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Ethnicity and Democratic Governance

Diversity in practice: the challenges of constitution-making and advising

(July 2009) Full interview with Yash Ghai 

Q:As head of the Constitutional Advisory support unit in Nepal and an expert in constitutional law, I understand that you lead a team that provides advice and expert technical support to politicians and other key decision makers, as well as educating professionals and other members of the public. What areas of expertise do other team members of the advisory support unit offer, and how has your role differed from other members, in terms of responsibilities?
Until now we have deliberately kept the Unit small as we wanted to work with and through Nepali and foreign experts and with Nepali civil society organizations. We have operated with a political scientist, three lawyers, a sociologist, and two full time and several part time translators. Now that the Constituent Assembly has begun its work, we have recruited three other (Nepali lawyers), more translators, and two senior international experts. We are also establishing a rooster of experts who would be available to advise members of the Constituent Assembly as and when required. We hope to invite them to Nepal for a week’s induction so they become familiar (or more familiar) with Nepali constitutional, political and social issues and meet some key persons from political parties and civil society.


Q: Team members have mentioned that you may be wrapping up your activities in Nepal soon. Will there be a final summary report or public announcements, and when would you expect to issue these?

No, we are not intending to wrap up our activities (although I am stepping down as head of the Unit so I can concentrate on advisory work). On the contrary, they are being intensified. We have published several reports on our activities and on substantive issues facing the Constituent Assembly. I would recommend to your readers to review our website which contains these reports and much other information on Nepal and comparative constitution making experience.

Q: The current political situation in Nepal seems to be a direct result of the ten-year civil conflict between the Nepalese Maoists and the previously-reigning government of King Gyanendra. Yet Nepal is also an incredibly ethnically diverse nation. To what extent has such diversity played a role in (1) the Maoist-government disputes and (2) challenges in writing a new constitution for Nepal?

Diversity did not originally play a key role in the Maoist insurgency, although their protests did reflect concern with social justice issues. But traditional Maoist class war politics had little resonances with the people, and Maoists realized that they would have greater success if they appealed directly to what are called “marginalized communities”—dalits (“untouchables”), women, and indigenous communities (“janajatis”). These groups have lobbied for constitutional recognition for a long time but the Maoist insurgency gave them a boost. The issues of diversity (Nepal is a multi-religious, multi-lingual, multi-ethnic state, with significant regional differences) are now very much on the agenda. The constitution making process is not merely about state building—it is essentially about establishing a new identity for Nepal, with due acknowledgement of more particular identities.

Q: A major obstacle in developing the new Nepalese constitution is ensuring that the process of constitution-making is participatory. You have written that in Nepal, “there are three very specific reasons for participation…: a new identity as a Nepali, inclusive democracy, and social justice.” To this end, UNDP has established a “Participation in Peace and Constitution-Building Project” in Nepal. How successful have the initiatives of this project been in ensuring that the constitution-building project is inclusive and participatory? Which of these programs have been particularly successful?

Nepal does not have a tradition of political participation. Political parties which been in the forefront of the struggle for “democracy” are themselves not democratic, and are highly elitist—most of their leaders are drawn from high caste communities. However, now there are considerable pressures to open up the political process to groups hitherto marginalized—with some success. The Constituent Assembly is representative (though not fully) of Nepal’s diversity, and many civil society organizations from these communities and more generally, have lobbied hard for provisions that should go into the constitution which would enhance their role in public life. Our own work has focused largely on and with these communities, and will continue throughout the deliberations of the Constituent Assembly.

Q: Are indigenous communities and other excluded groups adequately informed and involved in the constitution-building process? If not, what are the persistent obstacles that UNDP must overcome?

They are becoming increasingly so informed. They have contributed many ideas and proposals for the constitution, including self-government and autonomy, greater official use of minority languages, and the declaration of Nepal as a secular state, with equal rights of all religions.

