MINORITY REPORT
Bipin Adhikari lawyers_inc_nepal@yahoo.com
E Kantipur
2009-07-02 00:30:28
The report of the Constituent Assembly (CA) Committee on the Protection
of Rights and Freedoms of Minority and Marginalized Communities, which
is now under discussion at the plenary session of the House, captures
many of the current requirements under its terms of reference. The
report contains a concept paper and a preliminary draft as much as
they relate with the minority rights issues to be covered by the new
constitution to be drafted by the unicameral House.
The report deals not only with normal individual rights as applied to
members of ethnic, class, religious, linguistic or sexual minorities,
but also collective rights accorded to minority groups by virtue of
their minority status. Marginalized groups are also carefully brought
within the fold. In its entirety, it covers protection of existence,
protection from discrimination, protection and promotion of identity,
and participation in political life. But then it also happens to
contain a very controversial provision while dealing with the right
to equality.
As a proviso to the general rule which guarantees that the state
shall not discriminate between people on the basis of ethnicity,
religion and so on, it also goes on maintaining that the state shall
provide by law special measures on the basis of positive discrimination
along with compensation for the persecution rendered in the past for
the protection, development and empowerment of the communities and
classes left behind in economic, social, political and educational
areas and in the area of health (emphasis added).
An identical provision has been proposed also in the context of racial
discrimination and misconduct of "untouchability" and religious and
personal persecution. Here, too, the state has been obliged to provide
compensation for the discrimination, misconduct and persecution,
in addition to the measure of proportional representation in state
institutions. Firstly, the committee intends to treat the first
set of communities differently than the second set of communities,
yet both these provisions maintain that Nepal has been a persecuting
state – a grave charge that remains to be substantiated on explicit
grounds. Secondly, it defines discrimination associated with the
untouchability stigma as racial.
At the outset, it must be emphasized that comparative constitutional
law has developed a rich discourse over the last half century or
so on how the state might respond in varying ways to the claims
concerning historical injustices. There are different models of
reverse discrimination or affirmative action, which could be applied
to promote equal opportunity and set the balance right. They focus on
measures ranging from employment and education to public contracting
and health programmes. The drive behind them are two-fold: to maximize
diversity in all levels of society, along with its presumed benefits,
and to redress perceived disadvantages due to overt, institutional
or involuntary discrimination.
The intention here, as far as the report of the committee is concerned,
seems to be apparently different. Going beyond the historical wrongs,
it talks about "persecution", which in general may imply the systematic
mistreatment of a community by another community through murderous
activities and efforts of extermination, enslavement, deportation
or maltreatment on political, racial or religious grounds. The most
common forms of persecution are religious, ethnic and political,
though there is naturally some overlap between these terms. In any
case, the term "persecution" implies deeply traumatic injustices.
Without generalizing too much, certain apparent characteristics of
persecution could easily be established. When the committee uses the
term, (a) It assumes in the first place that Nepal has a history
of persecution (b) That the persecutors have acted with the power
of the state in the job of persecution (c) That this went on for a
long time of history and (d) Resulted in continuous deprivation of
some groups, which needs to be remedied by offering compensation by
the state. It also implies that affirmative actions or measures of
positive discrimination are not enough to redeem them.
In the given framework, the "state" must be defined as persecutor,
and compensation must be paid by it as the culprit of history. It
goes without saying that the state (persecutor) here means the Khas
community, especially Bahuns and Chhetris, who are now implicated
for capturing this country for long. This is the community that
produced King Prithvi Narayan Shah, who unified the country in the
latter half of the 18th century and allegedly started the process of
persecution through his new establishment. Linked with this is the
argument that Khasas are the invaders while the other communities
are the victims. The committee has not offered the basis on which
this conclusion has been grounded.
The world definitely has a history of systematic mistreatment of groups
due to their religious affiliation – resulting in the persecution and
killing of millions. Atheists have experienced persecution throughout
history. In the two thousand years of the Christian faith, about 70
million believers have been killed for their inability to turn back
from their religion. The persecution of Jews occurred many times
in Jewish history. Hindus have been historically persecuted during
Islamic rule on the South Asian subcontinent. The persecution of many
ethnic groups, not to mention ethnic Germans and albinos, are the
most scandalous episodes in world history. These are not stories of
isolated examples, but of unrelenting persecution over a long period
of time. But do they have parallels in Nepal?
During 1915-20, when Ismail Anwar was the ruler of Turkey, 12 lakh
Armenians, almost 8 lakh Greeks and 5 lakh Assyrians were eliminated
because of ethnic reasons. It is said that during the reign of Chairman
Mao Tse-tung of the Chinese Communist Party, more than seven million
people were killed due to political and ethnic reasons. During 1932-39,
Joseph Stalin eliminated 2.3 million people from different parts of
the Soviet Union.
Adolf Hitler of Germany was by all means the worst persecutor. He
killed six million Jews to establish what he described as Nazism
just seven decade ago. During 1941-44, almost 50 million people were
killed in Japan. Cambodia’s Pol Pot regime of 1975-79 and of North
Korea’s Kim Il Sung’s regime between 1946-1994 were the other worst
scenarios. All these examples can help explain what persecution is,
and at what time the state must be identified with the persecuting
rulers or their communities.
Even among the cases softer than them, treating the problems of Nepal
on a par with the treatment of indigenous peoples, such as the Indians
and Inuits in Canada, the Aboriginal people of Australia, the Maoris
of New Zealand, the Sami of Scandinavia, the Inuits of Greenland and
the Indian tribes of the United States cannot be prudent. There are
many such examples, where natives suffered because of persecution
rendered by outsiders who settled in the country.
Unfortunately, Nepal as a persecuting state does not fit anywhere. The
committee report must then be discussed why the state should be scolded
for grave injustices and persecution that it has not committed against
anybody. And if the purpose is only to create space for further
affirmative action and positive discrimination measures for those
who deserve them, why the reference about persecuting state or the
persecuting community. If the strategy is not to diminish the political
identity of this country, there is scope for serious discussion.