Indigenous People’s Rights and New Constitutions Issues and Recommendations Presented to the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples 25th November 2008 Dr. Mukta S. Lama Tamang

Presentation structure Background and context Major issues and concerns of the indigenous peoples Representation in CA The process of constitution making The content of new constitution

Background and context Continued IP struggles over last two decades and Peoples’ Movement 2006 culminated in Interim Constitution Interim Constitution promised state restructuring to end caste/ethnicity, linguistic and culture based discrimination. IPOs further agitation resulted in NEFIN- Government 20 point agreement. Constituent Assembly election 2008 elected 601 members out of which 218 identify themselves as indigenous

Present Situation CA is working towards drafting new constitution and has one and half year time The CA has just passed the Assembly Regulation that delineated procedure including committees and party whip, IP movement is struggling to find ways to raise their voice in new constitution.

IP’s Hope and Fear The success of IP movements in terms of influencing major political forces for significant IP representation provide them with considerable hope and sense of achievement. Nevertheless, reluctance IPs perceive on the part of the major political parties in terms of genuinely attending to their concerns for change make them skeptical to the CA process and pessimistic towards new constitution in making.

Three major concerns of IPs on CA The first is on the nature of representation of the IPs in the CA. The second, on the proposed and evolving process of the CA, and lastly on the actual content of the new constitution particularly in terms of designing federal structure and ensuring substantive equality and IP rights.

Nature of Representation IPs were denied full “Proportional Representation” electoral system for ensuring representation of the IPs in proportionate to their population. Although current CA has 218 members from indigenous groups, they represent their political party and their party discipline does allow them to use their free will as sovereign indigenous persons. Government has not fully implemented NEFIN- Government Agreement to create mechanism to ensure representation of IP groups with small population. Current IP CA elected members do not represent and not accountable to IP groups and their traditional organizations.

The CA Process CA rule for passing the agenda by vote of two third of members in the meeting where at least two third members are present makes the IP agenda virtually impossible to get through. Even tabling of agenda is controlled by political parties. Indigenous CA members are not been able to form their caucus to advocate IP concerns. Recently passed CA Rules have delineated 14 Committees (10 thematic committees, 3 processual committees and 1 constitutional drafting committee), in which IP representation is not yet clear.

The CA Process The CA rules does not include Committee on “Indigenous Peoples Rights” as demanded by IP movements. In order to ensure “free and prior informed consent” of the indigenous peoples in constitution making, committees on “Public Opinion Collection and Coordination” and “Citizen Linkage” must properly consult with the IP organizations.

The Content of New Constitution Recognition of the past injustice against the indigenous peoples in Nepal in the preamble. Constitutional guarantee to remedying past injustice and attaining equality. –Affirmative action/Reservation –Active pursuit of substantive equality –Active elimination of direct and indirect discrimination

Content of New Constitution Federal structure to ensure –IP Self-rule or the end of internal colonialism –Reinstate their rights over their ancestral land and territories –Cultural preservation and identity –Use of their languages in governance, court and education. –Right to self-development with identity

Content of New Constitution Federal system is also important for –Political structure for accommodating diversity –Brings government and development closer to the people –Reduces central hegemony –Achieve durable peace Respect IP Right to Self-determination