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NATION BUILDING: CHALLENGES

AND OPPORTUNITIES - Surendra Bhandari1

Abstrac t

This paper explains nation building as the process founded in four key propositions: institutionalization of the idea of equal citizens, building market, realization of universal social protection, and the entrenchment of the rule of law. These four propositions are essential for addressing the issues of identity, ethnicity, clash of civilizations, ending gender discrimination, solving the 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 roots in tribal and ethnic belongingness to the idea of allegiance subsisted in the concept of sovereignty, these four propositions provide the grounds for building a liberal democratic nation. Since the beginning of the nineteenth century, in particular, the idea of sovereignty became so powerful that it created modern states all over the world. The modern states, referred to by different epithets—nation, 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. Therefore, the idea of equal citizenship alone could be a weak link in the chain, in the absence of a liberal democracy. Thus, these four propositions, along with their historical connections with the idea of sovereignty, have been fortified in the post-war era as the foundations of liberal 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 democratic and post-constitutional nation building in Nepal.

1. INTRODUCTION: NATION AND BELONGINGNESS

Conceptually, the concept of nation carries either exclusionary or inclusionary premise. Under the exclusionary paradigm, a nation is understood in the purity of breed, religion, language, and culture. As a result, it excludes people from other breeds, religions, languages, and cultures from being constructed within the framework of a nation. Consequently, it seeks the values developed on the backcloth of a singular identity of breed, religion, language, and culture as the governing explanatory tool of a nation. Understandably, the exclusionary paradigm applies to both territorial and non-territorial contexts of belongingness. As a territorial concept, it promotes a sense of belongingness united by a common descent shaped by a historical living in a specified territory, which

1. Dr. Surendra Bhandari presented this paper at a program organized by the HIDR in Kathmandu in March 2015.

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in its pure form denotes a tribal relationship. As a non-territorial 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 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 citizenry belongingness under a sovereign state or beyond borders as a member of the global community. With these developments, the concept of nation has permitted an inclusionary description.

With inclusionary belongingness, individuals prioritize legal political relationships and cooperation among each other beyond the tribal, religious, cultural, and ethnic descriptions. Inclusionary belongingness or inclusiveness, thus, articulates a new form of political identity, i.e., a civic identity as the expression of ‘equal citizens’ belonging to a sovereign political entity. Despite this fact, in the post-1990 global order, civic identity has been strained due to some efforts to transport ethnicity to the center of describing belongingness. Modern states almost everywhere in the world are facing this dichotomy as a challenge in managing ethnic identity by cohabiting it within the framework of a 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. This paper primarily examines the Nepalese issue of nation building, which is politically subtle and socially sensitive, ethnically controversial, but constitutionally and civically 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, discussed in Section 2. Section 3 examines the three phases of nation building in Nepal. Section 4 presents the challenges of and solutions to nation building in Nepal. The final section, i.e., Section 5, summarizes the main arguments and concludes the paper. In short, each of these sections is founded on the idea of nation building composed of four features, as shown in Charts 1 and 2 below.

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Chart 1: Essential Pre-Conditions for the Existence of a State

Chart 2: Essential Features of Nation-Building

Achieving and institutionalizing these four features (equal citizens, market, universal social protection, and governance in accordance with the rule of law) is essential for building a modern nation. Though, specific territory, population, government, and international recognition are factors that legitimize the existence of a state. This paper analyzes the concepts and processes of nation building without exploring the historical conditions of the existence of nations. The charts above show the distinctive features of the existence of a state and nation building. Against the background of these distinctive features, in the following sections, the concepts and processes of nation building in Nepal will be examined.

2. HISTORICAL PROCESSES OF NATION BUILDING

The global experience has shown that market and universal social protection are achievable irrespective of the polarization in political systems. China is a notable example in this regard.2 Despite this fact, most authoritarian regimes have historically failed to realize the concept of equal citizens and the rule of law, which have been achieved in liberal democratic states only. To understand a liberal democratic state as the highest form of nation3 and the aim of nation building, the 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.4 Further, to underscore the

2. See CDRF, CONSTRUCTING SOCIAL WELFARE SYSTEM FOR ALL IN CHINA xxx-xxxi (Routledge, 2012).

It 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.”

3. See FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN xi (The Free Press, 1992). 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. See generally PETER FURTADO & HUSSEIN BASSIR, HISTORIES OF NATIONS: HOW THEIR IDENTITIES

WERE FORGED (Thames and Hudson Ltd, 2014); see also AZAR GAT, NATIONS: THE LONG HISTORY AND

Exi

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Population

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International Recognition

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Equal Citizen

Market

Universal Social Protection

The Rule of Law

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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 of creating conducive environment for equal citizens, building market, institutionalizing universal social protection, and governance in accordance with the rule of law, which are, in their totality, achievable under a system of liberal democracy.

The basic features of the 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 of the distinction of race, color, gender, language, religion, ethnicity, or any other background. On the other hand, exclusionary identity focuses on human cooperation and relationships in which race, color, gender, language, religion, and ethnicity are at the core of the system. Today, the modern but weak states are deeply fraught with this dichotomy; especially in this age of universalism, the demands for exclusionary identities are not only increasing, but have put states under considerable strain. Managing this dichotomy is certainly a new challenge to modern sovereign states, including Nepal. Among others, the future course of nation building in Nepal seems to be profoundly affected by this dichotomy. Chart 3 below shows the historical progression of nation building in general.

An unsophisticated body of people united by breed and descent, along with sharing a common inhabitation, appears in its purity possible only 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 in almost the same defects as those of tribal society, ethnic belongingness failed to assume cooperation among inter-ethnic groups.

Chart 3: Changing Nature of the Concept of Nation

The need to address its defects unlocked a door for a nation, a higher form of political organization, where multiple groups and communities live together, forming a political relationships. Nation as a political entity also established political supremacy over the forms of exclusionary belongingness, including religion. Although, history has witnessed

DEEP ROOTS OF POLITICAL ETHNICITY AND NATIONALISM (Cambridge University Press, 2013); JAWAHARLAL NEHRU, GLIMPSES OF WORLD HISTORY (New York, The Hohn Day Company, 1942); H. G. WELLS, A SHORT HISTORY OF THE WORLD (New York, The MacMillan Company, 1922).

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nations competing for expanding territory, which escalated from local conflicts and wars to hegemonic imperialistic dominations across the globe.5

Finally, with the emergence of the concept of a sovereign state, the idea of belongingness—previously centered on breed, descent, religion, and ethnicity—has been transformed into legal-political relationships as the standard of cooperation, referred to as civic identity or civic relationship. More conceivably, this transformation has redefined the entire concept of a nation and belongingness inspired by the idea of equal citizens. Among others, the challenges of nation building in Nepal have been concentrated 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 positioned around the issue of nation building.

3. Nation Building in Nepal

Inopportunely, the concept of nation building in Nepal has proved to be endlessly contentious, like many other social and political issues. Currently, with respect to the issue of nation building in Nepal, there seem to be four broad paradigms influencing the political discourses: identity-based nation building, restructuring the state from a unitary to a federal structure, inclusiveness of the state, and democratic nation building. While identity-based nation building shares the features of an exclusionary belongingness, democratic nation building incorporates the idea of inclusionary belongingness. Restructuring of the Nepalese state from a unitary to a federal setup may proceed via either path, or become a hotchpotch of both exclusionary and inclusionary belongingness. The constitutional design signposts it in a model of inclusionary nation building. Similarly, the idea of inclusive state and inclusiveness in the post-2006 political scenario has been widely misunderstood, as it was often understood in importing into its contents the characteristics of exclusionary identity, as discussed above. In fact, the constitution-making process in Nepal in the 2008-2015 period had been deeply affected by the controversies among these different paradigms. The 2015 Constitution has made some efforts to accommodate all these three paradigms. Yet, at the same time, it has been criticized for being inadequate in managing them.

