reason behind the current divide among Nepal’s civil society actors. Democratic criticism or self-critique and critical argumentation, I think, should be the character of public intellectuals/academicians. The public intellectuals’ role, in the present situation, I believe, is to counterpoint the official views, not just for the sake of criticism but also engaging with the issues of society by “remaining true to certain unchanging principles”.

Most of the intellectuals and civil society representatives have been divided in Nepal based on their political thoughts. In this context, how can experts like you play effective role for giving independent views about the problems the country is facing and find a win-win situation for all the parties (as they may consider the unbiased views of experts like you)?

Under the circumstances, it may be difficult to bring together the already divided civil society representatives, essentially because of the existing intimate relationship between some influential political party leaders and civil society heads. Let us hope that a new generation civil society and political leaders will emerge sooner or later, and we should support those emerging leaders in the respective areas.

The present divide of civil society representatives is certainly a problem in Nepal, but as I said earlier that it is all about to be in the right side of history and to see issues from the human perspective, irrespective of individual political affiliations or political thought. It is absolutely necessary at the moment that the civil society should not condemn political parties outright and consideration must be given to the cumulative effect on decreasing political participation by the youth and at the same time the political leaders should stop condemning the civil society leaders and human rights activists.

The division you mention maybe a consequence of the development of civil society itself. Nepal’s civil society organizations came into focus for the international aid agencies after the establishment of multiparty democracy in 1990. Part of the rationale was that since governments in a fledgling democracy do not always perform democratically, the demands of the governed need more avenues for expression. In the case of Nepal, international assistance to civil society empowerment has proven fruitful, especially when one takes into account the independent media’s role in revealing corrupt government practices during the 1990s, as well as civil society’s role as a catalyst in the pro-democracy people’s movement of April 2006. This happened against the background of weak and compliant political parties, with party leadership unaccountable to rank and file members that left themselves open to manipulation by not only each other but also anti-democratic forces.

Democracy incrementally gave way to oligarchy and political conflict to the Maoist war. In that vacuum, civil society organizations took a leading position in the pro-democracy movement, in part because they had more credibility, leverage and latitude than the parties.

Do you have any message to the readers?

As a people, we must acknowledge the past injustices in our societies, resulting from the practice of the race theory, which had classified people into various race, caste, colour and ethnicity. We need to learn that humankind are not a “race”, and “tribes and “ethnicities” are narratives of the race theorists. Scientific inquiries refute race, caste or ethnicity, recognizing human as one of the species in the biosphere. We also have to learn that human’s facial and colour differences are the climatic adaption. Above all, it is absolutely necessary to unlearn wrong practices, if we want to ensure peace, implement democracy at national and international levels.

We must recognise that “no one today is purely one thing”, no culture and/or language is pure, no one has a single identity, and in order to be a genuine citizen of any county, one has to recognise oneself as a human first. Especially, in times of crisis we must avoid to identify with one identity. All cultures have the barbarian past and no culture today is superior to others. No one should put others in the hierarchy of any kind and try not to rule others. The historical injustices must be acknowledged and possible necessary correction must be made.

In the early 1980s – during the time of national referendum in Nepal, I was one of the students, working for a multi-party democracy, arguing for equality, cultural and linguistic rights (e.g., Bhojpuri and Maithili and Thru cultures) in the Tarai region of Nepal along with some prominent leaders from Madesh, who are no longer alive today. Personally, I am saddened the way the Madeshi issues is being played within and outside the country, mostly because of the lack of informed discussions and dialogues. I do not know what can I do, but I would be happy to assist in my little capacity where I can. But I am urging the people in power today to take the issue seriously and resolve as soon as possible as well as the protesting parties to have informed discussion with and between parties.

(Editor’s Note: How do you find this interview? Please send your comment at editor@nepalekhabar.com or editor.nepalekhabar@gmail.com)