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In Search of a Constitution


Sohan Prasad Sha

CONSTITUTIONAL NATIONALISM AND LEGAL EXCLUSION: EQUALITY, IDENTITY POLITICS AND DEMOCRACY IN NEPAL (1990-2007)
By Mara Malagodi
Oxford University Press, New Delhi, 2013, pp. 316, Rs. 895.00

VOLUME XXXVII NUMBER 10 October 2013

With the heightening of a heated nationalism debate, this book is a timely contribution to the constitution making process in Nepal. There has been no dearth of constitutions in Nepal with those of 1948, 1951, 1959, 1962, 1990 and 2007. Nepal has been going through a fresh constitutional crisis in recent years. The process of drafting the new constitution which started with the establishment of a popular Constituent Assembly failed in 2012, and presently another constituent assembly election is being sought. The book under review sheds interesting light on this process and unpacks the overall legacy of constitutionalism in Nepal and socio-political conflicts involved in the Constitution making processes through the case study of the 1990 Constitution.   The author argues for a framework and perspective that makes a strong case for constitutional ethnography in Nepal. Malagodi draws a parallel between ‘Factual diversity-Formal equality’ that existed in the making of the 1990 Constitution and in the post-1990 democratic context with regard to ‘the Nepali people’ vis-à-vis ‘the extremely diverse nature of Nepali society’ (p. 8). Malagodi argues that the constitutional nationalism in Nepal was overtly or covertly complicit with legal exclusion. This duality often contradicted, as the 1990 Constitution progressively turned out to be like ‘sword and scales’ that vitiated the relationship between political power and legal justice and the ensuing exclusionary patterns (p. 48).   Malagodi examines the 1990 Constitution through the lens of historical institutionalist approach. This implied probing two core questions in relation to the Nepalese polity. First, ‘why was that particular choice of institutionalization of the nation made in Nepal’s 1990 Constitution-making process?’ (p. 11). Second, ‘what have been the implications of the particular choice of institutionalization of the Nepali nation in ethnocultural terms in the 1990 Constitution?’(p.13) In the midst of these questions, Malagodi tries to unravel the nature of the social forces which strangely transformed a pro-democracy movement into an exclusionary one, thereby creating a new monolithic Constitution in 1990 (p. 3).   The book investigates in detail debates concerning nationalism, constitutionalism, democracy, equality and identity politcs and issues of social exclusion. The two ways in which social exclusion operates are, first, the formation of national identities—through history, language, religion and culture—that fits into the category of state framed nationalism ( governmental nationalism) and included only limited recognition of the country’s socio-cultural diversity. Secondly, while the concept of ‘We, the People’ envisioned by Nepali Constitution-makers tend to homogenize the people of Nepal, it increasingly fuelled a discontent amongst the minority.   ...


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