Conceptually, nation building is a historical, sociological, political, and constitutional process. However, it is not a singular event; rather, it is a continuous process spanning from the stage of gaining a modest socio-political 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. In fact, it is hardly ever accomplished. Indeed, it undergoes 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 to a higher level of nation

5. See generally ROBERT C. YOUNG, EMPIRE, COLONY, POST-COLONY (Wiley Blackwell, 2015).

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building—from formative to democratic and post-nation state phases—as shown in Chart 4 below.

Chart 4: Phases and Steps of Nation-Building

In the formative phase, nation building might incorporate three of the eight steps listed in the chart above. 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 that started with the unification of Nepal in 1775 has also shared these three characteristics.

In a democratic phase, nation building combines all eight steps shown in Chart 4 above. The democratic phase of nation building in particular heightens the sense of belongingness with universal ideals applied and practiced according to 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 cannot be managed on the ideals of equality of citizens, universal social protection, and justice, they may result in a deeper conflict. Disconcertingly, in this phase of democratic nation building, Nepal is facing the challenges arising from the dichotomy between ethnic and civic identity. At the same time, Nepal has also entered the post-nation phase of state building entrenched in the idea of global constitutionalism.6 In this post-constitutional phase, states engage in

6 . See generally SURENDRA BHANDARI, GLOBAL CONSTITUTIONALISM AND THE PATH OF

INTERNATIONAL LAW (Brill, 2016); P. KJAER, CONSTITUTIONALISM IN THE GLOBAL REALM: A

SOCIOLOGICAL APPROACH (Routledge, 2014); Surendra Bhandari, Global Constitutionalism and the Constitutionalization of International Relations: A Reflection of Asian Approaches to International Law, 12 RITSUMEIKAN ANNUAL REVIEW OF INTERNATIONAL STUDIES 1-53 (2013).

Phases of Nation

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Centralizing State

Belongingness as a Melting Pot

Market

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harmonizing their domestic orders with the demands of the international order. As a result, the traditional concept of sovereignty transforms into a post-national sovereignty. In this phase, sovereignty bears responsibilities under the international law.

Chart 5 shows three phases (Formative, Democratic, and Post-Nation State) and eight steps (sovereignty, centralizing state, belongingness as a melting pot, 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. The remaining five steps indicate a higher and stronger level of nation building, which are mostly institutionalized in liberal democratic states. Today, nation building in Nepal still critically lacks understanding and appreciation of the profound importance of these eight steps as the basis of nation building.

Chart 5: Phases and Features of Nation-Building

3.1 Formative Stage o f Nation Bui lding

Broadly, offset by the first three basic steps, 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 steps: 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 incorporates all eight steps 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: permanent population, defined territory, government, and capacity to enter

Phases of Nation

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into international relations.7 Most of these features of a sovereign state were present 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.8 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 phase in achieving all of these four criteria of statehood.9 Following the unification, King Prithivi Narayan Shah developed a 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).”10 It indicates that respect, harmony, and tolerance were seen as the baseline of community relationships, despite a few serious aberrations during the unification process.11 In his policy, Prithivi Narayan Shah also emphasized the fact that nation building could only be accomplished collectively by all castes and ethnicities.

In modern Nepal, the idea of a centralized state emerged at the time of Prithivi Narayan Shah, which played a strategic role in creating the grounds of belongingness; however, 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 had been imposed on ethnic communities in the name of nation building. Second, the Nepali language and culture had 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) had governed the country as a ruling class, while excluding the

7. 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.”

8. See JAMES GRISSOM, NEPAL: A BRIEF HISTORY, kindle location 367 (Amazon Digital Services, Inc., 2011).

9. See Prayag Raj Sharma, Nation-building, Multi-Ethnicity, and the Hindu State, in NATIONALISM AND

ETHNICITY IN NEPAL 475 (David Gellner, Joanna Pfaff-zarnecka, & John Welpton eds., Vajra Publications, 2008). Professor Sharma 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.”

10. 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 thirty-six 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 by 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.

11. See C. KIRKPATRICK, AN ACCOUNT OF THE KINGDOM OF NEPAL 164 (London, W. Bulmer Co. 1811). Kirkpatrick 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.”

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janjatis (ethnic communities) from political participation. Fourth, in the name of reform, the land of janjatis (especially of the Kipat land) had been nationalized by the State. Broadly, these four arguments can be divided into two theoretical categories: imposition theory and exclusionary theory.

Remarkably, in the post-1990 democratic period, some scholars purported the unification itself as the source of Hinduization.12 Cogency of their claim comes from the statement of King Prithivi Narayan Shah himself, who viewed Nepal as ‘a real Hindustan,’ a land of Hindus.13 A number of explanations for the origination of the concept of Hindu, Hindustan, and Hinduism can be put forth. One of them is related to geographical connotation covering all people living in the Hindu Kush region, where both Caucasians (Indo-Aryans) and Mongols dwelt, among others. Historically, among the neighboring countries of Nepal, China was primarily land of people of Mongolian origin, whereas Caucasians were 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 dominant position and lived together in cooperation. In this context, it would not be uncommon for Prithivi Narayan Shah to recount Nepal as the real Hindustan, denoting 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.14 From this perspective too, Prithivi Narayan Shah should have used the term ‘real Hindustan,’ to narrate the unified land as the true homeland of different cultures, beliefs, and social systems, which Nepal truly is.

12. See Harka Gurung, State and Society in Nepal, in NATIONALISM AND ETHNICITY IN NEPAL 20-33, (D.

N. Gellner, J. Pfaff-Caarnecka, & J. Wheplpton eds., Kathmandu, Vajra Publications, 2008); see also MAHENDRA LAWOTI, TOWARDS A DEMOCRATIC NEPAL: INCLUSIVE POLITICAL INSTITUTIONS FOR

MULTICULTURAL SOCIETY (New Delhi, Sage Publications, 2005).

13. 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.

14. See J. LIPNER, HINDUS: THEIR RELIGIONS BELIEFS AND PRACTICES (Routledge, 2010). Lipner 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.” See also N. C. CHAUDHURI, HINDUISM: A RELIGION TO LIVE BY (London, Chatto & Windus, 1979).

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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.”15 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.”16

In their formative stage, sovereign states all over the world were generally directed to acquire better security and greater opportunities for trade and business, albeit often at the cost associated with accommodation, assimilation, and integration, which sociologists and political scientists, including Karl Marx, 17 Max Weber, 18 and Robert Park, 19 acknowledge as regular and essential. The centralizing 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

15. See Krishna Bahadur Bhattachan, Ethnopolitics and Ethnodevelopments: An Emerging Paradigm in Nepal With a Postscript, in NATIONALISM AND ETHNIC CONFLICT IN NEPAL: IDENTITIES AND MOBILIZATION AFTER 1990S (Mahendra Lawoti & H. Susan eds., Routledge, 2013). 16. See Rajendra Pradhan, Ethnicity, Caste, and a Plural Society, in STATE OF NEPAL 1-21 (Kanak Dixit & R. Shastri eds., Kathmandu, Himal Books, 2010).

17. 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 7 (London, Lawrence & Wshart Ltd., 1946); 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.”

18. See MAX WEBER, ECONOMY AND SOCIETY 387 (Guenther Roth & Claus Wittich eds., New York, Bedminster Press, 1968). 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 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; . . .”

19. See Robert E. Park and W. I. Thomas, Participation and Social Assimilation, in SOURCE BOOK FOR SOCIAL PSYCHOLOGY 47-53, (Kimball Young ed., New York, A.A. Knopf, 1927).

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system of law at the formal level and contextually, with a unifying language, culture, and religion at the societal normative level.20

However, also under the formative stage of nation building in Nepal, using different languages, and practicing different cultures and religions had been permitted. 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, another language(s) and culture(s) would likely be adopted to serve 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 elucidated through the words of historian H. G. Wells, who noted that “. . . institutions, customs, and political ideas grow up slowly, age by age, no man foreseeing.”21

The Ranas austerely legitimized the caste system. They 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 lose their hold. 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 transformed Nepal into a Hindu State. 22 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 major mainstream political parties.”23 Further, he claims, “. . . political opportunities emerged for marginalized groups in 2002, when the King usurped power.”24 A distorted understanding, such as that presented by Mr. Laoti, simply defeats the basic concept of inclusiveness, which has remained a highly problematic issue in the country even after the promulgation of the 2015 Constitution.

