UNICEF Nepal Working Paper Series
WP/2015/006
POST-CONSTITUTIONAL NATION BUILDING
IN NEPAL: EQUAL CITIZEN, MARKET, SOCIAL
PROTECTION, & THE RULE OF LAW
Dr. Surendra Bhandari
© United Nations Children's Fund (UNICEF), Nepal, 2015
Social Policy and Economic Analysis Section
UN House, Pulchowk, PO Box 1187
July, 2015
This is a working document. The reviewer and editor of this series is Amjad Rabi, Chief of Social Policy
and Economic Analysis Section, UNICEF Nepal. He can be reached at [email protected].
The findings, interpretations and conclusions expressed in this paper are those of the author and do not
necessarily reflect the policies or views of UNICEF or of the United Nations.
The text has not been edited to official publication standards and UNICEF accepts no responsibility for
errors.
The designations in this publication do not imply an opinion on legal status of any country or territory, or
of its authorities, or the delimitation of frontiers.
For more information on the series please contact Sarina K.C., Knowledge Management Focal Person,
UNICEF Nepal at [email protected].
UNICEF Nepal Working Paper Series
WP/2015/006
POST-CONSTITUTIONAL NATION BUILDING
IN NEPAL: EQUAL CITIZEN, MARKET, SOCIAL
PROTECTION, & THE RULE OF LAW
Dr. Surendra Bhandari
Associate Professor of Law
Ritsumeikan University
Kyoto, Japan
- Surendra Bhandari
Presented at a Talk Program Organized by Himal Innovative
Development and Research in Collaboration with UNICEF Nepal
Country Office on February 27, 2014, Kathmandu, Nepal
Contents
Post-Constitutional Nation Building in Nepal: Equal Citizen, Market, Social
Protection, & the Rule of Law ................................................................................................... 1
Abstract .........................................................................................................................................2
1. Introduction: Nation and Belongingness ...................................................................................3
2. Historical Processes of Nation Building ....................................................................................4
3. Nation Building in Nepal ..........................................................................................................5
3.1 Formative Stage of Nation-Building ......................................................................................................... 7
3.2 Democratic Stage of Nation-Building...................................................................................................... 11
3.3 Post-National Stage of Nation-Building.................................................................................................. 20
4. Challenges and Prospects of Nation Building in Nepal............................................................ 23
4.1 Equal Citizens .................................................................................................................................. 24
4.1.1 Autonomy: Citizenship and Self-Determination ..................................................................................... 25
4.1.2 Liberal Democracy and Human Rights ................................................................................................ 28
4.2 Social Protection: Market and Equity .................................................................................................... 30
4.3 The Rule of Law and Justice ................................................................................................................. 32
5. Conclusion............................................................................................................................... 35
Bibliography ................................................................................................................................ 38
Post-Constitutional Nation Building in Nepal: Equal
Citizen, Market, Social Protection, & the Rule of Law
- Surendra Bhandari1
“Article 4(1) Nepal is a multiethnic, multilingual democratic independent indivisible
sovereign Hindu and Constitutional Monarchical Kingdom . . . Article 27 (2) His
Majesty is the symbol of the Nepalese nationality and the unity of the Nepalese
people.”
- Constitution of the Kingdom of Nepal, 1990.
“Article 27(2) of the Constitution of the Kingdom of Nepal, 1990, recognizes His
Majesty as the symbol of the Nepalese nationality and the unity of the Nepalese
people. Under a democratic constitution, ‘His Majesty’ is simply an individual, and in
that capacity, His Majesty cannot be the symbol of nationality and unity of the
people. An anachronistic provision like this cannot be acceptable. Thus, it should be
removed. In a democratic society, only multi-party democracy and the democratic
constitution can be regarded as the symbol of the national unity.” [My translation]
- Madan Bhandari2
“Having multiethnic, multilingual, multi-religious and multicultural characteristics
with common aspirations and being united by a bond of allegiance to national
independence, integrity, national interest and prosperity of Nepal, all the Nepalese
people collectively constitute the nation.”
- Article 3 of the Interim Constitution, 2007,& Article 3 of the Draft Constitution,
2015.
1. Dr. Bhandari works for Ritsumeikan University, Kyoto, Japan as an Associate Professor of Law. He can be
contacted at: [email protected] / [email protected] .
2. (Bhandari Madan., 1990).
1
Abstract
This paper explains nation building as the process founded in four key propositions:
institutionalization of idea of equal citizens, building market, realization of universal social
protection, and the entrenchment of the rule of law. These four propositions are key for addressing
the issues of identity, ethnicity, clash of civilizations, ending gender discrimination, solving the
problems on citizenship issues, and ensuring a just and inclusive society. In absence of these
propositions a just and inclusive society cannot exist. Since the concept of nation has undergone a
sea change from its historical tribal and ethic belongingness to the idea of allegiance subsisted in the
concept of sovereignty, these four propositions provide the grounds for building a liberal
democratic nation. Especially after the eighteenth century, the idea of sovereignty became so
powerful that created modern states all over the world. The modern states called in different
epithets—nation or state or nation-state—emerged with the idea of sovereignty, in turn, producing
the concept of civic identity or the identity of citizenship at the core of belongingness. Though, the
idea of equal citizenship alone could be a weak link of the chain in the absence of liberal democracy.
Thus, these four propositions with their historical connections with the idea of sovereignty have
been fortified in the post-war era as the foundations of modern democratic states. Moreover, today,
nation building has developed further in the context of global constitutionalism. Against this
background, this paper discusses these four propositions as the foundations of a modern state in the
light of post-constitutional nation building in Nepal.
2
1. Introduction: Nation and Belongingness
Conceptually, a nation has no singular and uniform premise. It is often explained either from an
exclusionary paradigm or from an inclusionary paradigm. Under the exclusionary paradigm, a nation
is understood in the purity of breed, religion, language, or culture. As a result, it excludes people
from other breeds, languages, and cultures to be accepted within the framework of a nation.
Consequently, it seeks the values developed on the singular backbone of breed, religion, language,
and culture as the governing explanatory tools of a nation. Understandably, the exclusionary
paradigm implies to both territorial and non-territorial contexts of belongingness. As a territorial
concept, it harvests a sense of belongingness united by a common descent shaped by a historical
living in a specified territory, which in its pure form denotes to a tribal relationship. As a nonterritorial concept, the idea of belongingness emanates from the cultural, religious, linguistic, and
other descriptions of affinity beyond any territorial boundary. By transporting belongingness at the
core of the explanation of a nation, exclusionary narratives have historically subsisted within a
framework applied as a standard of distinguishing self from others. With the progress of human
civilization from a tribal belongingness to a global belongingness the exclusionary narratives have
undertaken a sea change ushering a legitimate space for an inclusionary or civic belongingness
expressed in the forms of either as citizenry belongingness under a sovereign state or beyond
borders as a member of the global community. With these developments, the concept of a nation
has permitted an inclusionary description.
With an inclusionary belongingness, individuals prioritize legal political relationships and
cooperation among each other beyond the tribal and ethnic descriptions. Inclusionary
belongingness, thus, articulates a new form of political identity, i.e., a civic identity as the expression
of ‘we equal citizens’ belonging in a sovereign political entity. Despite this fact, in the post-1990
global order, civic identity has been strained due to some efforts trying to transport ethnicity as a
description of belongingness. Modern states almost everywhere in the world are facing this
dichotomy as a challenge in managing an ethnic identity by cohabiting it within the framework ofa
civic identity. Especially, developing and least-developed countries have been trapped by this
challenge. As one of the leading cases in this regard, the Nepalese political dynamics is painstakingly
involved in defining and addressing this challenge. In this paper, I would primarily like to examine
the Nepalese issue of nation building, which is politically subtle and socially sensitive, but
constitutionally and politically imperative to be addressed.
This paper is divided into five sections. This introductory section is followed by the examination of
historical processes of nation building in section 2. Section 3 examines the three phases of nation
building in Nepal. Section 4 discusses on the challenges and solutions of nation building in Nepal.
The final section, i.e., section 5 summarizes the main arguments and concludes the paper.
3
2. Historical Processes of Nation Building
Market and universal social protection are achievable irrespective of polarization in political systems.
China is an example (CDRF, 2012).3 Despite the fact, authoritarian regimes have historically failed to
ensure the concept of equal citizens and the rule of law; which are possible only in a democratic
state. To realize the liberal democratic state as the highest form of nation and the aim of nation
building(Fukuyama, 1992; Fukuyama, 1989),4the evolutionary stages of nations from a tribal system
of social organization and power relationships to a sovereign state and the member of global society
should be unerringly appreciated (Furtado, 2014; Gat, 2013; Nehru, 1941; Wells, 1922). Further, to
understand the modern nation building process in Nepal, three different forms and categories of
nation-building—formative, democratic, and post-nation stages—have been examined. In short, this
paper explains nation building in Nepal as a process conducive for equal citizen, building market,
universal social protection, and the rule of law, which in their totality are achievable under a system
of liberal democracy.
The basic features of historical development of the concept of a nation might be instructive to
analyze and address the dichotomy between civic identity (inclusionary identity) and ethnic, tribal
and other identities (exclusionary identities). Inclusionary identity underscores the idea of treating
each individual as equal citizen irrespective the distinction of race, color, gender, language, religion,
and ethnicity. Whereas, exclusionary identity focuses on human cooperation and relationships based
on race, color, gender, language, religion, and ethnicity, among others. Today, the modern but weak
states are fraught with this dichotomy; especially in this age of universalism, the demands for
exclusionary identities are not only in rise but have put states under strain. Managing this dichotomy
is certainly a new challenge to modern sovereign states, including for Nepal. Among others, the
future course of nation building in Nepal seems to be deeply affected by this dichotomy. The
following chart shows the historical progression of nation building in general.
3. On pages xxx-xxxi, the report argues that, “Aimed at China as it will be in 2020, this report introduces a new
concepts in social welfare systems. It incorporates two main innovations. First, it emphasizes universal access to the
system. Second, it highlights the ‘development-oriented features of the system. Universal access is one of the most
significant manifestations of fairness or equity in the social welfare system envisioned for China in the future. The most
prominent feature of the system is full coverage of 1.3 billion Chinese people, including in particular the vast number of
rural residents . . . The objective is to ensure that all people across the country share in the benefits of socioeconomic
development.”
4. On page xi Fukuyama argues that, “. . . a remarkable consensus concerning the legitimacy of liberal democracy as a
system of government had emerged throughout the world over the past few years, as it conquered rival ideologies like
hereditary monarchy, fascism, and most recently communism. More than that, however, I argued that liberal democracy
may constitute the ‘end pint of mankind’s ideological evolution’ and the ‘final form of human government’ and as such
constituted the ‘end of history’.”
4
An unsophisticated body of people united by breed and
descent and sharing a common inhabitation appears in
its purity at the tribal stage, which in the course of its
expansion had opened space for inter-tribal cooperation
that transformed it into an ethnic belongingness. Being
mired with almost the same defects of the tribal society,
the ethnic belongingness failed to assume cooperation
among inter-ethnic groups. The need to address its
defect sun locked a door for a nation, a higher form of
political organization. Nation as a political entity also
established political supremacy over other exclusionary
belongingness, including religion. Although, history has
witnessed nations competing for expanding territory,
which escalated from local conflicts and wars to
hegemonic imperialistic dominations across the globe
(Young, 2015).
Chart I: Changing Nature of the Concept of Nation
Finally, with the emergence of the concept of a sovereign state, the idea of belongingness previously
centered on breed, descent, and ethnicity has transformed into legal-political relationships as the
standard of cooperation. More conceivably, this transformation has redefined the whole concept of
a nation and belongingness inspired by the concept of a civic identity or equal citizens. Among
others, the challenges of nation building in Nepal are centered on creating conducive social, political,
economic, and legal environments for equal citizens. Since the historical practices of dividers—caste,
gender discrimination, hierarchical society, and other justice problems—the post-constitutional
phase of the Nepalese political development seems to be centered around the issue of nation
building.
3. Nation Building in Nepal
Nation building in Nepal needs to be commonly understood, shared, and institutionalized.
Inopportunely, the concept of nation building in Nepal has proved to be endlessly contentious, like
many other social and political issues. Currently, on the issue of nation building in Nepal, there seem
to be three broad paradigms floated in the political discourses: identity-based nation building,
restructuring the state from a unitary to a federal structure, and democratic nation building. The
identity based nation building shares the features of an exclusionary belongingness. The democratic
nation building incorporates the idea of inclusionary belongingness. The restructuring of the
Nepalese state from a unitary to a federal setup may go either way or can be a hotchpotch of both
exclusionary and inclusionary belongingness. The constitution making process in Nepal from 20082015 has been deeply affected by the controversies between these three paradigms. The 2015 Draft
of the Constitution has made some efforts to accommodate all these three paradigms. But at the
same time, the Draft has been criticized for being inadequate in managing these paradigms.
