Report for Workshop on Identifying Legal and Policy Gaps for Nepal s Marginalized Groups

Transcription

1 Report for Workshop on Identifying Legal and Policy Gaps for Nepal s Marginalized Groups Organized by: National Coalition Against Racial Discrimination (NCARD) Supported by: SANKALPA Women s Alliance for Peace, Justice and Democracy Date November 2012 Venue Agriculture Development Bank Training Center, Bode, Bhaktapur Under a project of SANKALPA Women s Alliance, NCARD as a member organization of the alliance conducted above workshop to meet the following specific objectives: - To identify and analyze gaps in national laws and policies relating to the issues of Nepal s marginalized groups and NCARD s target groups indigenous peoples, Madhesis, Dalits, Muslims and other ethnic, religious and linguistic minorities vis-à-vis relevant international human rights laws and standards (with particular focus on women from those groups) - To recommend changes to incorporate in the national laws and policies and strategies for strategies for advocacy and other measures for the action NCARD organized the workshop as part of SANKALPA s plan to organize, through its member organization, eleven such thematic/regional workshops for different marginalize groups of Nepal so as to consolidate and compile the reports from those workshops in a final report. The final report is to be presented in a national workshop participated by representatives of all the marginalized groups and support future advocacy efforts of SANKALPA on their issues in coordination with its member organizations. PREPARATIONS TO THE WORKSHOP NCARD called on its 12 alliance member organizations and 3 partner organizations to identify or nominate two participants from each organization for the workshop within the following criteria: S/he has been working for a long time in at community level. S/he has good understanding of current national policies and laws and can relate their issues to the national policies and laws. S/he has strong knowledge of advocacy and lobbying. S/he can commit full time throughout the workshop. S/he can contribute the knowledge acquired from the workshop at the community level. Further, the organizations were strongly requested to nominate one male and one female participant and from different regions of their work area to maintain gender and regional balance. 27 participants, 14 females and 13 males, from different geographical regions of Nepal and involved in legal or policy research and advocacies or working in community levels representing those 15 organizations attended the workshop. The

2 participants registration list is attached herewith along with their detailed profiles in separate excel document. Each participant was ed agenda and administrative and logistical information of the workshop beforehand, along with the papers on legal and policy gaps for Nepal s indigenous, Dalit, Madhesi and Muslim communities that were to be discussed during the workshop. They were also briefed about the workshop on telephone. PROCEEDINGS OF THE WORKSHOP The workshop began with welcome remarks from NCARD Chairperson Dr. Sumitra M. Gurung who also clarified about the objectives of and planned follow-up activities to the workshop from NCARD and/or SANKALPA. SANKALPA s Executive Director Chanda Rai explained about SANKALPA, its ongoing activities under a 5-year strategic plan and the broader project outcome under which the workshop was being organized. Ambika Gajmer, a prominent Dalit woman activist, facilitated the proceedings of the 2 and half-day workshop by providing summaries of technical and expert presentations, encouraging inquiries from and discussions among the participants and resource persons and assisting in daily group works during the workshop. IDENTIFYING LEGAL AND POLICY GAPS On the first day, advocate Sombhojen Limbu made a presentation (attached with this report) on Constitutional and Legal Provisions of Nepal Unfavorable to Indigenous Peoples, Madhesis, Dalits, Muslims and Women based on the discussion papers he had drafted. Though the papers included references to relevant international human rights laws and standards, the presentation for the purpose of brevity omitted those references. The presentation identified specific discriminatory constitutional and legal provisions of Nepal that undermine the identities, cultures and inclusion and do not guarantee rights to equality, social justice and other socio-economic and cultural rights of Nepal s marginalized groups and also included recommendations for required changes to those provisions in his presentation. In brief, the constitutional and legal gaps were identified in - Articles of Interim Constitution on rights to equality, employment and social justice, liberty, education and culture, lands and natural resources, media (publishing and broadcasting) and citizenship and those relating to official language, national animal and dress, political association and membership and treaties and responsibilities of state, among others - Provisions in Civil Code relating to cow or ox slaughter and disturbances in one s religion and conversion, family or lineage, final rituals, among others