20. See PIERRE MANENT, A WORLD BEYOND POLITICS: A DEFENSE OF THE NATION STATE (Translated by Marc LePain, Princeton University Press, 2006). 21. See H. G. WELLS, supra note, at 451.

22. 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 provided that, “Nepal is an independent, indivisible, sovereign, secular, inclusive and federal, democratic republican state.”

23. See MAHENDRA LAWOTI, TOWARDS A DEMOCRATIC NEPAL: INCLUSIVE POLITICAL STRUCTURE FOR A MULTICULTURAL SOCIETY 317 (New Delhi, Sage Publication, 2005).

24. 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).

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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 post-1990 democratic phase, demands no proof that such faulty perspectives are mired in purely elitist interests. In fact, during the formative phase of nation building in Nepal, different cultures, religions, and languages were not banned, but were 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, several 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 Democrat i c Stage o f Nation Bui lding

With its intrinsic features, the democratic stage of nation building distinguishes itself qualitatively from the formative stage of nation building both at a formal and a functional level. In the post-1990 era, most of the features of a democratic nation building started to develop, but were starkly lacking a few important features, which were criticized by 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 Hindu State

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,’ but somehow persisted in the post-1990 era as well. 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 such as Dashain and Tihar, declaring them as the intrinsic parts of the Aryan culture. Nevertheless, some ambivalence was also evident. 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.25 Moreover, the Aryan community accepted these criticisms without questioning them. The post-1990 era also saw the breakdown of the ‘common attire’ panchayati policy. The legitimization of a ‘Hindu Kingdom’ by the 1990 Constitution existed disgracefully, which had 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. Finally, with the establishment of a secular state by the 2007 Interim Constitution, 26 along with the legitimization of a secular state under the 2015

25. Id.

26. Article 4 of the Interim Constitution, 2007, recognized Nepal as a secular state.

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Constitution,27 the major issues of imposition have finally been addressed at the formal structural level.

However, the explanatory note added to Article 4 while finalizing the 2015 Constitution defines the term ‘secular’ in a non-secular way. This last-minute change had taken place against the background of prevalent public opinion and pressures for a Hindu state. Nevertheless, the explanatory note cannot reduce or take away the main provision or the idea of secular state. In this context, Article 3 of the 2015 Constitution is instructive, as it provides that all the Nepalese people collectively constitute the nation.28

Nevertheless, the post-constitution Madhes agitation was not contented with the constitutional definition of the nation. The agitating parties demanded a ‘multi-nation state’ to be recognized by the constitution. One of the commentators observes that, since the federal structure of Nepal is an evolution from an essentially unitary state structure, and not from the coming together of two or more nations in forming the federal structure, it characteristically eludes any possibility of recognizing Nepal as a ‘multi-nation state.’29 In fact, the use of the term ‘nation’ encompassing culture, religion, languages, and ethnicity has sufficiently been reflected under Article 3 and 4 of the 2015 Constitution. On the other hand, demanding the term ‘nation’ to denote the unity of sovereign or independent political entities in the course of forming a federal structure of Nepal only tantalizes unrealistic political anchorages.

Language Policy

Despite embracing the conceptually all-encompassing policy of a ‘nation’30 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). 31 Moreover, its language policy also became adversely contested because of its inconsistencies in defining the relationships 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.

27. Article 4 of the 2015 Constitution recognizes Neal as a secular state. Article 4 reads, “Nepal is an

independent, indivisible, sovereign, secular, inclusive democratic, socialism-oriented federal democratic republican state. Explanation: for the purpose of this article, ‘secular’ means protection of religion and culture practiced since ancient times, including religious and cultural freedom.” 28. Article 3 of the 2015 Constitution provides that, “Having multiethnic, multilingual, multi-religious, and multicultural characteristics with the common aspirations of people living in diverse geographical regions, and being committed to and united by the bond of allegiance to national independence, territorial integrity, national interest, and prosperity of Nepal, all the Nepali people collectively constitute the nation.” 29. See Pratik Karki, Through the Lenses of the Constitution: the Nepal Crisis Explained, www.firstpost.com, January 9, 2016.

30. 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.”

31. 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.”

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Nonetheless, 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.32 Further, it had also constitutionalized the right to educate children in their mother tongue “up to the primary level.”33 Barring this clause, the linguistic model provided by the 1990 Constitution marked a qualitative progression compared to the panchayati language policy. Instead of welcoming those positive developments, the resurfaced primordial arguments referred to them as regressive moves for the continuation of the imposition of Nepali language as the official language in the country.34 This prompts the question: if the language model postulated in Article 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 Constitution have addressed this question by revising the language policy of the 1990 Constitution with some substantive improvements. Article 535 and 1736 of the 2007 Interim Constitution and Article 6,37 7,38 and 3239 of the 2015 Constitution are qualitatively advanced and inclusive compared to Article 6 and 18 of the 1990 Constitution. These advances are noteworthy, as discussed below.

First, Article 5(3) of the 2007 Constitution and 7(2) of the 2015 Constitution provide opportunities to use languages other than Nepali language as the official languages of the provinces. This development has opened a door for different mother tongues to retain official status at the provincial level. With this transformation, among the 123 mother

32. 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.”

33. 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.”

34. 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.

35. 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.”

36. 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 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.”

37. Article 6 of the 2015 Constitution provides that, “All languages spoken as mother tongues in Nepal are national languages.”

38. Article 7 of the 2015 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 the majority of people in the province as the official languages of the province.”

39. Article 32 of the 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 heritage.”

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tongues spoken in Nepal, a few regionally dominant mother tongues will have a chance to be used as the official languages at the provincial levels.

Second, the right to obtain education ‘up to the primary level’ in mother tongues contained in Article 18(2) of the 1990 Constitution had been replaced by a ‘right to receive basic education’ in mother tongues under Article 17(1) of the 2007 Constitution. The 2015 Constitution has further expanded this right. Article 31(5) of the 2015 Constitution ensures that each community shall have the right to obtain school-level education in mother tongues, as well as to open schools and educational institutions to provide education in mother tongues.

Further, 2015 Constitution has also envisioned formation of a Language Commission responsible for determining the basis for languages in acquiring the status of official language. The Commission can also play important role in devising policies and strategies in protecting and promoting languages across the country.40

These developments, however, are yet to be institutionalized through the implementation of the constitution. Nevertheless, the model adopted by the 2015 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 . . .”41 From the perspective of all practical insights and efficiency, the language policy model offered by the 2015 Constitution can be seen as 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 in 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:

• A sizable number of 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 technological support system of the language.

According to the 2011 census, 123 languages are 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. Several languages, such as Maithili, Bhojpuri, Newari, and Hindi, might satisfy the criteria of official status at the provincial level. Perhaps, in the distant future, any language, including the English language, might occupy the status of an official language in Nepal. Indeed, the growing number of English medium schools and the educated younger generation conversant in

40. See Article 287 of the 2015 Constitution. 41. See Satya P. Mohanty, The Epistemic Status of Identity, in IDENTITIES: RACE, CLASS, GENDER, AND NATIONALITY 392 (Linda Martin Alcoff & Eduardo Mendieta eds, Wiley-Blackwell, 2003).

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English language opens the possibility of English becoming an official language. Still, this estimation is only about the future, far from any possibility at the present moment. Table 1 shows the distribution of the ten major mother tongues.

Table 1: Distribution of Mother Tongues Speaking People (in %)

Position

2011

Nepali Maithili Bhojpuri Tharu Tamang Newar Bajjika Magar Doteli Urdu

1 2 3 4 5 6 7 8 9 10

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

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 unreliable for discerning 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 a 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.42 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 lingua franca. However, in a rapidly growing post-constitutional global order, the Nepali language alone might not be able to attend the Pareto efficiency, let alone Pareto optimal status. Table 2 shows the linguistic diversity in Nepal.

