21 November
2013
European
Union Election Observation Mission – Nepal 2013
Trade
Tower, Ground floor, Thapathali, Ward No 11
Kathmandu –
Nepal
Re: Urgent Communication concerning legal
framework for Nepal’s Constituent Assembly Elections 2013 and its
implementation
Dear Sir or
Madam:
This urgent
communication is respectfully submitted for consideration of the European Union
Election Observation Mission – Nepal 2013, under the mandate and objectives of
the Mission, concerning the legal framework for Nepal’s Constituent Assembly
Elections 2013 and its implementation in relation to representation of
indigenous peoples in the Elections and forthcoming Constituent Assembly.
We hope
that the information that follows will demonstrate failure of the Government of
Nepal to adhere to its national and international legal obligations to ensure
effective representation and participation of indigenous peoples and other
marginalized groups in the Elections and following constitution-drafting
process through the Constituent Assembly.
We urge for
your kind attention to this communication and welcome request for further
information and clarification as required.
Respectfully,
National
Coalition Against Racial Discrimination (NCARD)[1]
and Indigenous Peoples Rights Activists’ Network (IPRAN)[2]
Legal framework for Nepal’s Constituent Assembly
Elections 2013 and its implementation in relation to representation of
indigenous peoples in the forthcoming Constituent Assembly
The history
of Nepal's nation building is marked by a variety of challenges, among them social
exclusion, which has prevented indigenous peoples and other marginalized groups
to participate in and contribute to the country's development processes.
Indigenous
peoples, also known as indigenous nationalities (Adivasi Janajati in official language) in Nepal, are those ethnic groups or communities that “have their own mother tongue
and traditional customs, distinct cultural identity, distinct social structure
and written or oral history of their own”[3].
Fifty-nine ethnic groups officially listed as Indigenous Peoples make more than
one third of Nepal’s population. However, the official list is contested and
there are several groups that share in the history, characteristics and common
problems of Indigenous Peoples recognized in Nepal and elsewhere but not on the
list.[4]
Participation
of indigenous peoples in Nepal’s constitution writing process is one of the
major issues for promotion and protection of indigenous peoples’ rights within
a developing constitutional order in Nepal.[5]
In this context, on
12 February 2009 immediately after Constituent Assembly Elections 2008,
indigenous people and their organizations filed a writ petition with Nepal’s
Supreme Court alleging their exclusion from the constitutional reform process
in contravention of constitutional norms and Nepal’s international treaty
obligations.[6]
The writ
petition formally invoked provisions of International Labour Organization
Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries, United Nations Declaration on the Rights of Indigenous Peoples, and
the International Convention on the Elimination of All Forms of Racial
Discrimination, particularly article 5(c) which guarantees the right, without
discrimination of any kind to participate in elections and to take part in
government, and the conduct of public affairs, at any level. Further, UNDRIP
provides for the right of indigenous peoples to participate in decision-making
in matters which would affect their rights, through representatives chosen by
themselves in accordance with their own procedures as well as to maintain and
develop their own indigenous decision-making institutions.
The
discriminatory effect of sole reliance on the political party system
exclusively controlled by Bahun/Chhetri elites for indigenous peoples to
participate in constitution making process was compounded by the refusal to
register political parties that claim to represent indigenous peoples on the
basis of provision in Nepal’s Interim Constitution that prohibits a political
institution that may jeopardize social harmony on the basis of race, ethnicity,
religion or sect, the petition claimed.
While the petition had requested an interim Court order at the same time that was ignored, the State in response to the petition had argued that the petitioners’ arguments should be dismissed for failure to state a colorable claim and indigenous people were presently adequately represented in the Constituent Assembly irrespective of the manner by which they were selected and the party discipline conditions applied.
The State’s submission to the Court was accompanied by a number of affidavits, including one by then Constituent Assembly Chairperson, explaining that it was not possible to establish a separate committee on indigenous people within the Constituent Assembly and moreover, in 2009, he had already rejected the establishment of a separate committee on indigenous peoples.
While the petition had requested an interim Court order at the same time that was ignored, the State in response to the petition had argued that the petitioners’ arguments should be dismissed for failure to state a colorable claim and indigenous people were presently adequately represented in the Constituent Assembly irrespective of the manner by which they were selected and the party discipline conditions applied.
The State’s submission to the Court was accompanied by a number of affidavits, including one by then Constituent Assembly Chairperson, explaining that it was not possible to establish a separate committee on indigenous people within the Constituent Assembly and moreover, in 2009, he had already rejected the establishment of a separate committee on indigenous peoples.
However,
indigenous people had no say in choosing who would represent them in the
Constituent Assembly or in its various committees, since these decisions were
made by political parties without any reference to indigenous peoples’ right to
participate through their own freely chosen representatives. In addition, the
Government failed to propose an effective alternative that could otherwise
ensure indigenous peoples’ participation in political life and the
constitutional reform process.