3 - - Provisions in acts relating to conservation of ancient heritage, Pashupati Area Conservation Trust, Nepal Sanskrit University and National Human Rights Commission, among others Provisions of Citizenship Act that are particularly biased against women and lack of sincere implementation of the provisions in the case of Madhesi communities The presentation was quite legal and technical but still could arouse number of comments and questions not only from the participants with legal background but also from those working at community levels who related those laws with experiences in the grounds in terms of implementation or lack thereof. They also identified other existing laws and policies and lack of sincere and effective implementation some favorable ones and need of new ones in their comments that can be summarized in following points: - Inadequacies in existing Inclusion Bill and lack of sincere implementation of reservation quota therein - Insufficiency of current multilingual education programs due to governmental will and availability of funds - Need of stronger legal provisions to tackle community discrimination and stigma or lack of effective implementation of existing provisions - Limitations in Local Self-Governance Act in terms of participation and ownership as well right to self-determination of indigenous peoples as guaranteed in international laws while need to distinguish between local and indigenous communities - Inadequacies in Act against Caste-based Discrimination/Untouchability and ineffective implementation of the current act - Lack of official recognition of customary laws, traditions and institutions of indigenous peoples unlike recognition of Hindu principles and institutions - Need to identify specific issues of women within the marginalized groups such as access to resources, social rights, etc The workshop identified that many of those discriminatory laws and policies were guided by philosophies of Hinduism and patriarchy while traditional mindset of people in bureaucracy that he called permanent government hindered effective implementation of some favorable laws and policies. At the same time, some participants questioned the rationale of the workshop to identify gaps in existing constitutional and legal provisions when marginalized communities are struggling for a new foundation in the form of a new constitution with stronger roots as per international standards for example UN Declaration on the Rights of Indigenous Peoples and ILO C169 in the case of indigenous peoples. GROUP WORK 1: ANALYZING ISSUES For this group work, the participants were divided in four groups based on their ethnic, caste or religious identity. The groups indigenous peoples, Madhesis, Dalits and Muslims then discussed to determine and analyze five main issues for their communities or groups based on the legal and policy gaps discussed above. The outcomes of the group works are provided below.

4 Muslim 1. Identity 2. Reservation 3. Islamic family laws 4. Urdu language and Madarsa education 5. Muslim Commission and permanent Hajj Committee Nepal s constitution and laws do not recognize Muslims as a distinct group. As a result, they are not guaranteed reservation/quota as a separate group in state mechanisms and other opportunities in proportion to their population. At the same time, Islamic family laws have distinct provisions on marriage and divorce, right to property and other issues that Muslims abide by but are not officially recognized. Urdu language education is not included in Nepal s national curriculum and Madarsa education is not recognized as formal education in higher levels (such as Maulawi Munsi on a par with School Leaving Certificate, Aalim Faajil on a par with Higher Secondary level, etc) and graduates of Madarsa education are not provided same opportunities as those of formal education system. There does not exist a separate governmental body such as a Muslim Commission to look into the issues of Muslims that are often in contradiction to provisions of Nepal s laws. Further, there needs to be a permanent Hajj committee to facilitate Muslim pilgrimage to Mecca a ritual of paramount importance for Muslims. Indigenous Peoples 1. Collective Rights - Constitutional recognition of indigenous governance institutions as representative organizations of indigenous peoples - Social, economic, cultural, linguistic and political rights of those institutions as fundamental rights under the constitution 2. Federalism - Identity-based federalism - Autonomy 3. Right to Self-determination - Self-rule - Self-governance - Self-management - Right to formulate laws - Self-administration 4. Right to Lands and Natural Resources - Right of indigenous peoples over the lands they have traditionally owned, occupied or otherwise used or acquired - Right of indigenous peoples over the water, land, forests, air and minerals, etc. available in their lands and territories

5 Right to Free, Prior and Informed Consent (for decisions affecting indigenous communities development projects, legislative changes, etc.) - Prior Information - Consultation - Meaningful participation - Representation - Sufficient time - Free Consent Indigenous Women 1. Constitutional provision to recognize rights of women from diverse indigenous/ethnic groups (Interim Constitution Art. 20) - With consideration to greater impacts of human trafficking, right to property, domestic and other violence on indigenous women 2. Right to proportional and meaning participation (in all terms political, economic, social, cultural, linguistic, education, etc.) 3. Right to traditional knowledge and livelihoods of indigenous women - Indigenous skills and knowledge (weaving clothings such as Haku Patasi, Charkha, fishing, herb cultivation, producing alcohol, etc.) 4. Right to natural resources traditionally used (such as forests for firewood, timber, herbs, etc. and mineral resources) 5. Right to customary laws and legal systems of indigenous women (such as women s property rights, marriage and other family decisions) including right to formulate their own laws Recommendations - To set up a separate body to address specific issues of indigenous women with constitutional recognition (perhaps an Indigenous Women s Commission) - To make arrangements for proportional and meaningful participation of indigenous women in all levels of state - To ensure identity and rights of indigenous women under fundamental rights of constitution - To increase access of indigenous women in mainstream processes of state as well as formulation of national policies Madhesis 1. Language and Dress - Policy of sole national language Khas Nepali and national dress Daura Suruwal Gunyu Choli imposed by Khas Bahun-Chhetri controlled state

