Dramatic progress in the integration and rehabilitation of the former Maoist combatants within the Nepalese Army has intensified the debate over the writing of our country’s new constitution. One result has been a pervasive demand for ethnic self-determination. Nepal has over one hundred recorded ethnic groups, and these and their organisations have been intensifying the pressure for an ethnic-based federation. This gives rise to some very important questions. To what extent can the concept of self-determination be useful in the current debate over the dissolution and re-creation of states and the protection of distinct groups be they cultural, religious or linguistic? How feasible can ethnic-federalist aspirations for self-determination be in a country like ours? How can the new constitution address the demands for ethnic self-determination without automatically engendering ethnic anger, suspicion and resentment?
Facet of human rights
The right to self-determination developed as an important facet of human rights relating to freedom, democracy and equality and was guided by international politics and interests. Through a form of external self-determination, many African and Asian countries successfully achieved decolonisation during the second half of the twentieth century. More recently, internal self-determination equally enabled the people of Kosovo and East Timor to decide their own destiny and system of governance. Therefore, in international law, self-determination is a concept by which a people are able to choose their form of governance and political system, achieving thereby their wider participation in the state’s decision-making process. This right of the people freely to determine their country’s political status does not, however, amount to a right to create a new state, nor, in a democratic society, does it permit secession.
In the Nepalese context, the right to self-determination must be seen as granting to its citizens the ultimate power to determine their own political status within the framework of the federation and to pursue their own economic, social and cultural development. It must equally be seen as granting power within the framework of the federation to those ethnic groups, who seek proper representation and participation in decision making, in power sharing, and, most importantly, in claiming sovereignty over the natural resources on a regional or local basis. It cannot, and should never, mean the granting of a right to secede based on people’s ethnicity.
Federalism is but one aspect of the broader question of self-determination: it offers equal rights to citizens regardless of their ethnicity - that is their race, language or religion. There is no single pure model of federation that is applicable everywhere. It is an institutional arrangement that reflects the aggregated will of the diverse ethnic communities that make up the federation. The constitution of any federation sets out the principles and interests that apply to all parties to it and, in addition, those that apply in particular to just some.
A federal political system, according to Professor R. Watts, ‘refers to a broad category of political systems in which there are two (or more) levels of government, thus combining elements of shared-rule through common institutions with regional self-rule for the governments of the constituent units’. A federation, therefore, comprises a number of states that agree to live and work together under one flag.
In a genuine federal system, local communities within the state are administratively empowered by the federation’s constitution to manage their own affairs, free of control from the centre. The local community, therefore, is mobilised and empowered to decide its future needs, and power is seen to ‘flow upwards … from the villages to the national capital’: the villages really do see the ‘exercise of direct democracy and self-governance’. In the Nepalese context, federalism must not be seen to divide the state into bits and pieces: it must be seen as power sharing in a more democratic and inclusive manner at all levels. Most importantly, it must make government more transparent, efficient and accountable in every sector in order to serve the common values and common interests of the people.
Professor D. Orentlicher argues that, while respecting pluralism within states, ‘liberal internationalists have largely disdained ethnic particularity as an organising principle of political legitimacy, emphasising instead liberal republican values of civic equality’. He goes on to say: ‘Global adherence to human rights principles in the post-war decades has affirmed a cosmopolitan faith in universal norms that would displace the parochial values of an obsolete nationalism’.
As we seek now to re-define and re-structure ourselves politically, socially and economically, we should aim to make our society more inclusive and accountable. For that we need a form of federalism that offers a genuine right to self-determination without in any way permitting the disintegration of our nation that would divide our people and break the well-maintained social harmony that has endured for centuries.
The purpose and function of a state’s constitution is to create order by defining how individuals, groups, population segments, even various structures within the state, relate to each other and interact with one another. Our forthcoming constitution must collectively serve as a solid political platform for all our people, based on social and ethnic harmony while recognising the rights of all communities within a structured federal system. A firm, bottom-up foundation for federalism and a genuine right to self-determination are the best means of satisfying all: when people take ownership of the political process, they are more satisfied with their system of governance. The constitution must be based on social harmony achieved through genuine united federalism. All human rights and freedoms should be well respected at all levels. There should be genuine redistribution and sharing of resources and an inclusive political process with fair participation by all. We need to change our laws and our policies in a progressive manner - to change our institutions, to change our society, to change our attitudes and ourselves.
As genuine federalism and self-determination are about representation, identity and choice, the future structure of our federation can be based on geography, density of population, or other considerations, but certainly not on ethnicity. We must ensure that every citizen, regardless of language, caste or creed, can in harmony share the fruits of the new Nepal.
Professor Graham Smith argues that whether or not a federal solution can work in a given jurisdiction will depend on a number of factors, not least the nature of the federal arrangement, ‘the fairness with which the system is operated by all parties concerned, and the degree of political maturity displayed by the leadership at both federal and provincial levels’.
Unity in diversity
The federal set up must deal with all subjects in an appropriate and justifiable manner so that unity in diversity can be maintained. Any individual or group that advocates a federation based on ethnicity must be discouraged. Ethnic politics and ethnic-federalism will take us nowhere, and we may all drown in the process. We desperately need more political dialogue aimed at creating mutual trust between the different segments of our society if the forthcoming constitution is to stand a chance of becoming the milestone in our country’s economic and social development that we all desire.
As we re-define our values for the 21st century, we need to show reality, practicality and vision. We need to remind ourselves that we have long been a proud and independent sovereign nation that has never been invaded: we are also one of the oldest members of the United Nations. We are proud of our social and cultural diversity, and we must ensure that it is maintained. Despite our differences, we have been able over centuries to unite as a peace-loving nation and to maintain social harmony. Our institutions can continue now to function well if we pursue sound and inclusive policies, if we promote good governance, and if, as a united people, we respect the rule of law. Let us pray that the new constitution will not become the Pandora’s Box.
(Dr. Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights law at Lancaster University, U.K, is a researcher in International Human Rights Law and an Advocate in the Supreme Court Nepal. He can be reached at email@example.com.)