The
Court repeatedly postponed hearings up to 21 times on the case after a
preliminary hearing on 1 March 2009 and submission by the Government the same
month until 6 January 2013. Meanwhile, indigenous peoples and their
organizations communicated the issue to the UN Special Rapporteur on the Rights
of Indigenous Peoples and also submitted a complaint to the Committee on the
Elimination of Racial Discrimination (CERD). In response, the
Committee and Rapporteur since 2009 had repeatedly called for establishment of
special mechanism to ensure effective participation of indigenous peoples and
obtain their free, prior and informed consent in constitution making process.[7]
Directive Order of the Supreme Court on representation of indigenous peoples in Constituent Assembly
After the Court heard arguments from both sides of the case on 6 January 2013, final decision of the Court on the case was again deferred for 6 times until 21 April 2013. By then, the Constituent Assembly had already been dissolved on 28 May 2012 after completion of even its extended term. Accordingly, the Court decision states that
“While the petition
concerning representation [of indigenous nationalities] in the Constituent
Assembly formed as per Interim Constitution of Nepal, 2007 following
Constituent Assembly elections in 2008 was sub-judice, the Constituent Assembly
was dissolved on 28 May 2012 after completion of its term. Hence, the Supreme
Court concludes that the writ has been purposeless and is annulled, as
conditions to issue a writ as per the demands in the petition do not exist.
However, the issues raised in the petition
regarding representation [of indigenous nationalities] in Constituent Assembly
seem contextual even in relationship to forthcoming Constituent Assembly
elections. Thus, regarding how the representation of socio-economically
backward and marginalized classes or communities including indigenous/nationalities
can be successful and effective, [the Court orders the defendants] to study and investigate international laws
including International Covenant on Civil and Political Rights, 1966,
International Covenant on Economic, Social and Cultural Rights, 1966,
International Labour Organization Convention No. 169 as well as set norms
used by civilized nations about and through discussions and consultations with
various affected groups about what arrangements are appropriate for successful
and effective representation of marginalized and backward classes including
indigenous nationalities as per the principle and aspirations of the
Constitution in the context of future Constituent Assembly. For this purpose, the Court decides to issue a directive
order in the name of the defendants to take necessary initiatives for required
amendments or revisions in the laws including Election to the Members of Constituent
Assembly Act, 2007, Regulation Relating to Election of the Members of
Constituent Assembly, 2007 and Constituent Assembly Regulation, 2007.”[8]
Following
the directive order of the Court, indigenous peoples and their organizations
have called on the Government of Nepal and its concerned agencies as well as
the political parties to amend the required laws as per the order, among other demands
in relation to Nepal’s Constituent Assembly 2013.[9]
Those demands have gone completely unheard.
Recommendations
This
communication is submitted to the European Union Election Observation Mission –
Nepal 2013, under the mandate and objectives of the Mission, with a view of
bringing to the attention of the Mission the failure of the Government of
Nepal, as described above, to adhere to its national and international legal
obligations to ensure effective representation and participation of indigenous
peoples and other marginalized groups in the Elections and following
constitution-drafting process through the Constituent Assembly.
Thus, we
request the Mission to immediately give consideration to this communication,
and the information therein, in its observation of the electoral processes and
reflect the inadequacy of the Government to fulfill its obligations for
formulating necessary legal framework and ensuring its implementation for
democratic elections. Further, we recommend the Mission to reflect the issue of
the communication in its comprehensive Final Report, including appropriate
technical recommendations for future elections.
[1] NCARD is a network
alliance of various organizations working against all forms of racial
discrimination in Nepal formed in follow-up to 2001 UN World Conference against
Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South
Africa. The alliance members are organizations and networks of indigenous
peoples, Dalits, Madhesis and other groups facing discrimination based on
descent, national or ethnic origin. It has been granted Special Consultative
Status with the United Nations Economic and Social Council (ECOSOC) in 2012. www.ncard.org.np
| www.facebook.com/NCARD.Nepal
[2] IPRAN is a network of
volunteer indigenous peoples' human rights activists working to assist
indigenous communities in Nepal to assert their rights and protect their lands
and identities. It supports the communities in their struggles by educating
them about their rights, building their advocacy skills, facilitating their
lobbying at national and international levels and disseminating their
information through different media. www.nepalindigenousissues.blogspot.com; www.indigenousissuesinasia.wordpress.com
[3]
National Foundation for Development of Indigenous Nationalities (NFDIN) Act,
2002
[4] Report by the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous peoples, James Anaya, Addendum – REPORT ON THE SITUATION OF
INDIGENOUS PEOPLES IN NEPAL, 20 July 2009, A/HRC/12/34/Add.3, Para 15
[5] Ibid. Para 52-58
[6] Read the full text of the writ
petition in Nepal at http://www.lahurnip.org/userfiles/dfile_29.doc
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