6 - Official and mainstream publishing and broadcasting in the sole Khas- Nepali language spoken by few ethnic/caste groups Need to adopt multilingual policy at all levels of state and education recognizing Khas-Nepali, English and relevant native languages as official languages and Hindi as link language in Madhes Need to make arrangements for imparting basic education in native languages and higher education in language of one s preference 2. Citizenship - General public, those who are poor, Dalits and voiceless without access to influential persons have not been able to obtain citizenship Need to make arrangements for providing citizenship to eligible persons conveniently Concerned state mechanisms need to implement existing laws and policies effectively 3. Agriculture - Agriculture is the main occupation of Madhesis; however, lack of targeted plans to encourage agriculture and non-implementation of existing programs - Non-implementation of agriculture related plans and other related projects for irrigation, roads, etc. Need to formulate clear plans for development of infrastructure to support agriculture and implement those plans effectively Need to guarantee employment of Madhesi youths with priority in those plans 4. Inclusion - Madhesis do not have meaningful participation in state mechanisms and access to information for their effective participation in governance Need to guarantee meaningful inclusion through effective laws followed by sincere implementation of the laws State needs to carry out proper programs for information dissemination and awareness raising with effective mechanisms in place for the purpose 5. Land reforms - Limitations on ownership of land - Lack of laws for organized plotting of lands Need to apply limitations not on ownership of land but on riches Need for scientific programs for plotting of land Dalits 1. Caste-based Discrimination (Untouchability) - Implementation of Criminalization of Untouchability and Penalty Act (2068 Jestha 10) and related directives of Home Ministry

7 - Need to organize information dissemination and awareness raising activities, discussion interactions and seminars and conferences on the law - Need to set up Dalit Watch Center with participation of Dalits themselves under CDO offices - State need to organize discussions on untouchability with ritualistic communities for disallowing caste-based discrimination in rituals - Need to give constitutional recognition to National Dalit Commission - Need to amend laws for harsher penalties and compensation for crimes incited by caste-based discrimination or untouchability with stronger enforcement of those through effective court processes 2. Modernization of Dalits traditional occupations - State need to take measures for conservation and modernization of skills and occupations of Dalit community, including clearance of income tax - To formulate policies for commercialization of those occupations through cooperatives - To take measures to ensure that traditional occupations of Dalits are not made obligatory for the community and such cases of coercion to acted upon under Untouchability Act - To make provisions for intellectual property rights on Dalit skills and occupations if carried out by other communities so as to provide acquire royalty for use of such skills and occupations and utilization of the royalty for benefits of Dalit community 3. Updating listing of Dalit groups - To update the list of caste groups scheduled under Dalit community with identified last names - To make provisions to obtain recommendations for such listing from local governments (VDCs and municipalities) - In case of facilities and privileges for listed Dalit groups provided to non- Dalits through fraudulences, to take actions for such acts under judicial processes 4. Access to Natural Resources - To distribute lands to landless Dalits through scientific land reforms process - To provide for preferential rights of Dalits on water, land, forest and mineral resources - To make arrangements for free and unconditional housing facilities for poor and impoverished Dalit communities 5. Education, Health and Employment - To make provisions for compulsory and free education for Dalit children, including hostels - To make arrangements for free technical education for interested Dalit students - To make arrangements for free education for Dalit children in private schools and colleges too - To provide for free medical treatment and other health services for Dalits - To make arrangements for allowance for nutritious food for Dalit children and pregnant women or recent mothers