Table 2: Distribution of Linguistic Families 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

42. See Keith Brown ed., ENCYCLOPEDIA OF LANGUAGE AND LINGUISTICS (Elsevier, 2nd ed., 2005).

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Table: Author. Data Source: CBS, Population Census 1952/54-2001.

Based on 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 in 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.

The Exclusionary State

Now, it is apt to examine the realm of exclusion in the Nepalese society, which is characterized as being reflexive of three different features. First, Chettris-Bahuns (especially pahadiya or parbate) as the dominant class have ruled the country, preventing other ethnic groups from participating in the political process. Second, Chettris-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. Fourth, Article 289 of the 2015 Constitution excludes the Madhesi community from acquiring highest official positions in the country. 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, the end of caste system as the solution to the third problem, and amendment to Article 289 as the solution to the official exclusion.

(a) The Issue of Ruling Class

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 clearly evidences 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 kinds of political risks, Chettris, Bahuns, and Newars (CBN) were overwhelmingly exposed at the forefront of the political battles and risks. 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 and describe the Chettris and Bahuns as the ruling class is wrong and unrealistic. It is well known that, in the post-1950 period, especially in the post-1990 period the representatives of different ethnic groups and Madhesi communities held the political positions and power without any discrimination from the local levels to the state organs (for details see Paper 6).

The post-1990 period further ensured an equal opportunity to participate in the political process from the local to national levels. From local governments to the central government, people from different walks of life and ethnicity have been represented on a non-discriminatory basis. Certainly, various ethnic groups have not been represented equally in all forms of political setups, as this seems impossible both theoretically and practically. Theoretically, political participation and representation is not an ethnic process, but rather 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

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threats to the basic ideal of the separation of politics from belief systems. The 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 was further strengthened by the 2007 Constitution. Article 18 of the 2015 Constitution has clearly prohibited any discrimination on the basis of race, sex, ethnicity, caste, religion, or other grounds.43

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. Still, this does not imply 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 the pandemic corruption, excessive misuse of political power and state apparatuses, decadence in the rule of law, and a political obsession with the partisan governance, among others. These problems (injustices) targeted all, irrespective of ethnicity. One exception at the societal level should not be forgotten—the pathology of the caste system—which had placed the dalits at the state of severe disadvantage with respect to political and economic conditions. Otherwise, the affirmative actions alone would be sufficient in distributing equity.

In a multiethnic and multicultural society, as shown by the democratic experiences, a first-past-the-post system alone cannot guarantee inclusive representation. Realizing the deficiencies of such election system, a proportional representation system has been introduced in the post-2006 political era of Nepal. Even though, in many cases, the political parties have manipulated the proportional representation system, the trend and data clearly show that the meteoric rise of inclusive representation in the state is a positive indication in strengthening democracy in the country. However, an important issue unsettled was that to what extent the actors should concentrate on who should rule the country and ignore the question of how it should be governed. When the issue of how the nation should be governed is addressed by the system of the rule of law with an efficient system of separation, checks, and balances of power in place, who should rule is no longer becomes the issue of an prime importance. The concept of who should rule is a derivative to how the nation should be governed or ruled in a democratic system. Sadly, the growing obsession with ethnic political configuration and group representation by aligning with political power sharing may put the issue of ‘how’ within the penumbra of ‘who’ in ruling the country.

Unless actors, the political parties in particular, are committed to the issue of ‘how’ should the country be ruled, in order to satiate their mania for power, they will always place priority on ‘who’ should rule. The concept of ‘who’ brings into limelight the importance of a person or a group; whereas, the concept of ‘how’ gives importance to a

43. Article 18 of the 2015 Constitution provides that, “Right to Equality: (1) All citizens shall be equal before the law. No person shall be denied the equal protection of law. (2) There shall be no discrimination in the application of general laws on the grounds of origin, religion, race, caste, ethnicity, sex, physical conditions, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical origin, ideology, or any other such grounds. (3) The state shall not discriminate among citizens on the grounds of origin, religion, race, caste, ethnicity, sex, economic condition, language or geographical region, ideology and any other such grounds.”

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system and demands groups and individuals to rule the country within the prescription of the system. This difference is mainly built in the distinction between a charismatic leadership role and the rational leadership role. Thus, until citizens themselves are ready to rise above the boundaries of party, ethnicity, community, or group allegiances, it would be hard to defeat the obsession with ‘who’ should rule. Indeed, any impediment in appreciating the importance of ‘how’ the nation should be ruled, it may put the process of nation building under immense pressure. Therefore, the mere existence of a nation is not sufficient for collective progress unless the process encompasses the democratic steps of nation building.

(b) The Issue of Irredentism

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 in 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 has been taken as a means to serve political interests, maintain state power, and create aristocracy as a political frontline. This strategy was in its peak during the Ranas regime. Lands in different forms, such as kipat, birta, jagir, rakam, and guthi,44 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, and rakam systems. In this process, the law also abolished the Kharka land (meadowland), including that owned under the raikar system. The guthi system, on the other hand, was reformed, rather than abolished.

The purpose of the land reform was solely 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. Still, 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 usurped the land in the name of landless people through a

44. 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, see MAHESH CHANDRA REGMI, LANDOWNERSHIP IN NEPAL (University of California Press, 1976); see also MAHESH CHANDRA REGMI, LAND TENURE AND TAXATION IN NEPAL (University of California Press, 1963).

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number of Commissions. 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. Instead, finding the usurpation of land by the panchas and redistribution to the poor landless people, irrespective of any ethnic identity or discrimination, would perhaps be more rational. It would also promote equity. In short, irredentism is inexorably a cyclical move largely argued to serve deep-seated class ambitions, which simply institutionalizes inequality and inequity.

(c) The Issue of Dalits

The deep-rooted social and political evils in Nepal could be imputed to the pathology of caste and dalits. 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.45 Throughout 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 perspectives. Legally speaking, since the commencement of the 1948 Constitution, the concept of equality before the law had continuously existed, and was further attuned by ending the discrimination on the grounds of race, sex, language, and ethnicity. Additionally, the National Code, 1964 (Muluki Ain, 2020 B.S.) under Section 1046 of the Miscellaneous Paper protected social customs 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 that continuously victimized dalits.

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 dalits were treated by Chettris-Bahuns,

45. See JULIES LIPNER, HINDUS: THEIR RELIGIOUS BELIEFS AND PRACTICES, Kindle Location 214

(Routledge, 2nd ed., 2010) The author mentions that, “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 also JOHN 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.”

46. See Section 10 of the Muluki Ain, 2020 (1964), 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 up to one thousand rupees.”

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even in the post-1990 period. Immediately following the success of the second people’s movement in 2006, a new Section 10(A)47 was added to the Miscellaneous Paper 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 had prohibited any discrimination on the grounds of the untouchable status and caste.48 Article 14(2) prohibited discrimination to dalits in regard to using public services, facilities, and utilities.49 Similarly, Article 14(4) prohibited all sorts of social practices leading to the superiority or inferiority classification based on caste or belief systems.50 Under Article 14(5), any act that violated the prohibitions imposed under Article 14 was punishable by law. The punishment was provided under Section 10(A) of the Miscellaneous Paper of the National Code that ranges from three months to three years of imprisonment and one thousand to twenty-five thousand rupees fine, or both.

Moreover, the 2015 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, in line with the saying that ‘Rome was not built in a single day,’ changing social practices may take time. Nevertheless, any social practices that discriminate the dalits are punishable by law. Against this background, it can be optimistically anticipated that the problem of dalits would be ended socially as well.

Article 24 of the 2015 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 services shall be produced or distributed restricting supply, purchase, and distribution to a person belonging to a particular caste or ethnicity; or sold, purchased or distributed targeting a person of a particular caste or ethnicity.

