Righting wrongs
Mahendra Bantawa ‘Masanta’
Nepal is a country diverse in terms of ethnicity, language, culture, geography and origin. Nepal is a pluralistic nation on these grounds; and based on plurality, the people are united in some group on the one hand, and on the other, they remain as separate groups by giving each group a unique identity. The Interim Constitution has recognised Nepal’s diversity. This country is the common abode of various castes and ethnicities. Out of the population of 23,151,423 (Census 2001), 37.10 percent belong to indigenous peoples/nationalities. Similarly, out of the total female population, 37 percent are from indigenous groups. To give legal recognition to their unique identity, the state has promulgated the National Foundation Act 2001 for Development of Indigenous Nationalities.
Who are INPs?
The term indigenous peoples/nationalities (INPs) has not been clearly defined by any international law or norms, but is being dictated by the criteria falling under the communities of indigenous peoples/nationalities. Indigenous peoples/nationalities are people having their own lifestyle based on their own traditional habitat, culture, language, faith, belief, institutions, customs and traditional laws and collectivism. It denotes those communities that have been continuously living on their land before the settlement of colonies or encroachment of those lands historically. They consider themselves different from other sectors/sections of society. At present, they are without a decisive role in society. It is assumed that they are committed to developing and conserving their ancestral land, identity based on the community having continuous identity in that area and transferring these things to their future generations.According to ILO Convention No. 169, indigenous peoples/nationalities are the “peoples in independent who are regarded as indigenous on account of their descent from the populations which inhabited the country or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions”.In the context of Nepal, Article 2 of the National Foundation for Development of Indigenous Nationalities has defined indigenous peoples/nationalities as those communities that have their distinct mother tongues and traditional customs, distinct cultural identity, distinct social structure, and written or unwritten history; and based on these criteria, has notified 59 indigenous peoples/nationalities.
Legal provisions before 1990
Coded laws were initiated in Nepal with the Muluki Ain (Country Code) in 1854. The Muluki Ain was transcribed by compiling scattered policies, rules and laws run according to the then prevalent conditions, practices and customs and norms. In the course of coding the Muluki Ain, casteism was institutionalised by legalising the Hindu caste system. It gave legal recognition to social and caste divisions. The act legally divided the various castes and communities of Nepal into high and low, pure (from whom water could be accepted for drinking) and impure (from whom water could not be accepted for drinking), caste and casteless. As per the Muluki Ain, Brahmins could be freed, whereas indigenous peoples and Dalit castes could be given the maximum punishment for committing the same crime. These factors marginalised the indigenous peoples, women and Dalits in society. They were subjected to exclusion and discriminationAfter 1961, Nepal was declared a Hindu state, and the policy of “one religion, one race, one dress” was adopted. This further institutionalised past oppression. The period of the Panchayat regime could be considered as the period when the violation of human rights and fundamental freedoms of indigenous peoples was at its height. Even during the Panchayat period, the concept that development of a limited number of indigenous peoples should take place was introduced. Efforts were made by the state to introduce target group programmes such as the Praja Development Programme for the development and uplift of the Chepangs. Particularly towards the end of the Panchayat period, it was seen that indigenous peoples started raising their organised voices on the issue of their rights.
Efforts made since 1990
The 1990 constitution recognised the indigenous peoples as an entity. That constitution had made special provisions for cultural and social rights and development of indigenous peoples. As an example, the government had included 59 indigenous nationalities in the schedule by promulgating the National Foundation for Uplift of Indigenous Peoples/Nationalities Act 2001 in order to uplift and develop indigenous peoples and accord them legal recognition. The foundation has been conducting various programmes for the development and protection of the languages, scripts, literature, history, arts and cultures of indigenous peoples.
Efforts made since 2005/06
The nation is currently drafting a new constitution. People’s Movement II has granted it the mandate to restructure the state by involving excluded communities, including indigenous peoples, in a proportionate manner in every structure of the state. Respecting the popular mandate, the Interim Constitution 2006 has guaranteed proportional representation of all communities, including indigenous peoples. In the Constituent Assembly, more than one-third of the members belong to indigenous nationalities. Furthermore, the nation has been declared secular in order to accord dignity and equal treatment to all the citizens.In this context, on Aug. 22, 2007, the Legislative-Parliament duly ratified ILO Convention No. 169 for guaranteeing human rights and fundamental liberties to indigenous peoples. After the government notified it about the ratification as per the provisions of the convention, the said subject was duly registered with the ILO Office, Geneva, on Sept. 14, 2008. One year after the registration of the notice of ratification, Convention No. 169 is being enforced as law in Nepal.
ILO Convention No. 169
The convention has made a provision for forging partnerships and collaborations between indigenous peoples, the government and other stakeholders while implementing programmes that concern and affect indigenous peoples. This would help in the establishment of sustainable development and peace besides ensuring social justice. The convention also guarantees individuals the controlling and practising of the rights (inviolable) related to their lifestyle, identity (language, faith, beliefs, customs, traditions, customary laws related to land and natural resources) as well as the right to work for development as per the pre-determined prioritisation without any external interference, besides guaranteeing the right of living with a distinct identity. Besides guaranteeing indigenous peoples human rights, fundamental freedoms, personal and collective rights, the convention also protects their right to participate in the formulation, implementation and evaluation of the policies of the state without any encumbrances. Similarly, it directs the state to ensure the rights of indigenous peoples by initiating the process and setting up mechanisms for establishing the right to access to and control of the services, facilities and fruits of development as well as any other group. The convention aims to establish partnership, collaboration and understanding between the state and the indigenous peoples. This promotes and ensures sustainable development through discussion and consultation on the conflicts that could possibly arise from the negative impacts of development activities in the indigenous peoples’ sector.
Government’s obligations
After becoming a party to the convention, the government, governmental agencies and all organisations/institutions working on issues of the indigenous nationalities have to abide by the convention. The convention shall be observed with the participation, representation, consultation and agreement of the indigenous nationalities. While implementing the convention, according to Articles 3 and 35, other international laws related to it to which Nepal is a party, particularly the Civil and Political Rights Convention 1966, the Convention on the Economic, Social and Cultural Rights 1966, the Convention on the Elimination of All Forms of Discrimination 1969 and its Monitoring Committee’s Recommendation No. 23, the Convention on Biodiversity 1992 and the United Nations Declaration on the Rights of Indigenous Nationalities 2007, shall also be kept in mind.
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