8 - To make provisions for meaningful participation of Dalits in all levels and organs of state - To provide for free distribution of seeds, fertilizers, etc. for all Dalit farmers - To make provisions for minimum daily wage of NRs 500 for Dalit laborers in agriculture 6. Madhesi Dalits - To arrange for equal distribution of government facilities and privileges among Pahadi and Madhesi Dalits - To prioritize comparatively between Pahadi and Madhesi Dalits through bottom to top approach - To make arrangements of citizenship distribution teams specially for citizenship-less Madhesi Dalits 7. Dalit Women Thus, the participants through the group work put forward many contemporary and pressing issues of Nepal s marginalized groups, including identity, inclusion and participation, recognition of Muslim religious laws, collective rights of indigenous peoples to self-determination, lands and natural resources, customary laws, and free, prior and informed consent, citizenship of Madhesis and Dalits and socioeconomic rights, among others. While most of the issues presented reflect international human rights standards and obligations of Nepal, some of the recommendations indicate over expectations of the participants. DIAGNOSING MAJOR ISSUES AND CHALLENGES On the second day, Shyam Shrestha, distinguished political analyst of Nepal, made a presentation (attached herewith) on Major Issues of Socially Excluded Communities in Nepal with a critical perspective on social inclusion in legislation and implementation processes after The presentation provided a clear picture of major achievements in social inclusion in terms of increase in representation in state mechanisms, including parliament, court and government, civil service and state forces and favorable legal provisions, including in drafts reports of Constituent Assembly. Nonetheless, he concluded, number of serious challenges remains unaddressed such as limited and ambiguous provisions for inclusion/reservation, unequal citizenship rights for women, lack of arrangements for non-territorial self-rule of Dalits and Muslims, limitations from federal structure with strong center, inequality for languages and existing feudal and patriarchal attitude of political parties and state administration. The presentation accompanied by periodic Q&A witnessed number of interesting comments from the participants on various issues summarized in following points: - Only 45% reservation in Nepal, need for social movements to ensure constitutional guarantee inclusive proportional participation in 100% seats of state mechanisms proportional to population of different groups as per international

9 practice (Switzerland) despite dissent opposition against the existing reservation system itself by dominant caste groups - Class-based inclusion for highly marginalized (poor, underprivileged) within the reserved communities, including specific provisions for inclusion of Muslims in particular - Meaningful representation and participation of marginalized groups in state mechanisms not merely in number but also reflected in positive changes in their issues (for example, more than 50% participation of Madhesis in one of the post- CA cabinets of Nepal but still inability to bring positive changes for the community) - Lack of definition of clear definition for special protection rights in draft reports of the Constituent Assembly - Lack of political will (civil service and political leadership) to provide post-marital property rights for women coupled with weakness of social movements - Non-recognition of traditional governance institutions and customary laws of indigenous peoples in draft reports of CA still a daunting challenge - Right to formulate laws at provincial levels a must for effective exercise of selfdetermination and autonomy GROUP WORK 2: CASES AND TESTIMONIES ON THE ISSUES Following the presentation, five mixed groups of Dalit, indigenous, Madhesi and Muslim participants were made. The groups worked collectively to come up with one or two community stories or testimonies of works the participants and/or their organizations are undertaking or need to undertake in relation to the issues they identified and analyzed during the workshop till then. While some of the cases presented broader issues that the participants seem to consider necessary to be acted upon such as Federalism and Women s Issues with recommendations on the issues, many cases also related to specific existing issues. Some participants also included information of what their organizations have been doing on the issue so as to link the works in action plan to be formed in the following day. Few specific cases are provided below. Inclusion in Nepal Army Recruitment # Lack of dissemination of information resulting in limited access to and reliability of information # Inadequate capacity building of excluded communities in terms of course preparation classes and training # Flaws in selection process (language and curriculum of examinations) # Transparency in selection (excessive nepotism) publication of results) # Weaknesses in existing limited reservation policies (and shortcomings in implementation of those policies) à There should be convenient information dissemination system providing meaningful access of all to the information à Limited reservation need to make arrangements for proportional representation of ethnic/religious groups in 100% seats (not just 40%)