5
Conceptually, nation building is a sociological, political, and constitutional process. However, it is
not a one-time event, rather it is a continuous process beginning from the stage of gaining a modest
socio-politico organization to the stage of securing sovereignty of a state and the institutionalization
of constitutionalism in complementarily with the system of post-constitutionalism. In this
continuum, the nation building process in Nepal seems to be far from being accomplished. Indeed,
it is undergoing a transformation from one political stage to another, i.e., from an authoritarian to a
democratic stage by adopting the idea of constitutionalism. The continuum often moves from a
lower level of nation building to a higher level of nation building as shown in Chart II below.
In the formative phase, nation building might incorporate three of the eight features listed in Chart
II. In this stage, nation building secures sovereignty, establishes a centralized state, and maintains a
sense of belongingness as a melting pot. In this phase, mainly being fraught with centralizing
political tendency, nation building process might not incorporate the features of a democratic state.
The formative stage of nation building started with the unification of Nepal in 1775, has also shared
these three characteristics.
In a democratic phase, nation building combines all eight features shown in Chart II. The
democratic phase of nation building in particular heightens the sense of belongingness with
universal ideals applied and practiced on the principle of non-discrimination, except in the cases of
affirmative actions. Nevertheless, elitist interests may provoke ethno-symbolic and primordial
pressures mounting as a challenge to civic belongingness. If such pressures could not be managed
on the ideals of equality of citizens, universal social protection, and justice, the pressures may turn
into a deeper conflict. Disconcertingly, in this phase of democratic nation building, Nepal is facing
the challenges arising from the dichotomy between ethnic identities and civic identity. At the same
time, Nepal has also entered into the post-nation phase of state building entrenched in the idea of
international constitutionalization characterized by the features of post-constitutionalism (Bhandari
S., 2015; Kjaer, 2014; Bhandari S., 2013). In this post-constitutional phase, states engage in
harmonizing their domestic orders to the demands of the international order. As a result, the
traditional concept of sovereignty transforms into a post-national sovereignty.
The following chart shows three phases (Formative, Democratic, and Post-Nation State) and eight
features (sovereignty, centralizing state, belongingness as a melting post, market, civic state, social
protection, constitutionalism as the highest form of the rule of law, and post-constitutionalism) of
nation building. Sovereignty, a central government, and a sense of belongingness are the key and
minimum pre-conditions of a modern nation-state. Other five features suggest the higher and
stronger level of nation building, which are mostly institutionalized in liberal democratic states.
Today, the case of Nepalese nation building is critically suffering from understanding and
appreciating the profound importance of these eight features as the basis of nation building.
6
Chart II: Phases and Features of Nation-Building
Democratic
Post-Nation
State
Formative
Phases of
Nation
Building
Features of Nation Building
Sovereignty
Centralizing State
Belongingness as a
Melting Pot
Market
Civic State
Social Protection
Constitutionalism
Post-Constitutionalism
3.1 Formative Stage of Nation-Building
Broadly, offset by the first three basic features, the formative stage of nation building marks the
beginning of a modest form of civic relationships with a diffident description of equality before the
law. It does, however, lack other five features: a fair and competitive market, a civic state founded
on the idea of equal citizens, distribution of equity through the system of universal social protection,
constitutionalism as the highest form of the rule of law at the domestic level, and the adoption of
post-constitutionalism as the baseline of international relations. On the other hand, a democratic
phase of nation building is a phase that incorporates all these eight features of nation building.
Moreover, it also redefines the role of state and citizens and adopts a bottom up approach with the
minimum level of centralizing tendencies.
Under international law, a sovereign state exists when it retains four basic criteria of statehood: a
permanent population, a defined territory, a government, and a capacity to enter into international
relations.5 Most of these features of a sovereign state were found in the ancient and medieval Nepal.
However, with the rise of principalities and political fragmentation during the medieval period,
Nepal lacked the feature of a central government (Grissom, J., 2011). In the absence of a central
government, the ability of Nepal to enter into international relations was also diminished. Thus, the
event of the unification of Nepal marks a distinct feature in achieving all of these four criteria of
statehood (Sharma, 2008).6 On the unification of Nepal, King Prithivi Narayan Shah developed a
5. See Article 1 of the Montevideo Convention on Rights and Duties of States, 1933. See also the Opinion No. 1 of the
Arbitration Commission of the European Conference on Yugoslavia, Bull. EC, 7/8 (1991). In its opinion the
commission mentions that, “. . . the State is commonly defined as a community, which consists of a territory and a
population subject to an organized political authority.”
6. Professor Sharma, on page 475 writes, “Nepal’s political boundary after unification became more durably fixed,
receiving international recognition from China in 1792 and from the British East India Company after the Treaty of
Sugauli in 1816.”
7
policy to accommodate all ethnic communities and secure their sense of unity. His famous policy
(Dibya Upedesh) acknowledges ‘Nepal as a common garden of four castes (jats) and thirty six
ethnicities (varnas).’7 It gives the indications that respect, harmony, and tolerance were assumed as to
be the baseline of community relationships, despite a few serious aberrations during the unification
process (Kirkpatrict, 1811).8 In his policy, Prithivi Narayan Shah also emphasizes the fact that nation
building could only be accomplished collectively by all castes and ethnicities (Dibya Upedesh).
In modern Nepal, the idea of a centralized state commenced from the time of Prithivi Narayan
Shah, which played a strategic role in creating the grounds of belongingness; though, his policy has
been severely criticized by some scholars for not being inclusive. The main arguments tendered by
these scholars suggest four notions. First, Hinduism has been imposed on ethnic communities in the
name of nation building. Second, the Nepali language and culture has also been imposed on the
ethnic communities in the name of unity. Third, in the name of political integration Chettris and
Bahun (especially the pahadiyas or parbates) have ruled the country as a ruling class by excluding the
janjatis (ethnic communities) from political participation. Fourth, in the name of reform, the land of
janjatis (especially of the Kipat land) has been nationalized by the State. In short, these four
arguments can be divided into two categories: imposition theory, and exclusionary theory.
Remarkably, in the post-1990 democratic period, some scholars projected the unification itself as the
source of Hinduization(Gurung, 2008; Lawoti, 2005). Cogency of their claim comes from the
statement of King Prithivi Narayan Shah himself, who stated Nepal as ‘a real Hindustan,’ a land of
Hindus (Dibya Upadesh).9 There are a number of explanations about the origination of the concept
of Hindu, Hindustan, and Hinduism. One of them is related to geographical connotation indicating
all people living in the Hindu Kush region, where both Caucasians (Indo-Aryans) and Mongols
7. See Dibbya Upadesh of King Prithivi Narayan Shah, translated into English by the Law Commission of Nepal,
available at <http://www.lawcommission.gov.np>. The Law Commission translation uses the terms jat as castes and
varnas as creeds in English. Prayag Raj Sharma describes jat as caste and jati as ethnic groups, whereas varnas as the caste
order. Harka Gurung uses the terms jat as caste and jati as nationality. Bhattachan uses the terms four varnas and thirtysix castes, which seems apparently incorrect. Looking at the Hindu caste structure divided into four castes: Brahamin,
Chettri, Vaishya, and Sudra, the term of four Jat used Prithivi Narayan Shah denotes to four castes. Whereas, the term
thirty-six varnas used by Prithivi Narayan Shah could be best reflected in terms of covering the multi-ethnic structure of
the Nepalese society.
8. Kirkpatrick on page 164 writes, “Kirthipoor occupies the summit of a low hill, about three miles west of Patn; it
was at one time the seat of an independent prince, though at the period of Purthi Nerain’s invasion, it was included in
the territory of Patn. The reduction of this place caused the Ghoorkhali so much trouble, that in resentment of the
resistance made by the inhabitants, he barbarously caused all the males he captured in it to be deprived of their noses.
We came to the knowledge of this fact in consequence of observing among the porters who transported our baggage
over the hills, a remarkable number of nose less men, the singularity of the circumstance leading us to inquire into the
cause of it.”
9. The Law Commission translation of Dibya Upedesh reads as, “This is the real Hindusthan (place of Hindus).” This
statement poses a serious research question; how could a newly unified state survive on the Hindu value system? The
new Kingdom, transferred from Gorkha to Kathmandu in fact needed some catching unifying ideas; otherwise, the
unification could not survive. One of the clear facts that existed was that the Newars in Kathmandu valley were Hindus
and Buddhist. However, Buddhism was traditionally considered as one of the schools of Hinduism. But it is not easily
understood that if other groups (ethnic groups) were not Hindus, how could they support the land of Hindus as a
unified nation? Hinduism is divided into different schools (from liberals’ agnostic & atheist to fundamental spiritualists
schools of thought. Perhaps, with all these variations, despite jats and varnas, all Nepali might have felt included in the
Hindu system of life, in one or the other way.
8
dwelt, among others. Historically, among the neighboring countries of Nepal, China was primarily
land of people from Mongolian origin, whereas Caucasians were very negligible in numbers. On the
other hand, India was primarily the home of Caucasians (Indo-Aryans), with Mongols in minority.
In Nepal, neither the Aryans nor the Mongols were in a dominating position; both Aryans and
Mongols lived together in cooperation. In this context, it would not be uncommon for Prithivi
Narayan Shah to recount Nepal as the real Hindustan to denote as a home for both Indo-Aryans
and Mongols, since it was a homeland of people from different races and ethnicities living together.
Also from a religious perspective, Hinduism was not a dogmatic and static religion in its origin and
development. It was a way of life, encompassing a number of schools of thought from atheist to
spiritualists (Lipner, 2010; Chaudhuri, 1979).10 From this perspective too, Prithivi Narayan Shah
should have used the term ‘a real Hindustan,’ to narrate the unified land as the true homeland of
different cultures, beliefs, and social systems, which Nepal truly is.
Some scholars argue that the ruling class interpreted the ethnic policy of Prithivi Narayan Shah as a
“source for the unity of language, culture, politics, and economy” (Bhattachan, 2013). Rajendra
Pradhan explains Hinduization as ‘parbatiyasition’, that is, the spread of the parbatiya culture—the
Nepali language and Hindu religion—through the migration of parbatiya (Chettris and Bahuns in
particular) across the country. Mr. Pradhan portrays this process as an imposition of culture and
subordination of communities, though he also concedes the natural process of accommodation and
assimilation. Further he writes, “It can thus be generally said that while the Tibeto-Burmans give
Nepal its extraordinary demographic diversity, the Indo-Aryans have provided the connections that
have bound the country together as one” (Pradhan, 2010).
In their formative stage, all over the world, sovereign states were generally directed to acquire better
security and more opportunities for trade and business, but often at the cost associated with
accommodation, assimilation, and integration, which sociologists and political scientists including
Karl Marx,11 Max Weber,12 and Robert Park13acknowledge as regular and essential. The centralizing
10. Pipner cites a passage from Chaudhuri, which reads, “Hinduism can be described as many religions . . . and it also
pervades Hindu life as lived in the world in every nook and cranny . . . Despite its all-too-obvious inconsistencies,
Hinduism is one whole. Even those features in it which seem to have no connection with religion, as understood today,
stem from its basic character as natural offshoots . . . Hinduism differs fundamentally from Christianity in this, that for
its followers it is not an alternative to the world, but primarily the means of supporting and improving their existence in
it . . . Salvation is never the object of the religious observances and worship of the Hindus.”
11. See generally, Karl Marx, A Contribution to the Critique of Political Economy (Chicago, Charles H. Kerr & Co., 1903); See
also J. Winternitz, Marxism and Nationality, p. 7 (London, Lawrence & Wshart Ltd., 1946); See Karl Marx& Frederick
Engels, Manifesto of the Communist Party,Kindle Location 58 (New York Labor News Co., 1908, Kindle Edition). The
Manifesto reads, “The workingmen have no country. We cannot take from them what they have not got. Since the
proletariat must first of all acquire political supremacy, must rise to be the leading class of the nation, must constitute
itself the nation, it is, so far, itself national, though not in the bourgeois sense of the word.”
12. See Max Weber, Economy and Society 387 (Guenther Roth & Claus Wittich eds., New York, Bedminster Press, 1968).
On page 387, Weber observes that, “The question of whether conspicuous racial differences are based on biological
heredity or on tradition is usually of no importance as far as their effect on mutual attraction or repulsion is concerned . .
