'Jatiya Agradhikar' :Civil and political rights test
Nepal is writing a new federal democratic constitution through recourse to participatory approach. The participatory methodology of constitution writing is pursued to lend an added legitimacy and acceptability to the new constitution. But the writing process is not going smooth. The drawing up of the new constitution has hit impasses time and again. The stalemate is created especially due to waning and waxing differences among the political parties over the capturing or allocation
of state power . This will
ultimately be translated into who should rule the country.
In this context, the proposal to confer political prerogative (Agradhikar) upon certain ethnic or national groups is under critical scrutiny. The CA members representing Nepali Congress and CPN (UML) have come down heavily upon the proposal accusing that it seeks to malign the spirit of accommodation, harmony and tolerance nourishing the social fabric of the country. Others have argued that it is against the fundamental premise of democracy and republic for which Nepali people struggled for long. Underneath the sprit of the republic state (Ganatantra) lies the supremacy of public citizen as they have been bestowed with the right and entitlement to get elected to the position of the head of the state, or the government regardless the tiers. The ascription of political privilege or preferential treatment to any class or community of people except for some substantive affirmative actions based on socio-economic grounds is illogical. It seeks to politically disenfranchise some groups of people. It makes a mockery of the liberal democratic values. Needless to reiterate, democracy (Loktantra) is accepted as a congenial political ideology because it holds out the prospects to assure an equal and unfettered institutional space for all citizens to take part in all type of political functions using peaceful and nonviolent means.
Moreover, democracy presupposes the meaningful participation of citizens in political and civic functions on an equal and non-discriminative footing. There is no gainsaying the fact that the civil and political rights form the inalienable fundamental entitlements of the citizens in a democratic society. These rights are incorporated and sanctified both in the national and international human rights instruments. But, contrary to these democratic postulations, the CA subcommittee report on state restructuring seeks to abridge and mutilate the paramount civil and political right of the Nepali citizens by conferring political prerogative to some groups while denying the same to other groups which no allegedly regressive constitutions of the past had dared to commit. Such a preferential treatment may be considered necessary where there are sufficient reasons- evidenced by gross political injustice and grave violation of political rights committed at the behest of external colonial powers-to restore the lost rights through
some measures pertaining to reverse discrimination. In Nepal no such situation exists.
To confer political prerogative to some groups creates political disadvantage or insubordination to others. It undermines the basics of democratic choices amounting to the derogation of civil and political rights of citizens.
Mention must, in this context, be made of the International Covenant on Civil and Political Rights adopted by the UN on July 12, 1996 and ratified by almost all member states of the UN including Nepal decades ago. This covenant sets the standards for civil and political rights of citizens to which Nepal is obliged to respect and fulfil Article 25 of the covenant recognizes and protects the right of every citizen to take part in conduct of public affairs. It includes the right to vote and to be elected and the right to have access to public service without any discrimination. The covenant requires the states to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the democratic civil and political rights on an equal basis.
This is the core value of democratic government based on the consent of the people. The conduct of public affairs is a broader concept in a democratic society. It relates to the exercise of political and civil rights. It forbids discrimination or preferential treatment (Agradhikar) to one or the other group in particular in the exercise of the democratic rights including to right to vote and get elected to public position. This provision is also related to the right to self-determination of citizens. Right of self-determination of citizens means the right to freely determine political choice and to enjoy the right to choose the form of their government. No distinctions should therefore be made between citizens in the enjoyment of the civil and political rights on the grounds of race, colour,
sex, language, religion,
political or other opinion, national or social origin, property, birth or other status. At a time when the Nepalese people are clamoring for democratic and life enhancing rights in the new constitution, the indulgence in such issues as “Jatiya Agradhikar” shall diminish democracy and destroy the basis on which humane values of equality and justice rest.