10 à Inadequacy the reservation system to include underprivileged class of marginalized communities à Need to update the list of groups eligible for reservation through participatory process of formulation of laws/policies à Dire urgency to change the unequal examination system in terms of language and curriculum of exams Free Prior and Informed Consent (FPIC) in Melamchi Drinking Water Project Relevant international human rights instruments - International Labor Organization Convention United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) The Asian Development Bank-funded project is being undertaken in the ancestral domain (traditional land/territory) of Hyolmo indigenous community. Asserting the rights guaranteed under those international instruments, the community demanded for changing the site of dam for the project originally planned in the traditional land and forest area of the community. The community also demanded to change the name of the project to Helambu Drinking Water project to reflect the indigenous identity of the land. After series of protests, the government has agreed to address the above demands of the project while effective adherence to many points of the agreement yet to occur. Official Identity of Muslims as a Distinct Group # Nepal s constitution (even the draft reports of Constituent Assembly) and laws do not recognize Muslims as a distinct group. # As a result, they are not guaranteed reservation/quota as a separate group in state mechanisms and other opportunities in proportion to their population. # At the same time, Islamic family laws have distinct provisions on marriage and divorce, right to property and other issues that Muslims abide by but are not officially recognized. In cases where these laws are contradictory to state laws, it is often difficult to maintain social justice. # As Nepal s education system does not recognize Urdu language and Madarsa education system as formal education, Muslims have to go abroad to attain education in native language and customs. # In absence of a separate governmental body such as a Muslim Commission to look into specific issues of Muslims, many of those issues remain unaddressed. In this context, FATIMA Foundation have submitted number of memorandums on the issues to the Constituent Assembly members, including the Chairperson, tendered information papers to Constituent Assembly for conveying issues of Muslims at district levels and organized sit-ins at district administration offices, among other actions.

11 Self-Rule and Inclusion of Dalits and Muslims in Nepal s Federal Structure Context: Federalism with Identity, Constitution with Federalism Meaningful proportional inclusion as per population of different groups Bottom-top approach for highly marginalized minority groups à In areas with historic background of Dalits such as Salhesh region in southeastern Terai, the future federal structure should provide for autonomous area for local Dalits and similarly provide for autonomous areas for Muslims and other marginalized, oppressed minority groups with due consideration to their historic identities. à Arrangements to be made for proportional representation of Dalits and Muslims as per their population in all areas, including additional 3% representation at the central level and 5% in the provincial level as compensation for past injustices as well as provisions for special protection rights. In a separate casework on Federalism, participants of another group advocated for greater autonomy and rights at provincial and local levels including right to formulate laws, economic policies, use and control of local natural resources and conserve and promote language, culture and religion with foreign, security and monetary policies and large-scale treaties under the purview of the central government. Women s Issues Identity # Gender inequality in citizenship in new constitution s draft à Madhesis and Muslim women, in particular, bear no citizenship certificate, thus cannot get marriage registration and are denied facilities and privileges provided by the state # Non-inclusion of indigenous ethnic groups (such as Balimiki community) Inclusion # Need to guarantee inclusive proportional representation of women from different ethnic/caste groups as per their population in all state agencies as well as political parties, national and local organizations Right to Property # Nepal s Interim Constitution provides equal rights for sons and daughters on family property; however denies such right post-marriage that needs to be annulled Domestic and other former gender violence # Social, psychological, economic, physical and other sexual violence, for example - Violence against for dowry or other physical gain, particularly in Madhesi, Muslim and Marwadi communities - Abuse or ill-treatment on allegations of witchcraft as a result of superstition, poverty or other social ills - Child marriage and polygamy - Women and girls trafficking due to poverty, lack of awareness - Social restrictions such as Ghumto (head covering) among Madhesi women Right to self-determination

12 # Right to self-determination of women on family and social issues such as marriage, divorce, way of life for single women (widow), etc Further, few participants also just spoke briefly about different issues of marginalized groups they have been working on in personal or organizational capacities. For example, a Madhesi participant shared his experiences of working on monitoring and documenting excessive human rights violations (torture, abuse, extra judicial killings, etc.) targeted against Madhesis, mainly in the southeastern Nepal. A participant from an indigenous community informed the workshop about the ongoing court case of inclusion in appointment of judges that she has filed with two other Madhesi lawyers. In his sum-up of the discussions, Shyam Shrestha stressed on the need for alliance building of marginalized groups for collective advocacy on their issues, including advocacy with and through media in order to gradually assert the rights of the groups with constitutional guarantee of those rights as initial course of action. GROUP WORK 3: TRANSFORMING NEEDS TO ACTION By the end of the second day, the participants as reported above had identified discriminatory laws and policies of Nepal, analyzed and diagnosed few issues, including some specific community stories or work testimonies and some broader issues like federalism and women s issues. They had also recognized needs for actions on those issues in that they then worked on to transform into an action plan with information on personal and organizational responsibilities or capacities. Based on the discussions from previous days, the participants were provided a specific example on the issue of Inclusion. Objective To lobby for full (not limited to 45% reservation) inclusive proportional participation in all levels of every state mechanism, including political parties Actions # To prepare and disseminate case studies on such international practices of full inclusive proportional participation in state mechanisms (e.g., Switzerland) Implemented by local or national organization with the help of experts # To lobby with policy-makers (political leaders, parliamentarians, government ministers and civil servants) for changes in Nepal s laws in line with such international practice Implemented by local organizations for local governments and coalition of local and national organizations (such as NCARD, SANKALPA) for national-level lobbying However, as the discussion on the action plan progressed, broader issues such as Federalism dominated. Thus, the resulting action plans also mostly included with broad actions that are summarized below. 1. Recognition of Muslims Objective