(3) There shall be permitted no practices 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; communicating ideas based on

47. Id., Section 10(A) of the Muluki Ain 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.”

48. 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.”

49. 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.”

50. 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.”

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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) Law shall punish any act of untouchability and discrimination inconsistent with this Article as a serious social crime, and the victim of such an act shall have the right to obtain compensation as prescribed by the law. [Translated by the author]

Further, Article 40 of the 2015 Constitution provides wide ranges of rights to empower the dalits. These rights encompass proportional inclusion, free education and scholarship, healthcare and social security, right to occupation, free land distribution by the state, and free housing arrangements by the state.51

(d) The End of Imposition and Exclusion

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 still holding back the legitimate process of nation building.

In the post-promulgation of the 2015 Constitution, some of its provisions were contested on the grounds of imposition and exclusion. For example, Article 289(1), 42(1), 11(6), and 84(1) have been questioned as being exclusionary. Article 289(1)52 is a new invention in the constitutional history of Nepal, since no previous constitutions had similar provisions. It allows acquiring a few highest positions of the state only to citizens by descent. This provision was supposedly introduced after the modality of some countries that allow only a citizen by descent to occupy the highest position, such as the President or the Prime Minister. However, its necessity not being sufficiently proved, the first amendment of the 2015 Constitution has revised it, which also satisfies the demands

51. See Article 40 of the 2015 Constitution, which reads, “(1) The Dalits shall have the right to participate in all agencies of the state based on the principle of proportional inclusion. Law shall provide special provisions for the empowerment, representation, and participation of the Dalit community for employment in various sectors, including the public service. (2) Free education with scholarships shall be made for Dalit students from the primary to higher education as provided by law. Special provisions shall provide on higher education in technical and professional fields for the Dalits. (3) Special arrangements shall be made in accordance with the law to provide health care and social security to the Dalit community. (4) The Dalit community shall have the right to use, preserve and develop their traditional occupation, knowledge, skill and technology. The State shall give priority to the Dalits to modernize their occupations by providing them with necessary skill and resources. (5) As prescribed by the law, the State shall provide land to the landless Dalits for one time. (6) As prescribed by law, the State shall make housing arrangements for the Dalits who do not have shelter of their own. (7) The facilities provided to the Dalit community according to this Article, shall have to be justly distributed to Dalit women and men and all the Dalit communities living in different parts of the country, ensuring that all Dalits receive the facilities proportionally.” 52. Article 289(1) of the 2015 Constitution provides that, “A person should be a citizen by descent to be elected, nominated, and appointed as the President, Vice-President, Prime Minister, Chief Justice, Speaker of the Parliament, Chairperson of the National Assembly, Head of the Province, Chief Minister, Speaker of the Provincial Assembly, and Chief of Security Bodies.”

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of the agitating parties in Madhes, i.e., Madhesi Morcha.

Article 42(1)53 of the 2015 Constitution uses the term ‘principle of inclusion’ to increase the participation of different communities and left-behind sections of society. Instead of the term ‘principle of inclusion,’ the Madhesi Forum demanded to replace it by the term ‘proportionally inclusive’ with a view to ensure better participation of the Madhesi community in the state organs. Nevertheless, the 2015 Constitution itself has incorporated the concept of ‘proportional inclusion’ under a number of provisions, such as the Preamble, Article 38(4),54 40(1),55 50 (1), and 285(2). However, the proportional inclusion under Article 38(4) pertains to women only and under Article 40(1) to the dalits. Article 285(2)56 ensures proportional inclusion to all in the federal public services. However, the nuances and distinctions between the ‘principle of inclusion’ and ‘proportional inclusion’ have not been properly understood. If the term ‘proportional inclusion’ indicates that each ethnic, religious, linguistic community, or any other groups, should have a share in the state organs and agencies proportional to their population, perhaps implementing such provision would be difficult. Further, it would also risk the merit-based system in the country.

Article 11(6) provides that any foreign woman married to a Nepali citizen man can acquire naturalized citizenship in accordance with the federal law. This issue has been discussed in detail in Paper 4 of this book. However, in short, it can be stated that the discomfiture of the Madhesi community to this provision is related to two factors. First, it may hinder or require burdensome conditions to acquire naturalized citizenship to the foreign woman marrying Nepali man. Second, the provision deprives children from acquiring citizenship by descent, thus making them further marginalized and deprived of opportunities under Article 289(1).

Article 84(1) 57 uses the term ‘geography and population’ in determining the 165 constituencies under the first-past-the-post election for the House of Representatives, which the Madhesi Morcha calls discriminatory since it discriminates the 51 percent population residing in the Tarai/Madhes region. The Morcha argued that the primary basis of determining the election constituency should be given to the population. Moreover, the Morcha also contends that the equal number of representatives (8 members from each province) to the Upper House, i.e., National Assembly under Article

53. Article 42(1) of the 2015 Constitution provides that, “Socially backward women, dalits, adibasi, adibasi-janajati, madhesis, tharus, minorities, disable persons, marginalized, Muslims, backward classes, gender and sexual minorities, youths, peasants, workers, oppressed or citizens from backward regions, and economically poor khas-arya shall have the right to participate in the state organs on the basis of principle of inclusion.” 54. Article 38(4) of the 2015 Constitution provides that, “Women shall have a right to participate in all organs of the state on the basis of the principle of proportional inclusion.” 55. See supra note. 56. Article 285(2) of the 2015 Constitution provides that, “All positions in the federal public services shall be fulfilled through competitive examinations on the basis of the principle of open and proportional inclusion in accordance with the federal law.” 57. Article 84(1) of the 2015 Constitution provides that, “The House of Representatives shall consist of 275 members as follows: (a) 165 members elected through the first-past-the-post election consisting of one member from each of the 165 constituencies formed based on geography and population.”

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86.2(a)58 undermines the population size of the provinces and is thus undemocratic. However, there are also countries they provide equal number of representatives to the Upper House irrespective of the size of the province/state and the size of the population. For example, under Article 1.3 of the US Constitution, the US Senate is composed of two Senators from each state, irrespective of the size of the population and the state. In fact, constituting the Upper House solely on the basis of population size would result in marginalizing the participation and representation of factors, such as geography, resources, culture, minority, and ethnicity. Nevertheless, the first amendment of the 2015 Constitution has given priority to population in ensuring representation.

With these developments, Nepal is expected to enter into a new phase democratic nation building. Nevertheless, the conspicuous flaws incorporated in the 2015 Constitution may impede the smooth process of democratic nation building. For example, the Preamble is aimed to create grounds for socialism and Article 4 defines the Nepalese state as moving towards socialism. Despite these and some other aberrations, on the balance of probabilities, the 2015 Constitution has opened space for all features of democratic nation building.

A constitution as a basic framework does not offer a detailed blueprint for nation building, which should come from laws enacted by the parliament, policies developed by the government, and the implementation of laws and policies. In general, the process of nation building can be accomplished 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 realm, i.e., from the centuries-long unitary system to a never-practiced federal system in its political history. Institutionalization of federalism under the existing challenges might not be as unpretentious and straightforward as commonly believed. Moreover, creating or establishing new institutions might be important for many reasons, but they themselves are not the end goals of nation building. Though, quite often nation building is deeply influenced by the institutional setup. Therefore, the role of new institutions in bringing people at the center of nation building is yet to be appreciated. Only securing a robust, fair, and competitive market, institutionalizing a civic state, guaranteeing universal social protection, and unflinchingly practicing constitutionalism, it can be achieved.

3.4 Post -National Stage o f Nation Bui lding

A post-national stage of nation building marks a phase where the absolute sovereignty becomes inappropriate under the growing constitutionalization of international rules, which demand 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 grounds of political convenience or from any other domestic perspective. Similarly, the post-national

58. Article 86.2(a) of the 2015 Constitution provides that, “There shall be 59 members on the National Assembly as follows: (a) 56 members elected from an electoral college comprising members of Provincial Assembly and chairpersons and vice-chairpersons of Village Councils and mayors and deputy mayors of Municipal Councils with different weights of votes for each, with 8 members from each province, including at least three women, one dalit, one from disable persons or minority.”