. The more or less easy emergence of social circles in the broadest sense of the word may be linked to the most
superficial features of historical accidental habits just as much as to inherited racial characteristics. That the different
custom is not understood in its subjective meaning since the cultural key to it is lacking, is almost as decisive as the
peculiarity of the custom as such. . . . The original motives or reasons for the inception of different habits of life are
9
and integrative tendencies of sovereign states often display the apparatuses of coercion and
voluntarism. In Nepal too, from the inception of unification to the panchayati era, both of these
apparatuses had been manifested in different forms and facets to address the challenges of
disintegration and internal conflict. Without any exceptions, each modern sovereign state across the
globe has invariably fashioned loyalty through coercion and voluntarism by adopting a system of law
at the formal level and contextually with a unifying language, culture, and religion at the societal
normative level (Manent, 2006).
However, also under the formative stage of nation building in Nepal, different languages, cultures,
and religions had been permitted to practice. Nevertheless, at the national level, the Nepali language
and Nepali culture progressed gradually and were also imposed to a certain extent. Had the Nepali
language and culture not succeeded as the unifying factors, the need of the day would substitute
them with another language(s) and culture(s) serving the same unifying purpose. In one or another
way, the growth of a national language and a national culture considerably projects as the universal
features and tendencies of nation building process Perhaps, the policy imperatives of those days
could be best implied in the words of historian H. G. Wells, that “. . . institutions, customs, and
political ideas grow up slowly, age by age, no man foreseeing” (Wells, 1922: 451).
However, at its worst, the Ranas not only austerely legitimized the caste system but also applied
penal law discriminatorily among different caste hierarchies under the National Code of 1854
(Muluki Ain, 1910 B.S.). With the abolition of the Rana regime, it was naturally expected that such
discriminatory and exclusionary policies and practices would end. The new National Code of 1964
(Muluki Ain, 2020 B.S.) indeed ended the discriminatory application of penal law and to a large
extent also upheld the equal protection of law. Nevertheless, the gaps between law and social
practices continued at the prejudice and disadvantage of the dalit community. Further, the Panchayati
Constitution of 1962 turned Nepal into a Hindu State.14 Conversely, Mahendra Lawoti considers
monarchy including the autocratic regime of Gyanendra more inclusive than the mainstream
democratic politics. Lawoti writes, “. . . the monarchy has proven to be more inclusive than the
forgotten and the contrasts are then perpetuated as conventions.” At 389, Weber observes that, “We shall call ethnic
groups those human groups that entertain a subjective belief in their common descent because of similarities of physical
type or of customs or both, . . . This artificial origin of the belief in common ethnicity follows the pattern of rational
association turning into personal relationships. If rationally regulated action is not widespread, almost any association,
even the most rational one, creates an overarching communal consciousness; . . .”
13. See Robert E. Park and W. I. Thomas, Participation and Social Assimilation, in Kimball Young ed., Source Book For
Social Psychology, pp.47-53, (New York, A.A. Knopf, 1927).
14. See Among the six constitutions so far promulgated in Nepal, the word Hindu does not appear in the 1948, and
1959 Constitutions. Nevertheless, the 1959 Constitution in its Preamble and Article 1(3) designates the King as a Hindu
King. In particular, the 1962 Panchayati Constitution under Article 1(3) clearly stipulates Nepal as a ‘monarchical Hindu
state.’ The 1990 Constitution under Article 4(1) provides that, “Nepal is a multiethnic, multilingual, democratic,
independent, indivisible, sovereign, Hindu and Constitutional Monarchical Kingdom.” The Interim Constitution, 2007,
for the first time ended the concept of Hindu state by replacing it with a secular state. Article 4(1) of the 2007
Constitution provides that, “Nepal is an independent, indivisible, sovereign, secular, inclusive and federal, democratic
republican state.”
10
major mainstream political parties.”15 Further, he claims, “. . . political opportunities emerged for
marginalized groups in 2002, when the King usurped power.”16
Understanding and interpreting the nation building process as being more inclusive during the rule
of King Gyanendra and the panchayati monarchical system, and being regressive during the post1990 democratic phase, demands no proof to show that how such faulty perspectives are mired in a
purely elitist interests. The fact that during the formative phase of nation building in Nepal, different
cultures, religions, and languages were not banned, rather freely practiced all over the country;
however, at the same time Nepali language and Hindu culture were both imposed as well as
voluntarily adopted for social integration. Under a democratic phase of nation building, questions
have been raised how should the issue of language, culture, and religion be treated. In other words,
how should the multiethnic, multicultural, and multi-religious fabric of the Nepalese society be
managed and promoted? Could it be practically possible to manage the administrative, judicial, and
social interaction and communication without having a uniform official language?
3.2 Democratic Stage of Nation-Building
With its intrinsic features, the democratic stage of nation building distinguishes itself qualitatively
from the formative stage of nation building both on a formal and a functional level. In the post1990 era, most of the features of a democratic nation building started to develop, but were starkly
missing a few important features, which were criticized from all sections of society. Those criticisms
commonly suggest the deficiencies in the nation building process aggravated by the widespread
practices of the imposition and exclusionary theories.
The idea of a Hindu state, embodied in the formal structure of the state with a depreciatory
reasoning attached since the Rana period, culminated in the panchayti policy of ‘Our King, our
country; common language, common attire,’ was earnestly needed to be changed substantially, but
somehow persisted in the post-1990 era too. Nevertheless, the fear of deviation from not practicing
the culture and traditions of the King had comfortably been eased in the post-1990 era. Many ethnic
groups from Mongol communities boycotted festivals like Dashain and Tihar, declaring those
festivals as intrinsic parts of the Aryan culture. Nevertheless, some ambivalence existed there. For
example, the powerful ethnic leaders who used to advocate boycotting the Aryan culture at the
societal level, used to receive dashain tika from the King (Hangen, 2013). Moreover, the Aryan
community accepted these criticisms and did not question at all. The post-1990 era also saw the
breakdown of the ‘common attire’ panchayati policy. The legitimization of a ‘Hindu Kingdom’ by the
1990 democratic constitution existed disgracefully, which ignored the idea of the separation of
politics from religion. As a result, not only ethnic communities, but also Chettris and Bahuns
condemned the idea of the ‘Hindu Kingdom’ that had conceptually eroded the ideals of a civic state.
15. SeeMAHENDRA LAWOTI, TOWARDS A DEMOCRATIC NEPAL: INCLUSIVE POLITICAL STRUCTURE FOR A
MULTICULTURAL SOCIETY 317 (New Delhi, Sage Publication, 2005).
16. See Susan Hangen & Mahendra Lawoti, Nationalism and Ethnic Conflict in Nepal, in NATIONALISM AND ETHNIC
CONFLICT IN NEPAL 17 (Mahendra Lawoti & Susan Hangen eds., Routledge, 2013).
11
Finally, with the establishment of a secular state by the 2007 Interim Constitution17 and also
legitimization of a secular state under the proposed Draft Constitution,18 the major issues of
imposition have finally been addressed at the formal structural level.
Despite embracing the conceptually all-encompassing policy of a ‘nation’19 by Article 2 of the 1990
Constitution, it was finally associated with monarchy as the uniting factor of the Nepalese nation
under Article 27(2).20 Moreover, its language policy also became adversely contested because of its
inconsistencies in defining the relationship between an official language and a national language. For
example, Article 6 of the 1990 Constitution reads as follows:
“(1) The Nepali language in the Devanagari script is the language of the nation of Nepal.
The Nepali language shall be the official language. (2) All languages spoken as the
mother tongues in the various parts of Nepal are the national languages of Nepal.”
For the first time in Nepal, the 1990 Constitution had recognized all mother tongues as the national
languages of Nepal. It had also enshrined rights to the ethnic communities in regard to preservation
and promotion of their languages, scripts, and cultures.21 Further, it had also constitutionalized the
right to educate children in their mother tongue ‘up to the primary level’.22 Barring the clause ‘up to
the primary level’ the linguistic model provided by the 1990 Constitution marks a qualitative
progression compared to the panchayati language policy. Instead of welcoming these positive
developments, primordial arguments resurfaced calling these developments regressive moves for the
continuation of the imposition of Nepali language as the official language of the country.23 At this
point, a question arises that if the language model postulated in Articles 6 and 18 of the 1990
Constitution was regressive and based on the same old idea of imposition theory, what alternative
model would be the most desirable and practically efficient one? The 2007 Interim Constitution of
Nepal and the 2015 Draft Constitution have addressed this question by revising the language of the
1990 Constitution with some substantive improvements. Articles 524 and 1725 of the 2007 Interim
17. Article 4 of the Interim Constitution, 2007, recognized Nepal as a secular state.
18. Article 4 of the Draft Constitution of Nepal, 2015, has recognized Neal as a secular state.
19. See Article 2 of the Constitution of the Kingdom of Nepal, 1990, which reads, “Having common aspirations and
united by a bond of allegiance to national independence and integrity of Nepal, the Nepalese people irrespective of
religion, race, caste, or tribe, collectively constitute the nation.”
20. Article 27(2) of the Constitution of the Kingdom of Nepal, 1990, provides that, “His Majesty is the symbol of the
Nepalese nationality and the unity of the Nepalese people.”
21. See Article 18(1) of the Constitution of the Kingdom of Nepal, 1990, which reads, “Each community residing
within the Kingdom of Nepal shall have the right to preserve and promote its language, script, and culture.”
22. See Article 18(2) of the Constitution of the Kingdom of Nepal, 1990, which reads, “Each community shall have
the right to operate schools up to the primary level in its own mother tongue for imparting education to its children.”
23. See generally DFID & The World Bank, Unequal Citizens: Gender, Caste and Ethnic Exclusion in Nepal (2006); see
also MAHENDRA LAWOTI, TOWARDS A DEMOCRATIC NEPAL, supra note.
24. See Article 5 of the Interim Constitution of Nepal, 2007, which reads. “Language of the Nation: (1) All languages
spoken as mother tongues in Nepal are the languages of nation. (2) The Nepali Language in Devanagari script shall be
the official language. (3) Notwithstanding anything contained in Clause (2), nothing shall be deemed to prevent the using
of any language spoken as the mother tongue in a local body and office. The State shall maintain records by translating
the languages so used in the official language.”
25. See Article 17 of the Interim Constitution of Nepal, 2007, which reads, “Right relating to education and culture: (1)
Every community shall have the right to get basic education in its own mother tongue, as provided in law. (2) Every
12
Constitution and Articles 6,26 7,27and 3728are qualitatively advanced and inclusive compare to Articles
6 and 18 of the 1990 Constitution. The following advances are noteworthy. They are:
First, Article 5(3) of the 2007 Constitution and 7 (2) of the Draft Constitution provide opportunities
to use languages other than Nepali language as the official language of the provinces. This
development has opened the door for different mother tongues to retain official status at the
provincial level. With this transformation, out of 123 mother tongues in Nepal, a few regionally
dominant mother tongues will have a chance to be used as the official language at the provincial
level.
Second, the right to get education ‘up to the primary level’ in mother tongues contained in Article 18
(2) of the 1990 Constitution has been replaced by a ‘right to receive basic education’ in mother
tongues under Article 17 (1) of the 2007 Constitution. The Draft Constitution has further expanded
this right. Article 36(5) of the Draft Constitution ensures that each community shall have the right to
obtain school level education in mother tongues, and also to open schools and educational
institutions.
These developments are yet to be permanently institutionalized. Nevertheless, the model adopted by
the Draft Constitution provides some solid groundwork for addressing the problems of imposition
and exclusion. As argued by Mohanty, “If multiculturalism is to be the goal of educational and
political institutions, we need a workable notion of how a social group is unified by a common
culture . . .” (Mohanty, 2003). From all practical insights and efficiency, the Draft Constitution
module may befit the workable notion of the democratic nation building in the multi-cultural, and
multi-ethnic settings of the Nepalese society. However, the implications of adopting provincial
languages as official languages of provinces are yet unknown. Nevertheless, before adopting any
language(s) as an official language(s), it would be reasonable to pay attention to the following
features at the minimum. They are:
•
A sizable number of the population speaks, reads, and writes the language aspired to be the
lingua franca.
•
A sizable number of people are able to work as public officials in delivering public services
in the official languages of the provinces.
•
Existence of a well-developed script, syntactic and morphological structure, grammar, and
citizen shall have the right to get free education up to the secondary level from the State, as provided in law. (3) Every
community residing in Nepal shall have the right to preserve and promote its language, script, culture, cultural
civilization and heritage.”
26. Article 6 of the 2015 Draft Constitution provides that, “All languages spoken as mother tongues in Nepal are the
languages of nation.”
27. Article 7 of the 2015 Draft Constitution provides that, “(1) The Nepali Language in Devanagari script shall be the
official language of Nepal. (2) Besides Nepali language, the provinces can determine one or more languages spoken by
majority of the people in the province as the official language of the province.”
28. Article 37 of the Draft Constitution, which reads, “(1) Each individual and community shall have the right to use its
language. (2) Each individual and community shall have the right to participate in the cultural life of the community. (3)
Each Nepali community living in Nepal shall have the right to protect and promote its language, script, culture, cultural
civilization and artifact.”
