Urgent Communication to the European Union Election Observation Mission concerning legal framework for Nepal’s Constituent Assembly Elections 2013 and its implementation

21 November 2013

European Union Election Observation Mission – Nepal 2013

Trade Tower, Ground floor, Thapathali, Ward No 11

Kathmandu – Nepal

Re: Urgent Communication concerning legal framework for Nepal’s Constituent Assembly Elections 2013 and its implementation 

Dear Sir or Madam:

This urgent communication is respectfully submitted for consideration of the European Union Election Observation Mission – Nepal 2013, under the mandate and objectives of the Mission, concerning the legal framework for Nepal’s Constituent Assembly Elections 2013 and its implementation in relation to representation of indigenous peoples in the Elections and forthcoming Constituent Assembly.

We hope that the information that follows will demonstrate failure of the Government of Nepal to adhere to its national and international legal obligations to ensure effective representation and participation of indigenous peoples and other marginalized groups in the Elections and following constitution-drafting process through the Constituent Assembly.

We urge for your kind attention to this communication and welcome request for further information and clarification as required.

Respectfully,

National Coalition Against Racial Discrimination (NCARD)[1] and Indigenous Peoples Rights Activists’ Network (IPRAN)[2]

Legal framework for Nepal’s Constituent Assembly Elections 2013 and its implementation in relation to representation of indigenous peoples in the forthcoming Constituent Assembly

The history of Nepal’s nation building is marked by a variety of challenges, among them social exclusion, which has prevented indigenous peoples and other marginalized groups to participate in and contribute to the country’s development processes.

Indigenous peoples, also known as indigenous nationalities (Adivasi Janajati in official language) in Nepal, are those ethnic groups or communities that “have their own mother tongue and traditional customs, distinct cultural identity, distinct social structure and written or oral history of their own”[3]. Fifty-nine ethnic groups officially listed as Indigenous Peoples make more than one third of Nepal’s population. However, the official list is contested and there are several groups that share in the history, characteristics and common problems of Indigenous Peoples recognized in Nepal and elsewhere but not on the list.[4]

Participation of indigenous peoples in Nepal’s constitution writing process is one of the major issues for promotion and protection of indigenous peoples’ rights within a developing constitutional order in Nepal.[5] In this context, on 12 February 2009 immediately after Constituent Assembly Elections 2008, indigenous people and their organizations filed a writ petition with Nepal’s Supreme Court alleging their exclusion from the constitutional reform process in contravention of constitutional norms and Nepal’s international treaty obligations.[6]

The writ petition formally invoked provisions of International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, United Nations Declaration on the Rights of Indigenous Peoples, and the International Convention on the Elimination of All Forms of Racial Discrimination, particularly article 5(c) which guarantees the right, without discrimination of any kind to participate in elections and to take part in government, and the conduct of public affairs, at any level. Further, UNDRIP provides for the right of indigenous peoples to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures as well as to maintain and develop their own indigenous decision-making institutions.

The discriminatory effect of sole reliance on the political party system exclusively controlled by Bahun/Chhetri elites for indigenous peoples to participate in constitution making process was compounded by the refusal to register political parties that claim to represent indigenous peoples on the basis of provision in Nepal’s Interim Constitution that prohibits a political institution that may jeopardize social harmony on the basis of race, ethnicity, religion or sect, the petition claimed.While the petition had requested an interim Court order at the same time that was ignored, the State in response to the petition had argued that the petitioners’ arguments should be dismissed for failure to state a colorable claim and indigenous people were presently adequately represented in the Constituent Assembly irrespective of the manner by which they were selected and the party discipline conditions applied.

The State’s submission to the Court was accompanied by a number of affidavits, including one by then Constituent Assembly Chairperson, explaining that it was not possible to establish a separate committee on indigenous people within the Constituent Assembly and moreover, in 2009, he had already rejected the establishment of a separate committee on indigenous peoples.

However, indigenous people had no say in choosing who would represent them in the Constituent Assembly or in its various committees, since these decisions were made by political parties without any reference to indigenous peoples’ right to participate through their own freely chosen representatives. In addition, the Government failed to propose an effective alternative that could otherwise ensure indigenous peoples’ participation in political life and the constitutional reform process.