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constitutionalization as a system of global integration offers a range of opportunities as well as threats expanded from the local to the global level. Political instability, policy ambivalence, a systemic controversy and erosion, derogation in a civic state, and the intensification of divided society (all of which can be termed a fragmented state) inhibit the possibilities of catching up with the market and economic 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. This outcome can be avoided by ensuring that ideologies, elitist ethnic spirits, and political inefficiencies are successfully contained and brought under the purview of constitutionalism, the highest form of the rule of law. A solution to the challenges of post-national nation building should come from within the framework of constitutionalism, which seems rather uncertain under the perilous political atmosphere prevalent in Nepal. The uncanny political reading of the constitution in particular has unleashed extensive uncertainties.

In the course of nation building, the question of whether crimes should 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. Finally, the Supreme Court of Nepal had to intervene to stop criminal impunity provided by government through decisions for the withdrawal of criminal cases.59 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 the following three measures to be taken as the transitional justice measures that are important part of the process of nation building:

• 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.

59. See SC Quashes Government’s Decision to Withdraw Criminal Cases of 227 Individuals, The Himalayan, January 14, 2016, available at https://thehimalayantimes.com/nepal/sc-quashes-govts-decision-to-withdraw-criminal-cases-against-227-individuals, last visited on January 15, 2016.

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The Maoist government of Dr. Baburam Bhattarai had not only undermined the measures recommended by the OHCHR, but had also engaged in some caustic undertakings by breaking down the system. First, his government had 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 of journalist Dekendra Thapa is particularly noteworthy.60 The Maoist insurgents abducted Dekendra Thapa, a journalist, in August 2004. After being beaten senseless, the Maoists buried him alive.61 It is not only the Maoist government, but also the Maoist party and its supreme leader Parchanda, who labeled 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 have never ceased asking for justice, but have yet to receive it. Not a single government investigated the case and brought the accused before the court. Lastly, his parents (the Adhikaris) started a hunger strike, which resulted in the death of Mr. Adhikari that caught the attention of the National Human Rights Commission of Nepal, ordering the government to take action against the accused. Finally, the Supreme Court had to order the government to prosecute the accused.

Parchanda vociferously denounced the act of demanding justice as the ploy to obstruct the second CA elections.62 Their logic comes from the bizarre proposition that crime committed with a political purpose should not be prosecuted, which is reminiscent of the same old squabble of absolutism purporting that politics should be unrestrained by law. Second, despite widespread opposition from civil society, human rights organizations, and the legal community, the Maoist Party and its government promulgated a law, creating an ordinance on March 14, 2013, called an Ordinance on Investigation of Disappeared People, Truth and Reconciliation Commission, 2013. This law offered 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 in achieving the developmental aspirations and building the country as internationally competitive, administratively

60. 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.”

61. 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.”

62 . See Image Channel (August 14, 2013), available at <http://imagechannels.com/news/details/30360/Parchanda-comes-heavy-on-Krishna-Prasad-murder-episode-Says-event-being-used-as-pretext-to-foil-election>.

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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, 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 on this issue contends that the existing model of nation building in Nepal is elusive in terms of its nature and content.63 With the rise of ethnic movements, especially in the post-1990 period, the emerging ethnic perspectives critically project the Nepali nation building as an imposed and exclusionary process driven by the idea of Hinduization.64 In addition, a significant segment of society views nation building as a task yet to be accomplished. However, these views 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 starting the nation-building anew, with a right to self-determination at its core. Surprisingly, few seem content with the existing process of nation building, which substantially affected the constitution-making process in the past and is conceivably exerting additional pressure on the implementation of the constitution.

Overall, the 2015 Constitution has postulated a path of democratic nation building. However, uncertainties are still looming large, questioning how successfully the new institutions would operate. This issue is especially critical under the new political setting, where various normative ethnic and political ideologies are at sharp loggerheads and are showing no signs of receding from their earlier prominent position.

One of the leading scholars of Nepal, Harka Gurung, observed that nationalities being integrated through a political process help to institutionalize a ‘state’, which is distinct from a ‘nation.’ A nation “denotes to a community of race, language, and religion.”65 This observation reinforces an idea that a modern state cannot be founded on ethnic grounds. Rather, 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 the political process. Having said that, a modern state cannot ignore its responsibility of managing political equilibrium among different classes, ethnic groups, and segments of society through the mechanism of rights and duties.

In addition, 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

63. See P. Sharma, supra note. 64. See Harka Gurung and Mahendra Lawoti, supra note.

65. 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 133-148 (Harka Gurung ed., Kathmandu, 1979).

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domination, whereas the issue of socio-political equilibrium in a democratic society is often contested as it provides 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 post-2006 political landscape of Nepal, the question of political equilibrium has emerged as one of the highly contested issues, since it is essentially associated with the process and modality of nation building.

In sum, responsible political actors who believe in the constitution; solving contentious issues through a democratic process; increased political participation of women, minorities, and marginalized groups; politically uninfluenced and strong educational institutions; and policy and political decisions driven by reason, analysis, tolerance, and knowledge are the fundamental critical factors for creating conducive environment for equal citizens, robust market, universal social protection, and the rule of law, i.e., nation building.

4. Challenges and Prospects of Nation Building in Nepal

The prospect of nation building in Nepal is premised on the success of democracy in achieving the minimum conditions for equal citizens, robust market, universal social protection, and the rule of law (EMSR). Any derogation or aberration in the EMSR poses challenges to the democratic and post-constitutional nation-building process in Nepal.

Time and again, the power relationship has become one of the grimmest issues constantly affecting the nation-building process in Nepal. More specifically, the unjust power relationship in Nepal has always been the main source of political contestation and instability, which has formidably affected the nation building process. 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 arrangement 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 has been sought by the 2015 Constitution in the form of federal, democratic, republican, secular, and inclusive state. Among them, the ideas of federal and inclusive state have been widely demanded but highly contested, controversial, and politically vulnerable. More importantly, conceptually correct power relationship needs to be not only theoretically legitimized, but also practically and effectively implemented from the top to the bottom. Addressing this challenge successfully demands presence of actors who truly serve the four features of nation building.

‘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 Chart 6 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 rather naïve and fragile if power is gained

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and exercised beyond the precepts of rights and authority even under the new institutional setup. Therefore, the EMSR should stand at the core of the process of nation building. In other words, belongingness has no better source and explanation than the concept of EMSR.

Chart 6: The Dimension of Power

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 global social power relationships and belongingness. The crescendos of changes display many distinctive features. Among them, the data presented in Table 3 shows the unique progression in the idea of belongingness under three different modes of social-political organizations.

Table 3: Characteristics of Belongingness at Different Stages

Ethnic Group / Ethnicity Nation/Nationhood Nation-State/ State

1 • Singular ethnic identity • Multiple social identities • Civic identity

2 • The myth of distinct descent (Customary)

• Political relationship (Normative)

• Legal political relationship (Positive)

3 • Intra-community character • Inter-community character • Sovereignty

4 • Community allegiance • Modest political allegiance • Constitutional allegiance

5 Ethnic customary practices • Custom + political consciousness

• Constitutional supremacy

6 • Chieftainship centric relationship

• Charismatic political leadership

• Rational political leadership

7 • Leadership conflict • Political management of leadership conflict

• Constitutional management of leadership conflict

8 • • • Global constitutionalism

A number of features—including those of global constitutionalism, constitutional supremacy, constitutional allegiance, rational political leadership, sovereignty, legal-political relationships, and civic identity among others—are highly distinctive to be found

Power

Rights

Legitimate Positive Enforceable

Non-Institutional No Obedience Duty

Authority

Legitimate Positive Enforceable

Institutional

Command Binding

Obedience Accountable

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in a sovereign state (nation state/state). All these features tend to be the foundation of individual and collective identities and socio-politico-economic relationships. As the intrinsic part of legal-political relationships and global constitutionalism—freedom, liberty, and human rights—catalytically display the principal themes in uniting individuals, market, and the state.