13
technological support system of the language.
According to the 2011 census, there are 123 languages spoken as mother tongues in Nepal. The
following data show that besides Nepali, no other languages are in a position to occupy the place of
official languages at the national or federal level. A couple of languages, such as Maithili, Bhojpuri,
Newari, and Hindi might satisfy the criteria of official status at the provincial level. Perhaps, in the
future, any language including the English language might occupy the status of an official language
in Nepal. With the growing number of English medium schools, and an educated younger
generation conversant in English language, the possibility of English language becoming an official
language cannot be denied in the future. Though, this estimation is only about the future, far from
any possibility at the present moment. The following chart shows the distribution of the ten major
mother tongues.
Table I: Distribution of Mother Tongues Speaking People (in %)
Nepali
Maithili
Bhojpuri
Tharu
Tamang
Newar
Bajjika
Magar
Doteli
Urdu
1
2
3
4
5
6
7
8
9
10
2011
44.6
11.7
6.0
5.8
5.1
3.2
3.0
3.0
3.0
2.6
2001
48.61
12.30
7.53
5.86
5.19
3.63
Magar
Awadhi
Bantawa
Gurung
3.39
2.47
1.63
1.49
Position
Table: Author. Data Source: CBS, Population Census, 2011 & Population Census, 1991.
Generally, censuses do not show the composite size of Nepali speaking population as a second
language or almost parallel to mother tongues. The data about mother tongues alone are elusive in
showing the trends and the status of the users speaking Nepali as a lingua franca. Most research and
data primarily focus on the distribution of the population speaking mother tongues, but overlook
data that show the status of Nepali as a lingua franca or la second language used for social
interaction and communication. Nevertheless, it is widely known and practically verifiable that an
overwhelming percentage of the people use the Nepali language as a lingua franca. The estimation of
the Encyclopedia of Linguistics provides that over 90% of the Nepalese population speaks Nepali
(Brown, 2005). The Nepali language is spoken not only within the Indo-Aryan linguistic family, but
also Tibeto-Burman, Austro-Asiatic, and Dravidian linguistic families as a second language.
Analogously, people of all castes, ethnicity, and religions in Nepal speak Nepali. Whether it is
imposed or embraced to meet the need of socio-economic cooperation, the Nepali language has
practically achieved the status of a lingua franca. Although in a rapidly growing post-constitutional
global order, the Nepali language alone might not be able to attend to the Pareto efficiency, let alone
Pareto optimal. The following table shows the linguistic diversity in Nepal.
14
Table II: Distribution of Linguistic Family in Nepal from 1952-2001 (in %)
1952/54
1961
1971
1981
1991
2001
Indo-Aryan
77.13
19.14
78.42
82.66
79.50
79.1
Tibeto-Burman
21.08
19.26
17.16
12.06
16.26
18.4
Austro-Asiatic
0.20
0.31
0.21
0.19
0.18
0.2
Dravidian
-
-
-
-
0.1
0.1
Others
0.85
1.22
4.21
5.09
3.51
-
Not Stated
0.01
0.07
-
-
0.05
2.2
Total
100
100
100
100
100
100
Table: Author. Data Source: CBS, Population Census 1952/54-2001.
With the above discussion and data, one may perceive that the nuisance of the imposition has been
formally and structurally dismantled in the post-2006 era of Nepal. Yet, the rational practical
consciousness needs to be enthusiastically strengthened at the societal or normative level to sustain
and give effect to the structural changes in the real life domain.
Now, let us examine the realm of exclusion in the Nepalese society. The dimension of exclusion in
the Nepalese society is characterized as being reflexive of three different features. First, ChettrisBahuns (especially pahadiya or parbate) as a ruling class have ruled the country keeping other ethnic
groups from participating in the political process. Second, Cheetris-Bahuns have usurped the birth
soil of ethnic communities (janjatis) depriving them of the entitlement over land, water, and natural
resources. Third, with the historical perpetuation of the caste system, the Hindus have dominated
and discriminated the janjatis and dalits. Some scholars and activists have also offered solutions to
these three problems: ethnic federalism as the only solution to the first problem, irredentism as the
only solution to the second problem, and the end of caste system as the solution to the third
problem.
A short account of these features and their solutions might be contextual. The overtly pronounced
first problem projects an inaccurate description of the issue. Instead, the political history of Nepal
evidences clearly that from the very beginning of the fight against the Ranas autocracy and the
absolute monarchy, including through establishing political parties, organizing the people’s
movements, and taking all sorts of political risks, Chettris, Bahuns, and Newars (CBN) were
overwhelmingly exposed at the forefront of the political battles. During those days, the CBN were
the anti-system elements, not the ruling class. Thus, to take for granted the rule of Ranas and Kings
to describe the Chettris and Bahuns as the ruling class is unrealistic. In the post-1950 period, the fact
is not hidden that the representatives of different ethnic groups have invariably held the political
positions and power in the state organs.
In the post-1990 period they are not only in power, but also have equal opportunity to participate in
the political process from local to national levels. From local governments to the central
government, people from different walks of life and ethnicity have been represented on a non15
discriminatory basis. Certainly, each ethnic group has not been represented equally in all forms of
political setups, which both theoretically and practically seems impossible. Theoretically, political
participation and representation is not an ethnic process, rather it is a civic and citizenry process.
Practically, any account of ethnicity as the basis of political framework undermines the very idea of
equal citizens and poses threats to the basic ideal of the separation of politics from belief systems. A
prohibition of discrimination on any grounds of sex, religion, ethnicity, race, caste, gender, and belief
is the basic module of any civic state, which was also guaranteed under the 1990 Constitution and
has been given continuity by the 2007 Interim Constitution and the 2015 Draft Constitution.
Further, the claim that the representation in public service, including in the army and police, was
disproportionate to the ethnic demographic composition, challenges the very civic character of a
state. It does not mean that there was an absence of problems in the post-1990 era, but those
problems were closely connected to the derogation of a civic state. The civic state was eroding due
to corruption, misuse of political power and state apparatuses, decadence in the rule of law, and a
political obsession with the partisan governance, amongst others. The victims of these (justice)
problems were targeted irrespective of ethnicity—all citizens were made victims. One exception at
the societal level should not be forgotten; the pathology of the caste system, which had placed the
dalits at a severe disadvantage to political and economic conditions. Otherwise, by building a formal
positive system, the equity would be distributed with a required level of fairness.
Irredentism proposed as the solution to the second problem alludes to a purely aristocratic project,
whose legitimization lies within the framework of an ethnic federalism. The land system of Nepal
shows how the concept of eminent domain was misused for serving the vested political interests of
aristocracy. Interestingly, the process of creating as well as ending feudalism has amazingly been
marked by a simple but penetrating concept of the ‘eminent domain’ itself. Since the time of Prithivi
Narayan Shah, the land was taken as a means to serve political interests, maintain state power, and
create aristocracy as a political frontline. It was in its peak during the Ranas regime. Lands in
different forms, such as: kipat, birta, jagir, rakam, and guthi29 were the most corrupt arrangements of
the system with a blatant misuse of power for self-preservation. King Mahendra, who is known for
wearing the hats of an autocrat, a socialist, a reformer, and a shrewd political strategist launched the
land reform system in Nepal by enacting a number of legislations, which ended the kipat, birta, jagir,
29. A raikar is a personal ownership type of a landholding system created through a market-based system of selling
and purchasing of land. Under a raikar system, the landowner is personally liable to pay land tax to the state. The kipat
system was invented by Prithivi Narayan Shah, who granted the power of collecting taxes to certain Mongol
communities (Limbus, Rais, Danuwars, Sunuwars, and Tamangs in the eastern and the western hill areas of Nepal.
Under the kipat system the collected tax was divided between the state and these collecting communities, working as
intermediaries between the state and the taxpayers. A birta was a private landownership created not by the market
mechanism but by a grant of the state to the aristocratic class, especially armies, Ranas, Shahas, and state officers. A guthi
is a trust system of land. The state not being able to hand a paycheck to its officials, invented a system to pay instead by
granting a piece of land, called a jagir system. When a private owner of a piece of land could not pay land tax, the owner
was required to pay the tax by providing unpaid labor service to the state called a rakam system. In most of these cases,
the land was sold under the market mechanism creating a private land ownership, which had necessitated to transform
these different types of land systems into a raikar system, which was carried out by the Land Act, 1964 and other related
laws. For details, seeMAHESH CHANDRA REGMI, LANDOWNERSHIP IN NEPAL (University of California Press, 1976); see
alsoMAHESH CHANDRA REGMI, LAND TENURE AND TAXATION IN NEPAL (University of California Press, 1963).
16
and rakam systems. In this process, the law also abolished the Kharka land (meadowland) including
that owned under the raikar system. The guthi system was not abolished but reformed.
The whole purpose of the land reform was to turn land into a market based raiker system (a system
of private ownership) and to empower the landless people by distributing pieces of land for
livelihood. But the purpose of creating equity by empowering the landless people was largely
defeated by the panchas (political leaders and cadres of the panchayat system), who themselves usurped
the land in the name of landless people. Thus, the solution to the second problem is hard to find in
irredentism, which rather falls back on the feudal aristocracy enabling a few elites to accumulate
huge chunks of land. On the other hand, by finding the usurpation of land by the panchas and for the
state to take it back for redistribution to the poor landless people, irrespective of any ethnic identity
or discrimination, would perhaps help to address the problems of poverty and livelihood. It would
also promote equity. In short, irredentism is inexorably a cyclical move largely argued to serve deepseated class ambitions, which simply institutionalizes inequality and inequity.
The settings of the most social and political evils in Nepal could be imputed to the pathology of
caste and dalits, rooted deeply across the country. Despite the widespread archetypical perception
that the caste system in India and Nepal is an offshoot of the Hindu culture and doctrine, historical
facts show that the caste system is not typical to only the Hindu religion.30 In history, the system of
social stratification was prevalent in many countries in Europe and Asia. For example, the caste-like
social stratifications in China, France, and Japan resemble the caste system in India and Nepal. With
the exception of India and Nepal, most other countries have rightfully ended social stratification.
However, the system of nobility in the United Kingdom might be viewed as a modern day vestige of
a social stratification system existing in Europe.
The caste and dalit systems in Nepal are closely connected. In fact, dalits are the byproducts of the
caste system. The ontology of the caste system in Nepal can only be understood when it is analyzed
from legal, political, and socio-cultural standards. Legally speaking, since the commencement of the
1948 Constitution, the concept of equality before the law has continuously existed, further attuned
by the end of discrimination on the grounds of race, sex, language, and ethnicity. Additionally, the
National Code, 1964 (Muluki Ain, 2020 B.S.) under Section 1031 of the Miscellaneous Chapter
protected social custom and practices from any threats and disturbances of a third party. It was
thought essential to protect the culture, language, and the practices of ethnic communities, but at the
same time it also gave continuity to the caste system to which dalits were victims at large.
30. SeeJULIES LIPNER, HINDUS: THEIR RELIGIOUS BELIEFS AND PRACTICES, Kindle Location 214 (Routledge, 2nd ed.,
2010) The author “The caste system, though closely integrated into the Hindu religion, is not essential to it. .. Even the
profession of belief in the authority of the Veda is not essential.” See alsoJOHN P. JONES, INDIA, ITS LIFE AND THOUGHT
92 (New York, The Macmillan Company, 1908). The author states, “The origin of caste is a subject of much uncertainty
and debate. In ancient Vedic times, caste was unknown. Society, in those days, was more elastic and free, and resembled
that of other lands. And yet it showed a tendency toward a mechanical division, which later grew into the caste system.”
31. See Section 10 of the Muluki Ain, 2020, which reads, “No one shall do, or cause to be done, any act to undermine
or likely to undermine social custom and usage of other person. If someone commits or causes to be committed such an
act, he or she shall be liable to punishment of imprisonment for a term not exceeding One year or a fine of up to One
Thousand Rupees.”
17
Even in the post-1990 era, the political community, especially the ruling parties allowed the
perpetuation of the disgraceful institution of the caste system. Socio-culturally, not only Chettris and
Bhauns, but also the Janjatis have continually practiced the caste system. Janjatis treated dalits in the
same manner as they were treated by Cheetris-Bahuns, even in the post-1990 period. Immediately,
on the success of the second people’s movement in 2006, a new Section 10(A)32 was added to the
Miscellaneous Chapter of the National Code, which prohibits any discrimination towards dalits,
further strengthened by Article 14 of the Interim Constitution, 2007. Article 14(1) of the 2007
Constitution has prohibited any discrimination on the grounds of the untouchable and caste.33
Article 14(2) prohibits discriminations to dalits in regard to using public services, facilities, and
utilities.34 Article 14(4) prohibits all sorts of social practices leading to the superiority or inferiority
classification based on caste or belief systems.35 Under Article 14(5), any act that violates the
prohibitions imposed under Article 14 shall be punishable by law. The punishment is provided
under Section 10(A) of the Miscellaneous Chapter of the National Code that ranges from 3 months
to 3 years of imprisonment and one thousand to twenty-five thousand rupees fine, or both.