Q: You have written that “The fundamental task of constitution making is to re-define the identity of Nepalis…The role of the process of constitution making must be to search for a balance between national and particularistic identities.” However, it seems that in multi-ethnic societies, the potential exists for certain identities to be favoured in the ‘national identity,’ and for certain identities to be marginalized in the negotiation of identities. To what extent is Nepal successfully balancing the preservation of distinct identities while crafting a national identity? Are any other initiatives (institutions, policies) required, in addition to a constitution, to ensure its identity-building role is realized?

I think Nepal is well on the way to a state and society which will recognize the identities and aspirations of different ethnic and social groups. An Interim Constitution which was adopted in January 2007 (which is likely to have considerable influence on the final constitution) proclaims Nepal as a secular state, authorizes the use of local languages in administration and primary education, adopts progammes of affirmative action for those historically disadvantaged, commits itself to the principle of ethnic proportionality in state services, and outlaws practices of untouchability and forced labour.

Q: Richard Bennett of the UN Office of the High Commissioner for Human Rights has stated that a key responsibility of the newly-elected Constituent Assembly is to ensure that human rights, particularly freedom of expression and access to information on the constitution process, are protected. Given that your other role is as UN Special Representative for Human Rights in Cambodia, how has your concern for human rights influenced your role as head of the Constitution advisory support unit? Do you foresee the same potential for human rights violations in Nepal as has been the case in Cambodia?

The concern with the promotion of human rights has been central to our Unit. We had a very interesting conference on “Human Rights, Diversity and Social Justice” where among other issues we examined the balance between individual and community rights, and how the framework of rights could balance the interests of different communities within an overreaching sense of common citizenship (please see our website for the report of the conference). Human rights provisions occupy an important place in the Interim Constitution, and undoubtedly will do so in the new constitution. We have helped to set up a consortium of groups working on human rights to ensure a good bill of rights. We work closely with Richard Bennett and his colleagues, as well as the National Human Rights Commission. Civil society is prepared to speak up for human rights.

For these reasons I do not think that Nepal will go the way of Cambodia. But optimism must be tempered with caution. The last 15 years have seen a cruel civil war with massive violations of rights and the destruction of human rights. Maoists have continued with a fair measure of coercion and abuse of rights. The government has shown little interest in protecting people’s rights, and perhaps has little ability to do so. There is wide impunity for violations of fundamental rights. Little progress has been made on truth and transitional justice issues; most political parties seem to favour wide scale immunities, even for crimes that have a continuing effect (e.g., illegal appropriations of land and other property of already oppressed groups). The government must make a very concerted effort to protect people’s rights and promote the ideology and practice of the Rule of Law.

Questions regarding academics in advisory roles

Q: The current political situation in Nepal seems to be a direct result of the ten-year civil conflict between the Nepalese Maoists and the previously reigning government of King Gyanendra, but Nepal is also an incredibly ethnically diverse nation. To what extent has such diversity played a role in (1) the Maoist-government disputes and (2) challenges in writing the new constitution for Nepal?

I have dealt with this question in my previous answers. I should clarify that the conflict was not merely that between the King and the Maoists. There were major differences between parties which claimed to be democratic and the Maoists. Nepal is going through many transitions, not merely the ethnic—from monarchy to republic, from centralized state to federalism, from a Hindu state to secularism, and perhaps in the long run most fundamental, from some sort of feudalism-democracy to socialism, perhaps even a Leninist type regime.

Q: Your involvement in advising governments and other parties on constitutional design and human rights issues reflects your early realisation that “…law could not be compartmentalised, examined in isolation from other social forces [taken from your EDG personal research statement].” Can you say more about this belief with respect to the work that you are now doing in Nepal?