Against this background, the concept of nation building under the modern democratic sovereign state is invariably expected to meet the following four demands:

1. Equal Citizens (Liberal Democracy, Autonomy, and Self-Determination) 2. Market 3. Social Protection 4. Rule of Law (Constitutionalism)

In the following sub-sections, these demands, challenges, and their solutions are briefly discussed.

4.1 Equal Cit izens

Unequal citizens cannot build a nation. Whether it is movements of ethnic communities for cultural rights, women’s movement for gender equality, the Tharus demands for autonomy, the Dalits movement for dignified space in society, or the Madhes agitation for rights, all are underpinned by the issue of equal citizens. In fact, nation building at its core is a process of creating conditions for equal citizens. This prompts the question of what the notion of equal citizens actually means. Should the citizens be equal in terms of resources, wealth, and power for the sake of nation building? If so, is such equality possible? Has it ever been achieved? No state or institution has ever been able to ensure 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.

(a) Autonomy: Cit izenship and Sel f -Determinat ion

In the context of Nepal, the question of autonomy and self-determination poses some deep theoretical and practical undercurrents, especially when juxtaposed with ethnic political interests. For example, in both 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 internal and external (intra and inter-group) conditions limiting the idea of the union of free and equal rational being, it inevitably constrains autonomy. Similarly, when a state denies individual autonomy in the name of political interests, it implicitly follows the footprints of authoritarianism in depriving of fundamental freedoms and human rights. Authoritarianism and primordialism thus complement each other. For example, the citizenship discourse in Nepal presents an interesting case. Even the 2015 Constitution has denied individual autonomy by rejecting the autonomous right of a mother or a father in transferring citizenship to their children. Article 11.2(b) of the 2015

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Constitution demands that both father and mother should be Nepali citizens to transfer citizenship to their children on the grounds of descent. In other words, a father or a mother cannot transfer citizenship autonomously. It is hard to understand why a constitution made for inclusive state 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. 66 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 posits that autonomy is characterized by three important features: universality, rationality as the end in itself, and the unity of the will of the people.67 Thus at the theoretical level, the current discourse on ethnic identity and restrictions on equal citizenship 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 odds 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. Despite these controversies, as a right of the people and of nations to gain independence and establish sovereignty, RSD has widely been recognized as part of jus cogens, a peremptory norm of 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.68 The ICJ Advisory Opinion in the Western Sahara case in 1975 provides two very important insights on the application of the RSD. First, RSD is recognized as a right of securing sovereignty by applying it in one of the three ways:69 emerging as an independent state,70 voluntary association with an

66. See JOHN RAWLS, A THEORY OF JUSTICE 450-456 (Harvard University Press, 2nd ed., 1999). 67. See IMMNUAL KANT, FUNDAMENTAL PRINCIPLES OF THE METAPHYSICS AND MORALS (Gutenberg Ebook, 2005/1785).

68. 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.icj-cij.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.”

69 . Western Sahara, 16 October 1975, ICJ, Advisory Opinion, para. 57, <http://www.icj-cij.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

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independent state,71 and integration with an independent state72 on the basis of the freely expressed will of the people. Second, international law does not prescribe an instruction as to what pattern of state structure should an independent sovereign state follow. 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 Nepal should follow.

This issue is best explicated via 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 principles.73 The lodestar of these earlier discussions seems to empower ethnic communities by ensuring their political control on the basis of positive discrimination for a fixed term.

However, the proposal also invited some serious queries. First, it was 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 deprived members of all other ethnic groups and communities of the right 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 aimed to secure the priority right to a locally powerful ethnic group, not to a minority ethnic group. Fourth, the CSR inclined to offer the protection of positive discrimination to the members of the local majority group. In fact, ideas such as those proposed by the CSR were already 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.74

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

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.”

70. An independent state might have different forms of governments: presidential, parliamentarian, monarchical, authoritarian, unitary, federal, and so on.

71. 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.

72. The example of integration can be taken from all federal structures that do not allow voluntary secession and all unitary structures across the globe.

73 . 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.

74. 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).

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ethnic representation are really required and to replace them progressively by representation based on the civic principle.”75

Further, the European Commission on Democracy defined the role of the government as that of promoting civic identity, instead of ethnic identity or ethnicity based politics. It specifically stated, “. . . 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.”76

Based 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 solve the ethnic problems and issues related to citizenship. On the contrary, the nation-building process in Nepal might be inhospitably 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 rights instruments that are based on the principle of equal citizens. Fourth, denying individual autonomy on the grounds of culture or political interests and depriving a mother or a father of the right to transfer citizenship to their children undermines the basic democratic values.

(b) Liberal Democracy and Human Rights

No state has ever made nor can any state 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 can be fully performed in a liberal democracy. In other words, liberal democracies excel in attaining these goals.77

The concept of equal citizens implies the idea of the same opportunities, rights, and status available to all in society. However, 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

75. Id. para. 44. 76. Id. para. 59.

77. See Joseph T. Siegle, Michael M. Weinstein, & Morton H. Halper, Why Democracies Excel, Foreign Affairs September/October, 2004.

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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 in Nepal, especially on the issue of citizenship, has been allowed to inopportunely continue in the democratic era as well. It is still guided by the patriarchal myth, which denies women equal status in imparting citizenship to their children. Among others, it also constitutionally denies the right of womb, including that of being a single mother. The discriminatory citizenship provisions are continuously articulated even in the 2015 Constitution. The provisions on citizenship deny the central idea of equal citizens and reinforce the discrimination and inequality via constitution. Essentially, three main arguments against the proposed language on citizenship can be put forth: 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.78

The centuries-long practices of the caste system have largely been legally addressed in the post-2006 polity; however, the social practice still exists. Ghai concedes that the Interim Constitution, 2007, had 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, those achievements would be mere ‘paper gains’ unless they were guaranteed by the future constitution.79 With the exception of few issues discussed above, the 2015 Constitution has institutionalized most of these achievements. Despite these conspicuous developments, dissatisfaction is still widespread and unrelenting. For example, 59 cross-party CA Members had put forth a 52-point note of dissent on the Draft Constitution, arguing for ethnic identity-based federalism, among other demands.80

Moreover, the education system in Nepal is openly, pathetically, and legitimately producing at least two distinct classes in society: a public school class with no hope and possibility in enjoying socio-economic opportunities and status (with a few exceptions), and a private school class. These discrepancies sharply escalated in the post-1990 era and have further aggravated the threshold of divided society, which poses a serious threat to the success of the nation-building process in Nepal.

Measuring an inclusive state in terms of cultural plurality only is an overly narrow approach to address the dissatisfactions. No doubt, cultural plurality is a necessary condition, but it should be compatible with 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

78. See Indu Tuladhar, Constitution Making Process in Nepal: Citizenship Discourse Impact on Women

and Children, UNICEF Nepal Working Paper WP/2015/001 (2014). 79. 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). 80. See THE KATHMANDU POST, July 15, 2015.

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process; equally acceptable to compete on the grounds of merit in achieving opportunities, including economic and employment opportunities, among others; and with more opportunities afforded 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 sum, 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 is an inclusive state attainable, nor can the illiberal democracy be transformed into a liberal democracy. Therefore, the mechanism of nation building should ensure the conditions of equal citizens 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 pitfalls should be conscientiously avoided, while giving due attention to the Rawalsian principles of justice. This approach ensures liberty, freedom, and human rights as the first principle, whereas managing inequality is the second principle required to improve the quality of life and secure the sense of belongingness as equal citizens.

At this juncture, it is apt to cite 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.”81

4.2 Socia l Protec t ion: Market and Equity

Democracy practiced in political jargon, additionally besieged by corrupt practices, aggressive political culture, and ideological domination often misinterprets the idea of equal citizens and staggers in accomplishing the process of nation building. A real social inclusion becomes the unforgiving need, when the political side of democracy is motivated for 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 market system to share the risks associated with distributing equity effectively. Thus, a social protection system should ensure that each citizen is guaranteed the minimum security with a legitimate risk sharing mechanism in place.