Moreover, the 2015 Draft Constitution has provided clear provisions and guaranteed rights against
untouchability and discrimination on the grounds of caste. With this development, the system of
dalit has been formally abolished. However, as ‘Rome was not built in a single day,’ changing social
practices may take sometime. Nevertheless, any social practices that discriminate dalits are punishable
by law. Against this background, it can be optimistically anticipated that the problem of dalit would
be ended socially as well.
Box 1: Right against Untouchability and Discrimination
Article 29 of the Draft Constitution: Right Against Untouchability and Discrimination
(1) No person shall be treated with any kind of untouchability or discrimination in any private or
public places on the grounds of caste, ethnicity, origin, community, occupation, or physical
conditions.
(2) No commodity or service shall be produced or distributed targeting its supply, purchase, and
32. See Section 10(A) of the Muluki Ain, 2020, which reads, “If a person discriminates as an untouchable or excludes
or prohibits any person on grounds of caste, religion, color, class or work, the person shall be liable to the punishment
of imprisonment for a term ranging from Three months to Three years or a fine of One Thousand Rupees to Twenty
Five Thousand Rupees or both.”
33. See Article 14(1) of the Interim Constitution of Nepal, 2007, which reads, “No person shall be discriminated
against as untouchable and subjected to racial discrimination in any form, on grounds of caste, race, community or
occupation. Such discriminatory treatment shall be punishable, and the victim shall be entitled to such compensation as
determined by law.”
34. Id. Article 14(2), which reads, “No person shall, on grounds of caste or race, be deprived of the use of services,
facilities or utilities available to the public or of the access to any public place or public religious sites or of the
performance of any religious function.”
35. Id. Article 14(4), which reads, “No such act as to purport to demonstrate any superiority or inferiority of the
person or persons belonging to any caste, tribe or origin or to justify social discrimination on the ground of caste or race
or to publicize ideology based on racial superiority or hatred or to encourage caste discrimination in any manner shall be
allowed.”
18
distribution to a person belonging to a particular caste or ethnicity.
(3) There shall be permitted no indication of superiority and inferiority to a person on the grounds
of caste, ethnicity, origin or physical conditions, or justification of social hierarchy on the
grounds of untouchability, or communicating ideas based on untouchability, superiority or
hatred of caste, or encouragement of caste-based discrimination.
(4) No discrimination shall be permitted on untouchability or any other grounds at the workplace.
(5) Any act of untouchability and discrimination inconsistent to this Article shall be punished by law
as serious social crime, and the victim of such an act shall have the right to get compensation as
prescribed by law.
Note: my translation.
With these developments, especially in the post-2006 era, the problems of imposition and exclusion
have been substantially addressed at the formal structural level, in turn demanding the Nepalese
society to be ready to apply these formal developments in the practical realm as well. Despite these
developments, the conceptual and political ambivalence of the right to self-determination in the
country is holding back a legitimate process of nation building.
With the new constitution, Nepal will enter into a new phase democratic nation building.
Nevertheless, it has also incorporated some conspicuous flaws that may impede the process of
democratic nation building. For example, the Preamble is aimed to create grounds for socialism and
Article 4 defines the Nepalese state moving towards socialism. Despite these and some other
aberrations, on the balance of probabilities, the 2015 Draft Constitution (assuming to be
promulgated soon), has opened space for all features of democratic nation building.
Constitution is a basic framework; the detail blueprint of nation building should from laws enacted
by the parliament, policies developed by institutions, and the condition of the implementation of
laws and policies by the envisioned institutions. A number of new institutions have been envisioned,
including the federal structure. In general, the process of nation building can be accomplished both
under a unitary system of government as well as under a federal structure of government. The
Nepalese process of nation building is entering into a new environment, i.e., from the centuries long
unitary system to a never practiced federal system in its political history. It might not be that simple
and straightforward as commonly believed by the political parties and leaders. Moreover, creating or
establishing new institutions might be important for many reasons, but they themselves are not the
end goals of nation building. Quite often nation building is deeply influenced by the effective
operation and coordination of institutions. Therefore, it is yet to understand and appreciate the role
and efficiency of the new institutions in bringing people at the center of nation building, securing a
robust, fair, and competitive market, institutionalizing a civic state, guaranteeing universal social
protection, and unflinchingly practicing constitutionalism.
19
3.3 Post-National Stage of Nation-Building
A post-national stage of nation-building marks a phase where the absolute sovereignty turns out to
be inappropriate under the growing constitutionalization of international rules, which demands the
compatibility of domestic laws and legal system with the international rules. With this development,
violation of international law or commission of crime in disregard to international law cannot be
simply ignored on the reasoning of political convenience or any other domestic grounds. Similarly,
the post-national constitutionalization as a system of global integration offers a basket of
opportunities as well as threats expanded from the local to a global level. Political instability, policy
ambivalence, a systemic controversy and erosion, derogation in a civic state, and the escalation of a
divided society (all of which can be termed a fragmented state) inhibit the possibility to catch up the
market and opportunities at the global level.
Within the existing political wisdom, Nepal seems to be moving towards a fragmented state, which
may invite more perplexing problems leading to a state of faltered development and squandered
opportunities, unless ideologies, elitist ethnic sensitivities, and political inefficiencies are successfully
brought under the purview of constitutionalism, the highest form of the rule of law. A solution to
address the challenges of post-national nation building should come from within the framework of
constitutionalism, which seems almost uncertain under the perilous political atmosphere of Nepal.
Especially, the uncanny political reading of the constitution making has unleashed extensive
uncertainties.
In the course of nation building, the question of whether crimes could be exonerated or, to put it
more clearly, could an extra-judicial killing be justified on political ideological ground, has resurfaced
as an important legal political issue in the post-conflict transitional justice era of Nepal. International
humanitarian law (IHL), in particular the common Article 3 of the Geneva Conventions, 1948,
requires all parties to comply with the IHL by penalizing under the domestic criminal law. The
common Article 3 specifically prohibits violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture of non-combatants and captured or arrested combatants. The
Nepal Conflict Report prepared by OHCHR documents a number of cases of the violation of IHL
and international human rights law by both parties of the conflict during the 1996-2005 armed
conflict (insurgency) in Nepal. The Report specifically recommends three measures to be taken as
the transitional justice measures that are important part of the process of nation building. They are:
20
•
Under international law, the Government of Nepal has a fundamental obligation to
investigate and prosecute serious violations of international human rights law and
international humanitarian law that were committed during the conflict.
•
Where there is a reasonable basis for suspicion that a serious violation of international law
has occurred, these cases merit prompt and independent investigation by a full judicial
process.
•
The transitional justice mechanisms are an important part of this process but should
complement criminal justice processes and not be an alternative to them.
The Maoist government of Dr. Baburam Bhattarai not only undermined the measures
recommended by the OHCHR, but also engaged in some caustic undertakings breaking down the
system. First, his government denied taking any legal action against those who had committed
crimes (e.g. extra judicial killing/murder) during the insurgency period in name of politics. For
example, among many cases, the murder case of journalist Dekendra Thapa can be taken as one.36
The Maoist insurgents abducted Dekendra Thapa, a journalist, in August 2004. After being beaten
senseless the Maoists buried him alive.37 It is not only the Maoist government, but also the Maoist
party and its supreme leader Parchanda, wholabeled any legal process against the conflict period
crimes as a ploy to derail the peace process. Another equally serious case is the murder of Krishna
Prasad Adhikari, a schoolboy abducted and murdered by the Maoists in Gorkha. Since then, his
parents were asking for justice, but have yet to receive it. Not a single government investigated the
case and brought the accused before the court. Finally, his parents (the Adhikaris couple) started a
hunger strike and Mr. Adhikari also lost his life during the hunger strike that caught the attention of
the National Human Rights Commission of Nepal, ordering the government to take action against
the accused.
Parchanda vociferously denounced the act of demanding justice as the ploy to obstruct the second
CA elections.38 Their logic comes from the bizarre proposition that any crime committed with a
political purpose should not be prosecuted, which reminds us of the same old squabble of
absolutism—that politics should be unrestrained by the law. Second, despite a widespread
opposition from civil society, human rights organizations, and the legal community, the Maoist Party
and its government pushed through a law, creating an ordinance on March 14, 2013 called an
Ordinance on Investigation of Disappeared People, Truth and Reconciliation Commission, 2013,
offering a general amnesty to all crimes committed during the conflict period. These events indicate
the gravity of the crisis in institutionalizing a democratic stage of nation building and managing a
post-national stage of nation building in Nepal.
The systematic, strategic, and focused undertakings demanded by the post-national stage of nation
building remain extremely significant to catch up the developmental aspirations and build the
country to be internationally competitive, administratively efficient, and institutionally robust for
paving growth and promoting human resources development. Incongruously, by being absorbed in
deep controversies on the modality of institutional structures, the nature of administrative efficiency,
36. See ekantipur (January 8, 2013). Ekantipur writes, “Prime Minister Baburam Bhattarai has vented his ire over the
arrests of those accused in the 2004 murder of journalist Dekendra Thapa in Dailekh. He condemned the arrests of the
accused—five Maoist cadres—eight years after the murder of journalist Thapa, saying it was part of the plot to derail the
peace process by reviving the cases that occurred during the conflict period.”
37. See Prakash Adhikari, Man Admits to Burying Scribe Alive, ekantipur (Jan. 7, 2013), available at
<http://www.ekantipur.com/2013/01/07/editors-pick/man-admits-to-burying-scribe-alive/365232.html>. The author
writes that, “One of the suspects held in connection with the 2004 killing of journalist Dekendra Thapa has admitted
that the scribe was buried alive after he was beaten senseless inside a classroom of a local school in Dwari VDC in
Dailekh.Lachhiram Gharti told the government lawyer on Sunday that the victim’s pulse was still beating when they
buried him on August 11, 2004, two weeks after his abduction by the then Maoist insurgents.”
38. See Image Channel (August 14, 2013), available at <http://imagechannels.com/news/details/30360/Parchandacomes-heavy-on-Krishna-Prasad-murder-episode-Says-event-being-used-as-pretext-to-foil-election>.
21
and a fragmented sense of political engagement, the nation might be forced to batten down the
hatches. A question may arise of how these problems could be addressed.
One of the views contends that the existing model of nation building in Nepal is elusive in terms of
its nature and content (Sharma, 2008). With the rise of ethnic movements, especially in the post1990 period, the emerging ethnic perspectives critically project the Nepali nation building as an
imposed and exclusionary process driven by the idea of Hinduization (Gurung, 2008; Lawoti, 2005).
In addition, a large segment of society views nation-building as a task yet to be accomplished.
However, they sharply differ on the methodology and the core features of accomplishing the task of
nation building. Nonetheless, they have espoused conceptually less clear ideas, ranging from
restructuring to designing an inclusionary state, securing the autonomy of ethnic groups, and freshly
starting of nation building with a right to self-determination at the core(Whelpton, Gellner, & PfaffCzarnecka, 2008). Amazingly, few seem content with the existing process of nation building, which
substantially affected the constitution-making process in the past and conceivably exerts an
additional pressure in the implementation of the constitution.
The future constitution (on the basis of the Draft Constitution, 2015) has postulated a path of
democratic nation building. However, uncertainties are still looming large, questioning how
successfully the new institutions would operate. It is especially critical under the new political setting
where various normative ethnic and political ideologies are at sharp loggerheads and showing no
signs of receding from their earlier persistent standing.
One of the leading scholars of Nepal, Harka Gurung, observed that nationalities integrated through
a political process, which institutionalizes a ‘state’ distinct from a ‘nation.’ A nation ‘denotes to a
community of race, language, and religion.’39 This observation of Harka Gurung reinforces an idea
that a modern state cannot be founded on ethnic grounds. A non-ethnic political process instituted
on the basis of equality of citizens should shape the process and mission of nation building. Thus, a
modern democratic state is essentially established on positive grounds, decoupling the normative
underpinnings of race, language, culture, and religions from becoming the governing instruments of
a political process. Having said that, a modern state cannot ignore its responsibility of managing
political equilibrium between different classes, ethnic groups, and segments of society through the
mechanism of rights and duties.
