Thursday, July 2, 2009

Minority report - Bipin Adhikari

The Kathmandu Post, July 02, 2009

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 above 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.

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