81. See Mark Malloch Brown, Foreword, in Human Development Report 2004: Cultural Liberty in Today’s

Diverse World (UNDP, 2004).

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Effective welfare policy measures (social protection) scale up the inclusiveness of a state. Perhaps, there is no better way to make a state inclusive than steadfastly adopting efficient social protection policy measures. This is the case 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 healthcare, 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 most reliable modalities for creating a fair and just society. Despite their illustrative importance, governments have often failed to underwrite effective welfare policies and measures in Nepal. However, the 2015 Constitution has incorporated a number of features of social protection, which marks a welcome positive development. Thus, realizing these rights in practice should be the priority of the nation-building process in the country.

The Nepalese discourse on the ‘inclusive state’ seems very persuasive in form. Yet, at the same time, all key stakeholders are egregiously choosing to overlook its core contents, the social protection components. Thus, there is a danger that the idea of ‘inclusive state’ may turn into a mere political demagoguery or pedantry without meaningful content. Despite these dangers, the power sharing between the center and provinces, as well as local bodies, offers immense opportunities to the state and political actors to understand and realize the significance of the universal social protection system in the country. Now, more time should be prudentially spent on devising an efficient modality of social protection, rather than wasting it on quarreling about the calculative delimitation of provinces.

The rudimentary social protection system in Nepal created by the existing laws and policies was and still is absolutely inadequate. It needs a complete transformation to turn Nepal into an inclusive state in the sincerest sense. This transformation, while not easy, is mandatory. Moreover, 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 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.

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 are able to create better equity conditions for the poor and weaker sections

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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 in achieving 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. 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 these important political crossroads, Nepal can learn to prevent these extremes from emerging 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 underscores 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.82

Welfare policies pursue several social and political objectives, including 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. Nonetheless, it is possible with comprehensive and interdisciplinary research and apolitical efforts. Partisan politics might be counterproductive in ensuring better policy goals. In addition, the social protection system overwrought by the selective and inefficient welfare policies, may summon many externalities. Supposing unemployment benefits as the example, in a country like Nepal, majority of the people are either unemployed, underpaid, or have no source of income, any policy designed emotionally may trigger huge burden to the public sector. 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 outright.

Thus, demands for social protection measures often bring 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. Thus, the Nepalese polity must urgently and firmly ensure 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 necessary social benefits and protections. In this regard, the 2015 Constitution of Nepal is expected to play a profoundly important role.

82. See CDRF, supra note.

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4.3 The Rule o f Law and Just i ce

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 . . .”83 Despite 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 could injustices be reduced or eradicated? 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) benefit 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.84

Chart 7: Normative and Positive Domains of Law

83. See ALF ROSS, ON LAW AND JUSTICE 269 (London, Stevens & Sons Ltd. 1958). 84 See KAUTILYA’S ARTHASHASTRA Kindly Location 3502 (R. Shamasastry trans., Spastic Cat Press,

Kindle 2009). Kautilya in 3rd Century B.C. 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 Paper 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.

DomainsofLaw

NonPrescrip2ve

Norma2ve

MoralorEthicalResoning

Prac2calReasoning

Poli2calReasoning

Prescrip2ve

Posi2ve

AuthorizedFacilitatedPermi@ed

DisabledLimited

Prohibited

Jus2ceRightthingtoDo

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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 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, 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 century,85 offers a practical idea of justice congenial to a liberal democracy. In his conception, fairness is justice or justice is fairness.86 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.”87 Today, the problem of nation building in Nepal is highly battered with the experience of subsuming 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 thus: 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 purports that such an idea would be detrimental to democracy; instead, he maintains that laws, including a constitution, could incorporate the idea of justice and implement it as a part of the rule of law.88

85. 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>.

86. 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.”

87. See JOHN RAWLS, A THEORY OF JUSTICE quoted on the back cover (Cambridge, MA, The Belknap Press of Harvard University Press, 1971).

88. 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

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In any society, in 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. This, 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 is moral but not legal. If these moral rights and duties are contravened, one cannot obtain remedy through enforceable formal structures or the court. Second, in the worst case, these normative standards might offend or defy law. In the latter case, 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. A closer examination of the first feature reveals an aberration. In a real, practical sense, eventually it either swings toward the second or the third feature. In both cases, it loses its self-regulating existence. Having said that, it may nonetheless 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 entire purpose of constitution making subsists in institutionalizing a civic state. No authority of morality and ethics can exist in 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, all attempts to conceive justice beyond the positive domain of law will be counterproductive. At this point, an important question can be raised: 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, becomes futile. It is understandable that normative standards produce biased, partisan, narrow, and disharmonious socio-political, 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 sum, the success of nation building profoundly depends on the success of institutionalizing the concept of rule of law or constitutionalism in its highest form.

are appropriate for sue as benchmarks of comparison.”

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5. Conclusion

In the post-2006 period, Nepal has entered into a new phase of nation building. Indeed, the new phase of democratic nation building in Nepal formally begins with the promulgation of the 2015 Constitution. However, the nation-building process is not simple and without challenges ahead. The akhanda sudurpaschim and Madhes agitation were the immediate challenges ensued on the promulgation of the 2015 Constitution.

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 undermine the expedition of the nation-building process. Similarly, 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 suppresses the sense of equal citizens and belongingness on the grounds of civic identity. Further, Nepal is transiting from a unitary structure to a federal structure, which is a new institutional arrangement in the political history of Nepal. If the new institutional structure is unable to stop the malaise produced by the power mania of the leaders, federalism might be fraught with political vicissitudes. On the whole, the success of nation building process in Nepal depends on the effectiveness of the state and institutions in creating a conductive 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 the nation building ahead.

This paper has examined nation building as the process culminating in the institutionalization of a liberal democracy. Since authoritarian regimes have failed 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 implied in the daily political discourses. Often, nation is misunderstood as interchangeable 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.

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. How robust the new federal institutions in this direction will be remains to be seen.

The ultimate outcome 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 in the present-day reality. Still, what is theoretically and practically possible should be achieved in earnest. This, in the context of Nepal, requires

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at least three specific actions or programs. First, it should eradicate the caste system not only theoretically but also from the mindset of the people. Theoretically, the 2015 Constitution, Interim Constitution, and other laws of Nepal have ended the caste system. However, it is still in the mindset of people and prevails 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 opportunities for people to be integrated into the social structure with the full sense of belongingness. This is where the earnest role and litmus test of political leadership is most evident, 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 toward a rule by law system or in the direction of the rule of law system. Under a rule by law system, laws are mere instruments that serve the political interests, which Nepal experienced throughout its 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 2015 Constitution and the federal structure will be profoundly influenced by what system we choose theoretically and how we implement it in practice. This choice will also determine the nature and scope of the participatory democracy in Nepal in cementing the sense of belongingness.

As suggested by John Rawls, two methodologies can be adopted to solve the problems of social and economic classes. The first is 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. The second approach is based on 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 skills, then in Rawalsian terms just institutions are necessary. By managing inequality, the level playing field can be expanded and the incapable, poor, and unskilled individuals can be lifted up with planned activities by 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 society89 that, in a true spirit, accomplishes the project of nation building.

Rawls further emphasizes that, if the people and institutions fail with a requisite desire to act upon these basic ideas of a well-ordered society, the results will be seriously defective. When individuals and groups pursue only personal interests, it is impossible for them to have a sense of justice. The best way to overcome this issue is to design arrangements ensuring that, whether from self- or group-interested motives, citizens are persuaded to 89. See A THEORY OF JUSTICE, supra note, at 398.

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act in ways that maximize the sum of wellbeing.90 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 sum, 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. In fact, a liberal democracy is the idea of equal citizens, robust market, universal social protection, and the rule of law.

90. Id., at 399.