13 To effect changes for constitutional recognition of Muslims as a distinct group along with identity of other groups on basis of language, religion, culture, etc. Actions 1. Awareness-raising, trainings and empowerment 2. Interactions and discussions with relevant intellectuals and parliamentarians 3. Lobbying with political parties and concerned government agencies including submissions of memorandum and petitions 4. Forming network at national level 5. Enhancing access for greater mobilization of media 6. Peaceful protests to exert pressure on policy-makers Implementing organizations FATIMA Foundation with national level networks like NCARD, SANKALPA and other organizations concerned with identity Target groups Ministries of Law and Culture and other line ministries; Constituent Assembly/parliament and local governments Time period To continuously strive for official recognition of Muslims and other unidentified groups (indigenous or Dalits) until relevant recognition is achieved. 2. Inclusion Objective To produce updated list of excluded communities for reservation in state mechanism based on new census Activity 1. Preparatory Phase - Coordination/Collaboration - Funding - Formation of committees - Media/information 2. Census Analysis and Research - Listing, study and collection of cases, petitions and duplications in census - Review of previous census - Production of preliminary list 3. Validation of Results - Interaction workshop with stakeholders Implementing organizations NCARD alliance member organizations and donor agencies NCARD alliance member organizations and experts NCARD alliance member organizations Through/With Experts on the issue Research team Community representatives, Experts on the issue, GoN line

14 4. Awareness raising, lobby, advocacy and campaigning for required changes in the census 3. Citizenship NCARD alliance member organizations agencies and like-minded partner organizations Political parties, Line ministries, concerned agencies (such as Civil Service Commission) and other stakeholders Objective To effect changes in Nepal s citizenship laws and policies, and implementation thereof, for arrangements of citizenship certificates to marginalized groups, including through lineage of mothers Activity 1. Awareness raising activities for marginalized groups on Nepal s citizenship laws and policies Implementing organizations Concerned organizations, civil society and political parties Through/With - Discussions - Interactions - Information dissemination Target groups Marginalized communities Time period 1 year continuously 2. Discussions/dialogues with local and national government agencies Concerned organizations, civil society and political parties - Discussions and interactions Local and national government agencies 3 months 3. Take initiatives to deploy government personnel to community levels 4. Lobby for changes in Nepal s draft citizenship laws to amend the provision stating lineage based on father and mother to lineage based on father or mother Marginalized communities, their organizations and stakeholders - Pressure actions All stakeholders - Pressure actions Local agencies Political parties, Nepal government Continuous Until the change is made 4. Federalism (Naming, Boundaries and Rights) Activity 1. For safeguarding the achievements made so far and to attain greater rights not included Implementing organizations Those supporting federalism marginalized Target groups Decision-making levels of state (political parties, Time period Until the issue of identity-