Also, a modern state cannot pretend to be unaware of its responsibility of protecting ethnic rights
on the basis of rationally legitimized citizenry standards. An autocratic regime often maintains the
political equilibrium with suppression and domination, whereas the issue of socio-politico
equilibrium in a democratic society is often contested as it opens up opportunities for dissent and
competing claims. When the political equilibrium is sharply contested or shattered, the danger of
fragmentation and disintegration becomes a looming presence in a democratic society. In the post39. See Dr. Harka Gurung, Social Inclusion and Nation-building in Nepal, A paper presented at a workshop organized by
Social
Inclusion
Research
Fund,
available
at
<http://www.socialinclusion.org.np/new/files/Social%20Inclusion%20and%20Nation%20Building%20in%20Nepal%
20-%20Dr%20Hakra%20Gurung_1336541331c25e.pdf>; see also Harka Gurung, Making of a Nation, in NATURE AND
CULTURE pp. 133-148 (Harka Gurung ed., Kathmandu, 1979).
22
2006 political landscape of Nepal, the question of political equilibrium has emerged as one of the
highly contested issue since it is associated with the contested process and modality of nation
building.
4. Challenges and Prospects of Nation Building in Nepal
The prospect of nation building in Nepal depends on the nature of democracy, the rule of law,
market, and social protection (DRMS). Any derogation or aberration in the DRMS poses challenges
to the post-constitutional nation building in Nepal.
Time and again, the power-relationship has become one of the sternest issues constantly affecting
the success of institutionalizing DRMS in Nepal. To be specific, the unjust power relationship in
Nepal has always been the main source of political contestation and instability, which has affected
the process of nation building. The case of Nepal shows that power has either been exercised
beyond authority or authority itself has been bent to employ the state apparatus for vested political
interests or personal benefit. If the new institutional set up continues with the same problems and
mindset of power-relationships, perhaps the democratic nation building process in Nepal will
undergo a number of vicissitudes. Therefore, a solution to the problems of power relationships
should be sought in the process of structuring the new institutions.
‘Power tends to corrupt and absolute power corrupts absolutely’ is a well-known legal political
notion. When power tends to corrupt, it also erodes the sense of belongingness. As shown in the
chart below, the foremost task of nation building in Nepal is urgently expected to bring all powers—
political, ideological, religious, cultural, social, economic, or in any other forms—within the
legitimate framework of rights and authority. Nevertheless, this framework might become quite
naïve and fragile if power is gained and exercised beyond the precepts of rights and authority even
under the new institutional setup. Therefore, the DRAMS should stand at the core of the process of
nation building.
Chart II: The Dimension of Power
Legitimate
Positive
Enforceable
NonInstitutional
No Obedience
Duty
Legitimate
Positive
Enforceable
Command
Binding
Obedience
Accountable
Rights
Power
Authority
Institutional
23
The modest but a narrow form of power relationships and belongingness experienced by succeeding
generations under a tribal mode of social organization has been characteristically advanced towards a
global social power relationships and belongingness. The crescendos of changes display many
distinctive features. Among them, the following table shows the unique progression in the idea of
belongingness under three different modes of social-political organizations.
Table III: Characteristics of a Nation at Different Stages
1
2
3
4
5
6
Ethnic Group / Ethnicity
• Singular ethnic identity
Nation/Nationhood
• Multiple social identities
Nation-State/ State
• Civic identity
• The myth of distinct descent
(Customary)
• Intra-community character
• Community allegiance
Ethnic customary practices
• Political relationship
(Normative)
• Inter-community character
• Modest political allegiance
• Custom + political
consciousness
• Charismatic
political
leadership
• Political management of
leadership conflict
•
• Legal political relationship
(Positive)
• Sovereignty
• Constitutional allegiance
• Constitutional supremacy
7
• Chieftainship
relationship
• Leadership conflict
8
•
centric
• Rational Political leadership
• Constitutional management of
leadership conflict
• Global constitutionalism
A number of features including the features of global constitutionalism, constitutional supremacy,
constitutional allegiance, rational political leadership, sovereignty, legal-political relationships, and
civic identity among others are quite distinctive to be found in a sovereign state (nation state/state).
All these features tend to be the foundation of individual and collective identities and socio-politicoeconomic relationships. As the intrinsic part of legal-political relationships and global
constitutionalism—freedom, liberty, and human rights—catalytically display the themes that unite
individuals, market, and the state.
Against this background, the concept of nation building under the modern democratic sovereign
state is invariably expected to manage the following four demands.
1.
2.
3.
4.
Equal Citizens (Liberal Democracy, Autonomy, and Self-Determination),
Rule of Law (Constitutionalism),
Market, and
Social Protection.
Each of these demands if not provided with requisite supplies may turn into challenges. In the
following sub-sections these demands, challenges, and their solutions are briefly discussed.
4.1Equal Citizens
Unequal citizens cannot build a nation. In fact, nation building is a process of creating conditions for
equal citizens. The question arises that what does it mean by equal citizens? Should there be citizens
24
equal in terms of resources, wealth, and power for the sake of nation building? If so, is it possible?
Has it been ever achieved?No state or institution has ever been found ensuring equality of citizens in
terms of resources, wealth, and power. However, liberal democratic states have proved that citizens
can be equal in terms of rights and duties. To explain this proposition, the concept of autonomy,
self-determination, and liberal democracy are discussed in the following two sub-sections.
4.1.1Autonomy: Citizenship and Self-Determination
In the context of Nepal, the question of autonomy and self-determination poses some somber
theoretical and practical undercurrents, especially when metastasized with ethnic political interests.
For example, both in Kantian and Rawalsian terms the concept of ‘free and equal person’ stands at
the core of autonomy. In other words, individual autonomy is the basis of equal citizen. In this
sense, when ethnicity in the name of primordial culture, belief, and fallacy of ‘distinct-we’ imposes
internally and externally (inter and intra-group) conditions limiting the idea of the union of free and
equal rational being, it consequently constrains autonomy. Similarly, when a state in name of political
interests denies individual autonomy, resultantly happens to follow the footprints of
authoritarianism. For example, the citizenship discourse in Nepal presents an interesting case. Even
the 2015 Draft Constitution has denied individual autonomy by rejecting the autonomous right of a
mother or a father in transferring citizenship to their children. Article 12(1) of the Draft
Constitution demands that both father and mother should be the Nepali citizen to transfer
citizenship to their children on descent (Tuladhar, 2015; Bhandari 2015). Simply, a father or a
mother cannot transfer citizenship autonomously. It is hard to understand why a constitution made
for inclusion on the foundation of democracy denies individual autonomy.
John Rawls defending the concept of ‘autonomy’ describes it as acting autonomously on the
grounds of principles that we consent to as free and equal rational being, which is institutionally
possible only under a constitutional democracy (Rawls, A Theory of Justice, 1999, pp. 450-456).
Kant explains the philosophy of autonomy as ‘the will of every rational being’, which must ‘consider
itself as giving in all the maxims of its will universal laws’ leading towards the supreme principle of
duty for a ‘union of different rational beings’ in a system of law. Kant further elaborates ‘autonomy’
as the basis of the dignity of a person without any discrimination or distinction. He adds three
important features to the concept of ‘autonomy’: universality, rationality as the end in itself, and the
unity of the will of the people (Kant, 2005/1785). Thus at the theoretical level, the current discourse
on ethnic identity and citizenship issue in Nepal lack the Kantian and Rawalsian premises of
autonomy.
Practically, the notion of self-determination as developed under the international law for
transforming nations deprived of sovereignty into sovereign states, stands at the odd with the
Nepalese narratives of self-determination. Against this background, the utmost controversy
surrounding the right to self-determination (RSD) emanates from claims advanced by some minority
or ethnic groups in an attempt to create their own state (Steinerte & Wallace, 2008; Bhandari, SelfDetermination, 2014). Despite these controversies, as a right of the people and of nations to gain
25
independence and establish sovereignty, RSD has widely been recognized as part of jus cogens, a
peremptory norm of the international law. In the Namibia case of 1971, the International Court of
Justice (ICJ) emphasized that, as a legal concept, the right to self-determination confers international
legal personality upon peoples.40 The ICJ Advisory Opinion in the Western Sahara case in 1975
provides two very important insights on the application of the RSD. First, that RSD is a right of
securing sovereignty by applying it in one of the three ways:41 emerging as an independent state,42
voluntary association with an independent state,43 and integration with an independent state44 on the
basis of the freely expressed will of the people. Second, to an independent sovereign state,
international law does not prescribe an instruction as to what pattern of state structure should it
follow (Steinerte & Wallace, 2008, p. 60).45 However, contrary to the principles laid down by the ICJ,
the Nepalese discourse on the RSD is peculiarly concentrated on what pattern of state structure
should Nepal follow.
Let’s take this issue with a specific example. The Committee on State Restructuring and Distribution
of State Power (CSR) of the dissolved CA (the first CA) of Nepal had proposed a mechanism
providing an exclusive political right of priority to the members of a majority ethnic group or
community in regard to holding the highest political position in those provinces constituted under
ethnic basis.46 The lodestar of the proposed provision seems to empower ethnic communities by
ensuring their political control on the basis of positive discrimination for a fixed term.
40. Legal Consequence for States of the Continued Presence of South Africa in Namibia (South-West-Africa) notwithstanding Security
Council Resolution 276, June 21, 1971, ICJ Advisory Opinion, para. 52, <http://www.icjcij.org/docket/files/53/5595.pdf>, visited on 20 October 2013. The ICJ noted: “Furthermore, the subsequent
development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United
Nations, made the principle of self-determination applicable to al1 of them. The concept of the sacred trust was
confirmed and expanded to al1 ‘territories whose peoples have not yet attained a full measure of self-government’ (Art.
73). Thus it clearly embraced territories under a colonial regime . . . A further important stage in this development was
the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 1514
(XV) of 14 December 1960), which embraces al1 peoples and territories, which have not yet attained independence.”
41. Western Sahara, 16 October 1975, ICJ, Advisory Opinion, para. 57, <http://www.icjcij.org/docket/files/61/6195.pdf>, visited on 20 October 2013. The ICJ observes that “General Assembly resolution
1514 (XV) provided the basis for the process of decolonization which has resulted since 1960 in the creation of many
States which are today Members of the United Nations. It is complemented in certain of its aspects by General
Assembly resolution 1541 (XV), which has been invoked in the present proceedings. The latter resolution contemplates
for non-self-governing territories more than one possibility, namely: (a) emergence as a sovereign; independent State;
(b) free association with an independent State; or (c) integration with an independent State.”
42. An independent state might have different forms of governments: presidential, parliamentarian, monarchical,
authoritarian, unitary, federal, and so on.
43. The former USSR, former Yugoslav Republic, the United States of America and India might be taken as the
examples of voluntary association. However, the term ‘voluntary’ might be contested or understood at different levels in
these examples. Generally, the modality of association can be reflected in the federal structure of a government.
44. The example of integration can be taken from all federal structures that do not allow voluntary secession and all
unitary structures across the globe.
45. The authors claim that in the Western Sahara case “The ICJ made it clear that as evidenced by the great variety of
the diversity of state forms around the world, there is no prescribed rule as to what pattern of state structure an entity
should follow.”
46. Committee on State Restructuring and Distribution of State Power, A Concept Paper and Preliminary Draft on
Restructuring the State, proposed Article 13, (January, 2010) p. 20.
26
However, this proposal also invites some serious queries. First, it is not compatible with Article
21(1) of the Universal Declaration of Human Rights (UDHR), which provides that not a section of
society or a group of people but “everyone” should have the right to take part in the government of
their country, directly or through freely chosen representatives. Second, the CSR deprives members
of all other ethnic groups and communities to be a candidate, to be elected, or to elect a
representative of their free choice for the highest political position at the local level (provincial level),
except to those who are in the dominant position. Third, the CSR aims to secure the priority right to
a locally powerful ethnic group, not to a minority ethnic group. Fourth, the CSR tends to offer the
protection of positive discrimination to the members of the local majority group. In fact, these ideas
of the CSR have already been rejected under international law. Against the background of ethnically
dominated constitutional and political structure in Bosnia and Herzegovinian (BiH), a clear reference
can be found in the Opinion of the European Commission for Democracy.47
The European Commission for Democracy in its opinion mentioned that, “It would certainly not be
realistic to expect . . . a system based on ethnic representation to a system based on representation of
citizens . . . the Commission wishes to encourage people and politicians in BiH to start examining
the extent to which the mechanisms of ethnic representation are really required and to replace them
progressively by representation based on the civic principle.”48
Further, the European Commission on Democracy figured out the role of the government to
promote civic identity instead of ethnic identity or ethnicity based politics. It mentioned, “. . . the
Commission notes that constitutional arrangements in BiH are neither efficient nor rational. It
recommends concentrating legislative responsibilities at the BiH level and undertaking similar
reforms as those recommended for the BiH level with respect to the vital interest veto mechanism
and the streamlining in particular of the executive organs. The role of local self-government should
be strengthened. Moreover, a comprehensive reform of the BiH Constitution seems desirable. In the
medium term, moving from a system based on ethnic representation to an entity based on
citizenship should also be considered.”49
On the logic of the above discussion, three observations can be derived. First, an erroneously
explained concept of autonomy and self-determination will not help to solve the ethnic problems
and problems related to citizenship. On the contrary, the nation building process in Nepal might be
affected. Second, designing solutions to political problems from ethnic description is faulty and
already rejected under the international law. Third, the standards of co-existence of ethnic identity
under a sovereign state are designed under the international human rights instruments; thus, the
solution of the problem should be sought from within the framework of international human right
instruments that are based on the principle of equal citizens. Fourth, denying individual autonomy
on the grounds of culture or political interests and deprive a mother or a father to transfer
citizenship to their children undermines the democratic values.
47. Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative,
European Commission for Democracy through Law, paras. 44, 59, CDL-AD (2005) 004 (11 March 2005).
48. Id. para. 44.
49. Id. para. 59.
27
4.1.2Liberal Democracy and Human Rights
No state has ever made nor any state can ensure that each of its citizens is equal in terms of
efficiency, economic conditions, and intelligence. Irrespective of human origin and belongingness,
each individual is differently capable. A state, however, can reduce these inequalities, which John
Rawls explains under his second principle of justice. The idea of democracy, among others, plays
vital role in reducing these inequalities by creating opportunities through securing freedom, liberty,
and human rights. This particular role of a state is possible in a liberal democracy. In other words,
liberal democracies excel to perform this role (Siegel, Weinstein, & Halperin, 2004).
The concept of equal citizen draws the idea of the same opportunities, rights, and status available to
all in the society. But these novel and lucid ideas have frequently been vulnerable due to a number of
factors, such as, discrimination, unequal treatment, pervasive exploitation, social stratification, and
injustice, among others. In this context, at least, three examples will suffice to draw the required
attention: gender discrimination on citizenship rights, the caste system, and the education system.
The sense of an equal citizen is one of the strongest bonds of unity and the foundational stone for
nation building. The state of gender discrimination practiced during the Rana and Panchayati period,
especially on the issue of citizenship has been inopportunely continued in the democratic era too. It
is still guided by the patriarchal myth, which denies the equal status of women in imparting
citizenship to their children. Among others, it also constitutionally denies the right of womb,
including being a single mother. The discriminatory citizenship provisions are continuously
articulated even in the Draft Constitution. The draft provisions on citizenship deny the central idea
of equal citizens and reinforce the discrimination and inequality via constitution. Basically, there are
three main arguments against the proposed language on citizenship: gendered notion of nationality,
continuity and institutionalization of inequality and discrimination guided by deep-rooted patriarchal
values, and the failure in fulfilling Nepal's international commitment (Tuladhar, 2014).50
The centuries long practices of the caste system have largely been legally addressed in the post-2006
polity; however, the social practice still exists out there. Though, there seem many advances towards
this direction as discussed above under sub-heading 3. Ghai concedes that the Interim Constitution,
2007, has secured the demands of an inclusive state, especially of the ethnic groups, indigenous
communities, and dalits, through its different amendments and the proposals of the thematic
committees of the CA. However, these achievements will be mere ‘paper gains’ unless they are
guaranteed by the future constitution (Ghai, 2012).51The 2015 Draft Constitution has provided
mush more satisfactory advances in this regard. Despite these conspicuous developments,
dissatisfaction is still widespread and unrelenting. For example, 59 cross-party CA Members have
50. SeeI. Tuladhar, Constitution Making Process in Nepal: Citizenship Discourse Impact on Women and Children,
UNICEF Nepal Working Paper WP/2015/001 (2014).
51. See Yash Pal Ghai, A Commentary on the Place of Minorities and indigenous Communities in Nepal, in NEPAL: DESIGN
OPTIONS FOR THE NEW CONSTITUTION 233 (Bipin Adhikari ed., Kathmandu, Nepal Constitutional Foundation, 2010).
28
put forth a 52-points note of dissent on the Draft Constitution, especially arguing for ethnic identity
based federalism (Kathmandu Post, July 12, 2015).
Moreover, the education system in Nepal is openly, pathetically, and legitimately producing at least
two different classes in society: a public school class with no hope and possibility in enjoying socialeconomic opportunities and status (with a few exceptions), and a private school class. These
discrepancies have sharply escalated in the post-1990 era further aggravating the threshold of
divided society, which poses a serious threat in the process of nation building in Nepal.
Measuring an inclusive state only in terms of cultural plurality is too narrow of a concept to address
the dissatisfactions. No doubt, cultural plurality is a must condition, but within the framework of a
rights based approach bolstered by the rule of law. An inclusive state should be a hallmark where
every individual is equal in terms of social dignity; equally eligible to participate in the political
process; equally acceptable to compete on the grounds of merit in achieving opportunities, including
economic and employment opportunities, among others; and with more opportunities to those
sections of society who were previously left behind, to allow them to participate in a process that
could create a level playing field, including through a system of positive discrimination. In short, an
inclusive state is a state of equal citizens, where no one is excluded on the basis of caste, ethnicity,
gender discrimination, or the deprivation of citizenship. When the concept of an inclusive state is
misunderstood beyond these schemes, neither an inclusive state is attainable, nor can an illiberal
democracy be transformed into a liberal democracy. Therefore, the mechanism of nation building
should ensure the conditions of equal citizen with all conceivable political priorities.
The magnificence of inclusiveness is that no stakeholder denies its imperativeness. However, the
plausible conundrum of inclusiveness persists in the contestation of models. Obviously, there seem
to be two fault lines of extremism embedded in the arguments of these models: one size fits all, and
privileges subtly designed for certain groups over the rights of the general population. These fault
lines should be conscientiously avoided, especially giving due attention to the Rawalsian principles of
justice, which ensures liberty, freedom, and human rights as the first principle and managing
inequality as the second principle to improve the quality of life and secure the sense of
belongingness as equal citizens.
In short, I would like to borrow the words of Mr. Brown, who observes that, “. . . one overarching
lesson is clear: succeeding is not simply a question of legislative and policy changes, necessary
though they be. Constitutions and legislation that provide protections and guarantees for minorities,
indigenous people and other groups are a critical foundation for broader freedoms. But unless the
political culture also changes—unless citizens come to think, feel and act in ways that genuinely
accommodate the needs and aspirations of others—real change will not happen (Brown, 2004).”52
52. See Mark Malloch Brown, Foreword, in Human Development Report 2004: Cultural Liberty in Today’s Diverse
World (UNDP, 2004).
29
4.2Social Protection: Market and Equity
Democracy practiced in political jargon and additionally besieged by corrupt practices, aggressive
political culture, and ideological domination often miscarries the idea of equal citizen and staggers in
accomplishing the process of nation building. A real social inclusion becomes the unforgiving need
of the day when the political side of democracy is disjoined from a robust system of social
protection or security. Moreover, social protection system becomes almost impossible to practice
under a paternalistic system in place, which often contests the market. Instead, social protection
rather resolutely demands an efficient system of market with effective equity in place. Thus, a social
protection system ensures to each citizen the minimum security with a legitimate risk sharing
mechanism.
Effective welfare policy measures (social protection) scale up the inclusiveness of a state. Perhaps
there is no better way out to make a state inclusive than steadfastly adopting efficient social
protection policy measures. It is because under the social protection measures, the poor, vulnerable,
and left-behind people are offered a satisfactory level playing field and if needed are protected by
affirmative actions. Moreover, without any discrimination of race, sex, caste, ethnicity, gender, and
religion all people are provided equal treatment with a social security system coalesced into universal
and affordable health care, affordable housing, protection of the aged and disabled people with
social and financial benefits, universal pension for both salaried and non-salaried workforce, quality
and affordable education, and distribution of social goods without discrimination. These measures
are unavoidable in creating an equitable and just polity. In fact, effective social protection policies
and measures are the steadiest modalities in creating a fair and just society. Despite its illustrative
importance, governments have often failed to underwrite effective welfare policies and measures in
Nepal. However, the 2015 Draft Constitution has incorporated a number of features of social
protection, which marks a welcoming development.
The Nepalese discourse on the ‘inclusive state’ seems very persuasive in form, but at the same time,
all key stakeholders are egregiously overlooking its core contents, the social protection components.
Thus, there is a danger looming large, which at the end of the day may turn the idea of ‘inclusive
state’ into a mere political demagoguery or pedantry without meaningful contents.
The rudimentary social protection system in Nepal created by the existing laws and policies was/is
absolutely inadequate. It needs a total transformation to turn Nepal into an inclusive state in the
sincerest sense. This transformation is not easy, but nonetheless is a must. Also, looking at the
progression achieved at the global level, Nepal cannot simply ignore the demands for universal
social protection measures reinforced by the aspirations for an inclusive state. Across the globe,
states are being able to learn lessons from the pains humankind suffered from extremist social
policies aggravated by religious and ideological obsessions, inter alia. Among others, the twentieth
century saw two political extremes: class biased exploitative capitalism, and class biased ruthless
socialism. These ideological extremes blatantly undercut basic welfare conditions of the people,
which are, indeed, inexorable part of human rights.
30
Classically capitalists denied social, cultural, and economic rights, whereas socialists denied the
political rights of the people. With the emergence of socialism, the capitalist states started the
necessary reform process to show that they are more efficient and inclusive than the socialist states
in the fair distribution of public resources (goods and services) and creating better equity conditions
for the poor and weaker sections of society. On the other hand, the collapse of socialism in Eastern
Europe showed that despite their ideological claim of making equitable conditions of life, socialist
states failed miserably to achieve equity and equality, rather they have produced stark inequality (in
most socialist countries the Gini coefficient is much higher than in many liberal democratic
countries) and deprivations of the people from political participation. In recent times, especially with
the growing importance of human rights standards, both capitalists and socialists systems have been
compelled to change their classical class biases by adopting social protection measures to protect
people from social, political, and economic hazards. At this political crossroads, Nepal can learn to
prevent these extremes and wisely build its social political system buttressed by effective social
protection laws and policies in the future.
The China Development Research Foundation derived a thought-provoking conclusion. It argues
that the responsibility of individuals, market, and state is must for a social welfare system to improve
the quality of life. It considers the social welfare or protection system as the fundamental condition
for nation building. It has understood the role of institutions under which the government seeks to
provide citizens with funds and services to ensure a certain standard of living and the best possible
improvement in quality of life with universal social protection system (CDRF, 2012).
Welfare policies pursue several social and political objectives: fighting poverty, reduction of
inequality, creating equitable society, and emancipating people from several types of dependencies
and risks. However, designing an efficient social protection policy is not easy. Though, it is possible
with comprehensive and interdisciplinary research and apolitical efforts. Partisan politics might be
counterproductive in ensuring better policy goals. Also, including, directly and indirectly affecting
everyone with the costs and benefits, and stressed by the controversies on universal and selective
nature of welfare policies, the social protection system may summon many externalities. Simply take
an example of unemployment benefits. In a country like Nepal, where majority of the people are
either unemployed, underpaid, or have no earning source. Moreover, the responsibility of public
defrayment in the private sector is still extremely low. Self-employed individuals and people engaged
in subsistence farm sector might spread out more complex internalities and externalities in
numerous ways including demanding a universal coverage, which could neither be denied easily nor
accepted straightway.
Thus, demands for social protection measures often open basic economic, social, and political
challenges. If these challenges are not wisely addressed or at least put into pipeline by devising an
effective policy to address them progressively, the concept of an inclusive state may convert to an
implausible hoax posing real policy challenges for a stable polity. It is a high time for the Nepalese
polity to firmly establish that social protection policies play vital role in bringing the state and
government closer to the people and unite the people with a sense of belongingness by ensuring
31
necessary social benefits and protections. In this regard, the future constitution of Nepal is expected
to play profoundly important role.
4.3The Rule of Law and Justice
A long time ago, Alf Ross strikingly observed that, “All wars have been fought by all parties in the
name of justice, and the same is true of the political conflict . . .” (Ross, 1958).53Despite being the
most elegant and powerful source of unity and the foundation of a dignified human life; a few basic
questions about justice are recurrent. What do we mean by justice? What are its preconditions? How
injustices could be reduced or ended? Today, the Nepalese discourse on nation building is largely
propelled by these perennial questions.