The Court repeatedly postponed hearings up to 21 times on the case after a preliminary hearing on 1 March 2009 and submission by the Government the same month until 6 January 2013. Meanwhile, indigenous peoples and their organizations communicated the issue to the UN Special Rapporteur on the Rights of Indigenous Peoples and also submitted a complaint to the Committee on the Elimination of Racial Discrimination (CERD). In response, the Committee and Rapporteur since 2009 had repeatedly called for establishment of special mechanism to ensure effective participation of indigenous peoples and obtain their free, prior and informed consent in constitution making process.[7]

Directive Order of the Supreme Court on representation of indigenous peoples in Constituent Assembly

After the Court heard arguments from both sides of the case on 6 January 2013, final decision of the Court on the case was again deferred for 6 times until 21 April 2013. By then, the Constituent Assembly had already been dissolved on 28 May 2012 after completion of even its extended term. Accordingly, the Court decision states that

“While the petition concerning representation [of indigenous nationalities] in the Constituent Assembly formed as per Interim Constitution of Nepal, 2007 following Constituent Assembly elections in 2008 was sub-judice, the Constituent Assembly was dissolved on 28 May 2012 after completion of its term. Hence, the Supreme Court concludes that the writ has been purposeless and is annulled, as conditions to issue a writ as per the demands in the petition do not exist.

However, the issues raised in the petition regarding representation [of indigenous nationalities] in Constituent Assembly seem contextual even in relationship to forthcoming Constituent Assembly elections. Thus, regarding how the representation of socio-economically backward and marginalized classes or communities including indigenous/nationalities can be successful and effective, [the Court orders the defendants] to study and investigate international laws including International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social and Cultural Rights, 1966, International Labour Organization Convention No. 169 as well as set norms used by civilized nations about and through discussions and consultations with various affected groups about what arrangements are appropriate for successful and effective representation of marginalized and backward classes including indigenous nationalities as per the principle and aspirations of the Constitution in the context of future Constituent Assembly. For this purpose, the Court decides to issue a directive order in the name of the defendants to take necessary initiatives for required amendments or revisions in the laws including Election to the Members of Constituent Assembly Act, 2007, Regulation Relating to Election of the Members of Constituent Assembly, 2007 and Constituent Assembly Regulation, 2007.”[8]

Following the directive order of the Court, indigenous peoples and their organizations have called on the Government of Nepal and its concerned agencies as well as the political parties to amend the required laws as per the order, among other demands in relation to Nepal’s Constituent Assembly 2013.[9]Those demands have gone completely unheard.

Recommendations

This communication is submitted to the European Union Election Observation Mission – Nepal 2013, under the mandate and objectives of the Mission, with a view of bringing to the attention of the Mission the failure of the Government of Nepal, as described above, to adhere to its national and international legal obligations to ensure effective representation and participation of indigenous peoples and other marginalized groups in the Elections and following constitution-drafting process through the Constituent Assembly.

Thus, we request the Mission to immediately give consideration to this communication, and the information therein, in its observation of the electoral processes and reflect the inadequacy of the Government to fulfill its obligations for formulating necessary legal framework and ensuring its implementation for democratic elections. Further, we recommend the Mission to reflect the issue of the communication in its comprehensive Final Report, including appropriate technical recommendations for future elections.


[1] NCARD is a network alliance of various organizations working against all forms of racial discrimination in Nepal formed in follow-up to 2001 UN World Conference against Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South Africa. The alliance members are organizations and networks of indigenous peoples, Dalits, Madhesis and other groups facing discrimination based on descent, national or ethnic origin. It has been granted Special Consultative Status with the United Nations Economic and Social Council (ECOSOC) in 2012. www.ncard.org.np | www.facebook.com/NCARD.Nepal
[2] IPRAN is a network of volunteer indigenous peoples’ human rights activists working to assist indigenous communities in Nepal to assert their rights and protect their lands and identities. It supports the communities in their struggles by educating them about their rights, building their advocacy skills, facilitating their lobbying at national and international levels and disseminating their information through different media. www.nepalindigenousissues.blogspot.comwww.indigenousissuesinasia.wordpress.com
[3] National Foundation for Development of Indigenous Nationalities (NFDIN) Act, 2002
[4] Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, James Anaya, Addendum – REPORT ON THE SITUATION OF INDIGENOUS PEOPLES IN NEPAL, 20 July 2009, A/HRC/12/34/Add.3, Para 15
[5] Ibid. Para 52-58
[6] Read the full text of the writ petition in Nepal at http://www.lahurnip.org/userfiles/dfile_29.doc
[7] Nepal: Alleged exclusion of indigenous peoples’ freely chosen representatives from the process of developing Nepal’s new constitution http://unsr.jamesanaya.org/cases-2010/22-nepal-alleged-exclusion-of-indigenous-peoples-freely-chosen-representatives-from-the-process-of-developing-nepals-new-constitution; Also see CERD letters to the Permanent Mission of the Federal Democratic Republic of Nepal at http://www.lahurnip.org/userfiles/dfile_28.pdf andhttp://www.lahurnip.org/userfiles/dfile_27.pdf and latest letter from the Special Rapporteur to Nepal athttp://lahurnip.org/details.php?id=130
[8] Read the full text of the Court decision in Nepali at http://lahurnip.org/details.php?id=136
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