15 yet, carry out - Information dissemination on federalism through discussions, interactions, trainings, conferences and other public awareness actions like pamphlets, etc. - Lobby dialogues and debates among those supporting and against federalism - Actions to exert pressure such as submission of memorandums, petitions, warnings, etc. - Strategic litigations at the courts - Peaceful intervening protests such as sit-ins, lock-in/outs, strike, etc. - Rebellions as last resort indigenous, Dalit, Madhesi, Muslim communities, including women; political parties (Madhesi, indigenous-led parties and others); civil society leaders, governmental and non-governmental organizations; civil administration; media, among others parliamentarians, civil society experts ) and other stakeholders Those who are against federalism and seek to maintain status quo due to their unitary or Bahunism mindset Media based federalism is addressed and implemented with guarantee of rights for marginalized groups CONCLUSION Despite dissension about producing specific or general action plan at the end, the workshop can be considered to be effective to a great extent for identifying legal and policy gaps of Nepal for the marginalized groups of the country, analyzing their major issues and determining challenges and needs for actions. Some concluding observations are as follows: Legal and Policy Gaps 1. The workshop was able to identify specific discriminatory constitutional and legal provisions of Nepal that include several articles of Interim Constitution, Civil Code, Citizenship Act, acts relating to conservation of ancient heritage, Pashupati Area Conservation Trust, Nepal Sanskrit University and National Human Rights Commission, among others. 2. It was confirmed that many recent laws, bills and programs, including Inclusion Bill, Local Self-Governance Act, Act against Caste-based Discrimination/Untouchability and Multilingual Education Program are also seriously inadequate and flawed. 3. While lack of effective implementation of existing laws and policies is seriously concerning, there is need for stronger legal provisions to tackle discrimination, even at the levels of community and official recognition of religious laws of Muslims, customary laws, traditions and institutions of indigenous peoples. 4. Many of the discriminatory laws and policies are guided by philosophies of Hinduism and patriarchy and so is the mindset of traditional political leadership and state administration that is largely hindering the process of change. 5. There is need for greater efforts to identify specific issues of women within the marginalized groups.

16 Major Issues and Challenges 1. Absence of constitutional identity as a distinct group results in a number of serious impacts for Muslim community, including lack of participation due to non-reservation; non-recognition of Islamic family laws that they abide by but often contrast with state laws; invalidation of their native language (Urdu) and religious (Madarsa) education and non-existence of separate governmental bodies (Muslim Commission and formal Hajj Committee) to look into their specific and/or religious affairs 2. Indigenous peoples relate their pressing issues with relevant international human rights standards (UNDRIP, ILO 169) that include their collective rights to Self-determination; Lands, Territories and Natural Resources; Free, Prior and Informed Consent and Customary Laws and other social, economic and cultural rights. 3. Indigenous women seek constitutional recognition of rights of women from diverse ethnic groups in terms of proportional participation of women from different groups in all affairs and specific governmental body looking into issues of indigenous women. Further, they stress on their rights to their traditional livelihoods and knowledge, natural resources and customary laws. 4. Language and dress, citizenship and inclusion are major issues of Madhesis while the community also places high-priority on loss of lands and development of agriculture. 5. Caste-based discrimination (untouchability) and lack of effective measures to tackle that is the most critical concern of Dalits. Further, they place large importance on access to natural resources, social and economic benefits and on greater vulnerability of Madhesi Dalits. 6. While some achievements in social inclusion in terms of increase in representation in state mechanisms and many favorable legal provisions, including in drafts reports of Constituent Assembly, number of serious challenges remains unaddressed such as limited and ambiguous provisions for inclusion/reservation, unequal citizenship rights for women, lack of arrangements for non-territorial self-rule of Dalits and Muslims, limitations from federal structure with strong center, inequality for languages and existing feudal and patriarchal attitude of political parties and state administration. 7. Identity-based federalism with stronger provisions of autonomy and self-rule extended up to the highly marginalized communities at local levels appear as the super-agenda of all marginalized groups from discussions and group works at the workshop. 8. The workshop also stressed on the need for updating the list of excluded communities, including indigenous groups of Nepal so as to encompass all relevant communities facing discrimination in Nepal. Actions Needed 1. The workshop has proposed some broad action plans for effecting changes in laws and policies, and assisting effective implementation thereof, for

17 constitutional recognition of Muslims and asserting right to citizenship for marginalized groups, including gender equality in citizenship. Another even broader action plan for guaranteeing identity-based federalism has also been put forward 2. Further, a specific action plan on updating the list of excluded communities for the purpose of proportional inclusion has also been produced. 3. The action plans and discussions and group works during the workshop nonetheless markedly indicate the need for strengthening alliance of marginalized groups for collective advocacy on their often overlapping issues such as full inclusive proportional participation (not limited to 45% reservation) in all state mechanisms, right to non-discrimination on any ground and provisions for self-governance at levels of marginalized communities, among others. 4. At the same time, the workshop also helped to identify expertise of the participating organizations according to which they have proposed their interventions. While NCARD alliance member organizations focused more on community and political mobilization, participating partner organizations stressed on strategic litigations, rights-based advocacy and research and lobbying.