With some exceptions, one common thread found in almost all theories of justice reveals that they
tend to explain justice as a proposition disjunctive of positive law, but conjoined with moral
standards, virtue, or a political ideology based program that would help to reduce injustice. These
explanations of justice are primarily disengaged with the idea of rights. In other words, in any
modern civic state, human behaviors (personal, social, and institutional) gain legitimacy only in the
forms of rights and duties created by positive laws. No such behaviors are valid, legitimate or
authoritative (enforceable) unless they belong to the domain of law. Thus, any persuasive theory of
justice should demand explanation of law, which is the only valid source of justice. In fact, law is
justice. However, this idea is not a new one.54
53. SeeALF ROSS, ON LAW AND JUSTICE 269 (London, Stevens & Sons Ltd. 1958).
54SeeKAUTILYA’S ARTHASHASTRA location 3502 (R. Shamasastry trans., Spastic Cat Press, Kindle 2009). Kautilya in
3rd Century BC contributed a book called Arthasastra (economics). In fact this book is not confined to economics alone
but covers law, legal system, governance, and finance as well. In Book III Chapter I, Kautliya sets the duties of a king
(ruler). Among many other duties, imparting justice was one of the main duties of a king. King was required to deliver
justice in accordance with law. Kautilya identified four types of laws: sacred laws (Dharma), evidence (vyabahara),
customary practices (custom), and edicts of a king (positive law). In case of conflict between these four laws, Kautilya
clearly prescribed the superiority of positive laws. In this regard, Kautilya can be regarded as one of the early founders of
positive jurisprudence.
32
Chart III: Normative and Positive Domains of Law
Domains of
Law
Non
Prescriptive
Normative
Moral or
Ethical
Resoning
Practical
Reasoning
Prescriptive
Justice
Right thing to Do
Political
Reasoning
Positive
Authorized
Disabled
Facilitated
Limited
Permitted
Prohibited
The claim, law as justice might be considered as uncomfortable, especially when governments
perpetuate injustice, distort law, deny rights of the people, subjugate people to the command of
tyranny, and also do not leave any scruple when killing people in name of politics, civil war, or in any
other forms. In this context, the most pertinent question arises that how could laws be good in
ensuring fairness?
A sound system of legitimacy, authority and validity in place ensures the goodness and fairness of
law, which are practically achievable in a liberal democracy. John Rawls, one of the most influential
philosophers of the 20th century55 offers a practical idea of justice congenial to a liberal democracy.
In his conception, fairness is justice or justice is fairness (Rawls, 1985).56 About the profound
importance of justice, Rawls observes that, “Each person possesses an inviolability founded on
justice that even the welfare of society as a whole cannot override. Therefore, in a just society the
rights secured by justice are not subject to political bargaining or to the calculus of social interests
(Rawls, 1971).”57 Today, the problem of nation building in Nepal is highly battered with the
55. On November 27, 2002 the Guardian wrote about Rawls, “A leading political philosopher in the tradition of
Locke, Rousseau and Kant, he put individual rights ahead of the common good . . . Rawls never wrote about himself,
and virtually never gave interviews . . . With the death of John Rawls, . . . the English-speaking world lost its leading
political philosopher. An exceptionally modest and retiring man, with a bat-like horror of the limelight, he consistently
refused the honors he was offered, and declined to pursue the career as public commentator or media guru opened to
him by his achievements.” See Ben Rogers, John Rawls, THE GUARDIAN (Nov. 7, 2002), available at
<http://www.guardian.co.uk/news/2002/nov/27/guardianobituaries.obituaries>.
56. See John Rawls, Justice as Fairness: Political Not Metaphysical, 14 PHILOSOPHY & PUBLIC AFFAIRS 223-251, at 223
(1985). Rawls observes, “Briefly, the idea is that in a constitutional democracy the public conception of justice should be,
so far as possible, independent of controversial philosophical and religious doctrines.”
57. SeeJOHN RAWLS, A THEORY OF JUSTICE quoted in the back cover (Cambridge, MA, The Belknap Press of Harvard
University Press, 1971).
33
experience of pushing everything under the rubric of political bargaining, including the equal rights
of men and women, the rights of citizenship, and the system of justice as a whole. The question is:
could this political approach be complementary for a democratic nation building in Nepal?
“Justice as Fairness” is not only a popular phrase commonly used across the globe in almost all
social science disciplines under the influence of Rawls, but also represents a deep explanation of the
idea of justice. Rawls clearly departs from the conception of Kantian justice by claiming that ‘justice
as fairness’ is not a metaphysical conception but a political conception of a liberal democracy. As a
metaphysical concept, it always gives priority to the laws of reason (moral laws) over the positive
laws. Rawls considers such an idea would be detrimental to democracy; instead he offers how laws,
including a constitution, could incorporate the idea of justice and implement it as a part of the rule
of law.58
In any society, in real practice, it seems that the behaviors of persons (legal and natural) are guided
not only by the positive laws but also by normative standards in the forms of moral, ethical, and
political reasoning, among others. Most of the justice theories explain justice in the form of ‘a right
thing to do’ from diverse normative standards, which in fact exposes the striking inadequacies of
these theories. These normative standards bear at least three features. First, they are not legally
binding. Thus, they cannot create legal claim. Their concept of rights and duties are moral but not
legal. If these moral rights and duties are contravened, one cannot get remedy through enforceable
formal structures or the court. Second, in the worst case, these normative standards might offend or
defy law. If they happen to defy law, they will be punishable with the prescribed standards of law.
Thus, logically the domain of prescribed law denies their independent existence. Third, in a normal
situation, they might constitute customary practices compatible with positive law. In this sense too,
they fall into the domain of positive law, since positive laws confirm the legitimacy of the customary
practices,in other words, either way the normative standards lose their autonomy. When we closely
look at the first feature, it seems an oddball. In a real, practical sense, eventually either it swings to
the second or the third feature. In both cases, it loses its self-regulating existence, having said that, it
may endure civic discourse.
Thus, in a modern civic state, morality, ethics, ideology, and all governing standards are expressed
through the fountain of laws. In fact, the whole purpose of constitution making subsists in
institutionalizing a civic state. No autonomy and authority of morality and ethics exists in the
defiance of law. However, any standard recognized by law instantly loses its autonomy and turns
into a positive standard. To a certain extent, this process recalls the Hartian union of primary and
secondary rules. Consequently, any attempt to conceive justice beyond the positive domain of law
58. See John Rawls, Kantian Constructivism in Moral Theory, 77 JOURNAL OF PHILOSOPHY 515-572, at 516-517 (1980).
Rawls mentions that, “The leading idea is to establish a suitable connection between a particular conception of the
person and first principles of justice, by means of a procedure of construction. In a Kantian view the conception of the
person, the procedure, and the first principles must be related in a certain manner-which, of course, admits of a number
of variations. Justice as fairness is not, plainly Kant’s view, strictly speaking; it departs from his text at many points. But
the adjective ‘Kantian’ expresses analogy and not identity; it means roughly that a doctrine sufficiently resembles Kant’s
in enough fundamental respects so that it is far closer to his view than to the other traditional moral conceptions that are
appropriate for sue as benchmarks of comparison.”
34
will be counterproductive. At this point, a question can be raised that: what if the law itself is
undemocratic, oppressive, treacherous, and unjust?
The rule of law being embedded in its purity engages in discourse with normative concepts and in
turn transforms them into positive constructs if the normative concepts fit into its methodology,
especially in the course of making rules. As soon as the rules are posited with the methodology of
welfare-grundnorm (WG), the normative concepts yield to the posited rules, otherwise the idea of a
limited government or government by law, not by men, turns out to be futile. It is understandable
that normative standards produce biased, partisan, narrow, and disharmonious socio-politico,
economic and cultural conditions. The remedy to these problems cannot be found in any ideology
but in their positive osmoses accomplished through the methodology of welfare-grundnorm bolstered
by the features of legitimacy, enforceability, and authority. In short, the success of nation building
profoundly depends on the success of institutionalizing the concept of rule of law or
constitutionalism in its highest form.
5. Conclusion
In the post-2006 period, Nepal has entered into a new phase of nation building. The new phase of
democratic nation building in Nepal formally begins with the promulgation of the new constitution.
However, the democratic nation building process is not simple and without any challenges ahead.
First, managing the dichotomy between exclusionary belongingness and inclusionary belongingness
is still looming large in this process. Failure to manage this dichotomy with a conceptual and
theoretical clarity and political vision might invite a new round of conflict in the country. Second,
with the denial of the citizenship rights on the grounds of individual autonomy, the democratic
values have again been contained in a gender-biased fault lines. This fault line deprives to emerge the
sense of equal citizens and belongingness on the grounds of civic identity. Third, Nepal is transiting
from a unitary structure to a federal structure, which is a new institutional set up in the political
history of Nepal. If the new institutional structure could not stop the malaise of power relationships,
it might be fraught with political vicissitudes. Fourth, the success of nation building process in Nepal
depends on the effectiveness of the state and institutions in creating a conducive environment for
institutionalizing the ideals of equal citizens, fair and competitive market, universal social protection,
and constitutionalism, which is the highest form of the rule of law. In short, institutionalizing a
liberal democracy in Nepal stands as the mission of nation building ahead.
This paper has examined nation building as the process culminating in the institutionalization of a
liberal democracy. Since authoritarian regimes fail to ensure the concept of equal citizen, and the
rule of law; it is not possible for any authoritarian or illiberal regimes to accomplish the process of
nation building. However, as discussed above, the concept of a nation is not as simple as it is used in
the daily political discourses. Often, nation is misunderstood with the primordial belongingness.
Against this background, this paper has also briefly examined the evolutionary stages of nations
from a tribal system of social organization to a sovereign state and the global society.
35
The unjust power relationships in Nepal have always been the main source of political contestations
and challenges to the process of nation building. The case of Nepal shows that power has either
been exercised beyond the premise of authority or authority has often been manipulated to exploit
the state apparatus for vested political interests or personal benefit. Therefore, the solution to the
problem of power relationships can be vivaciously pursued with the positivity of the system. It is yet
to see how robust will be the new federal institutions in this direction.
The end result of social inclusion and political participation is to institutionalize the idea of equal
citizens in society. The concept of equal citizens does not mean that each individual should be equal
in terms of wealth and resources, which is utopian and impossible to achieve at least from the
present day realities. But what is theoretically and practically possible should be achieved in earnest.
It requires at least three specific actions or programs in the context of Nepal. First, it should end the
caste system theoretically as well as from the mindset of the people. Theoretically, the Draft
Constitution, Interim Constitution, and other laws of Nepal have ended the caste system. However,
it is still in the mindset of people and exists in the social realm. Second, expanding the choices of the
people through creating an enabling environment can reduce both absolute and relative poverty,
help people to manage risks, and create competitively qualitative human resources. The enabling
environment consists of a universal social protection, commodification of human resources, and the
rule of law. Third, to break the unjust power relationships, power should be legitimized within the
framework of authority and rights. Among many other severe problems, gender biased citizenship
policy exposes how pervasively the unjust power relationship is eroding the opportunity of people to
be integrated into the social structure with the full sense of belongingness. Here comes the earnest
role and litmus test of political leadership, from the local to the national level.
The analysis of power relationships is so important because power has all potential to steer any
political system either to a rule by law system or to the rule of law system. Under a rule by law
system, laws are mere instruments to serve the political interests, which Nepal experienced
throughout her history. The rule of law is a system where no power exists beyond a positive legal
framework, which legitimizes power only in the forms of authority and rights and checks all the
abuses of authority through a number of counter-hegemonic mechanisms in place. The success of
the new constitution and the federal structure will be deeply influenced by what system we choose
theoretically and how we implement it in practice. This choice will also decide the nature and scope
of the participatory democracy in Nepal in cementing the sense of belongingness.
As suggested by John Rawls, there are two methodologies to solve the problems of social and
economic classes. First, priority of liberty, i.e., everyone should be treated equally in terms of liberty
and freedom, which cannot be subjected to any preconditions including caste, ethnicity, and unequal
citizenship status. Second, managing inequality, i.e., in reality if one cannot enjoy liberties and
freedom equally to others due to being unequal in terms of capacity, resources, and skill, there
comes the role for just institutions. By managing inequality, the level playing field can be expanded
and the incapable, poor, and unskilled people can be lifted with planned activities in building
capacity, securing access to resources, and enhancing skills. For Rawls only institutions that take
these responsibilities are just. In other words, only just institutions can establish a well-ordered
36
society (Rawls, A Theory of Justice, 1999, p. 398) that in a true spirit accomplish the project of
nation building.
Rawls further emphasizes that it will be seriously defective if the people and institutions fail with a
requisite desire to act upon these basic ideas of a well-ordered society. When individuals and groups
pursue only interests in themselves, it is impossible for them to have a sense of justice. The best way
is to design arrangements so that from self-or group-interested motives, citizens are persuaded to act
in ways that maximize the sum of wellbeing (Rawls, A Theory of Justice, 1999, p. 399). Perhaps, by
designing robust programs and activities for building capacity, ensuring access to resources, and
enhancing skills, the Nepalese state could be effectively restructured and become more inclusive and
just.
In short, the challenges of nation building—managing identity, creating an environment for equal
citizen, ensuring universal social protection, and justice—are addressable only under a system of
constitutional governance, i.e., a liberal democracy where all power relationships, including political
ideologies are brought within the scope of a constitution. That is why the concept of a liberal
democracy should determinedly stand at the core of nation building.
37
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