It is easy to see in Nepal that the law has for long reflected the hierarchies and inequalities in society. In the middle of the nineteenth century the Rana regime codified caste and ethnic distinctions, on which an entire legal system was built. Many of the most offensive provisions were abolished in the second half of the last century. But society continues to be dominated by the older distinctions, producing much injustice, arrogance on one side and servility on the other. Law reform is increasingly been perceived as the cure for these ills, and it is in this context that the new constitution will be critical. But we also know that the law cannot achieve much when so much of the oppression takes places in the interstices of society (compare the relatively limited progress of dalits in India after 60 years of constitutional protection, including special legislative representation and affirmative action). Social reform must be given high priority; however, this may not be the priority of political parties.

You also said in your EDG personal research statement that:                        

"My (lawyer’s) interest in ethnicity has compelled me to reflect on   the divisibility of sovereignty, forms of representation, the nature of human and community rights, the diverse forms of accommodation, the complexity of decision-making explicit in so many recent settlements, and indeed the very nature of ethnicity. I believe too much policy is made by people who only have a dim (and fallacious) understanding of the dynamics of what are labeled ethnic issues/conflict—and with it all a sense of despair."

Q: Has your work in Nepal been countering this kind of policy-making? If so, to what extent and how?

I hope my answers above have made clear how Nepalis (and our Unit) are trying to deal with this. The break up of the centralized nature of the state has posed questions about ‘sovereignty”, the inclusion of marginalized communities has been achieved through some forms of power sharing, many views of the nature and value of ethnicity are being expressed, and so on.

Q: Throughout your career, you have been involved in ‘practical’ applications of your research, advising in the negotiating and crafting of constitutions in approximately 15 countries. What are the major challenges facing academics working in a consultative/advisory capacity?

The challenges are implicit in the nature of constitution making process itself—which is highly political. Politicians claim a major responsibility for the making of the constitution. This can pose a problem for an advisor who believes in extensive public participation (about which, incidentally I am not starry-eyed; there can indeed be problems with participation). Secondly, politicians have a narrow conception of a constitution: largely about the access to state power, while many groups and communities are more interested in the purposes for which power should be exercised, and in accountability. Everywhere there is massive loss of trust in politicians, which affects the constitution making process. Thirdly, constitution making is, at least in theory and emotions, an intensely national (even nationalistic) process and there is consequently an ambivalence about the role of the foreign adviser (which I have been most for most of my life, except when I chaired the Kenya constitution making process). There are of course many foreign influences (especially at high and clandestine diplomatic levels—Indian and the US ambassadors are playing a crucial role)—and sometimes my role has been to try to reduce these influences. Another challenge is to resist the belief that the adviser’s country has all the solutions!

Q: For graduate students involved in issues related to the Ethnicity and Democratic Governance project, what advice would you give for those interested in eventually working in advisory roles?

Follow some ongoing constitution making processes (of which there are several). Develop technical capacity, including an understanding of the dynamics of ethnicity, the role of human rights as mediating between different and competing interests, and something about the process and art of negotiations. Seek relevant internships—there are several international and national institutions (on conflicts, human rights, transitional justice, gender and others) which have internship programmes. And develop understanding of different cultures.

Q: Do you think that students are given sufficient opportunities to see the ‘real life’ instances of what they are studying (ethnic conflict, post-conflict rebuilding)? If not, do you believe students ought to take more initiative in complementing their academic work with practical knowledge?

I do not think that they are. It is not always easy to combine studies with involvement in practical projects. Perhaps graduate programmes could build in some internships as part of studies. We have had a few interns in Nepal and I believe they have found their experience with us interesting, and some said, even inspiring. It is important to ensure that local students also have opportunities to get practical experience. Unfortunately, it is the wealthy western universities and foundations which can afford to sponsor internships programmes, restricted largely to students from wealthy countries—this certainly has been my experience. It would a great pity if internships merely reinforced the hegemony of the west!

Perhaps I could end with a suggestion for EDG project—addressed as much to Bruce Berman as to you. Let us organize a two week course for our student associates on ethnicity and the challenge of constitution making. I would be more than happy to take major responsibility for it—provided we also invited some students from the “third world”.

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