In Nepal, for the second time the constitution-making process is under way with great hopes of a new dynamic document emerging from the constituent assembly. The deadline is again just around the corner. However, big questions are currently being asked by the people: will the assembly actually deliver a constitution and will it be on time? Moreover, will it be a document that is acceptable to all – one that is visionary and inclusive and, most importantly, one that institutionalizes the fundamental freedoms and rights of its people?
Provision for these aspects within the constitution is vital: indeed, they need to be the very heart and soul of the any new document. Have they, I ask, yet sufficiently debated and discussed the concept and content of a human rights-oriented constitution? Many questions still need answering: what exactly is a human rights-friendly constitution? What should its content and basic features be? How can it qualify as a good constitution? What is the means of measuring it? To me it must, at least, offer fundamental protection for many kinds of human rights.
It is true that a comprehensive list of human rights and freedoms has already been guaranteed in the interim constitution and legal framework, but the drafting of the new constitution by the second historic constituent assembly represents a unique opportunity to review the existing provisions, to fill any gaps, and to enhance the bodies responsible for protecting and promoting human rights while at the same time making them more responsible, more accountable and more human rights-oriented. Have politicians so far given enough attention to these issues? Are the politicians sufficiently sincere about these matters? Respect for human rights should be the fundamental aim and highest principle of constitutional government. The liberty of the individual should never be left for political determination but must be defined by the constitution and the law. In this column I wish to argue that the supremacy of human rights must be respected in all circumstances, and I shall suggest to the politicians that they take the issue of fundamental human rights extremely seriously and that they ensure their incorporation within the new constitution.
Firstly, I suggest incorporating economic, social and cultural rights as fundamental rights. Today, throughout the world fundamental human rights are accepted as being indivisible, interdependent and interconnected, embracing civil and political rights together with economic, social and cultural rights. The past constitutions over-emphasized the civil and the political while leaving to chance the economic, social and cultural. The forthcoming constitution, therefore, must move beyond what existed in the past and incorporate within its provisions all fundamental human rights including full economic, social and cultural rights. A person deprived of sufficient basic necessities, such as food, shelter, clothing and housing, can contribute nothing to the wider society. The right to vote, freedom of expression and the right to assembly are incapable of solving the hand-to-mouth problems of the masses. Thus, the future bill of rights must aim to fulfill basic needs and to make them enforceable in a court of law backed by strong remedies.
Secondly, I suggest incorporating the right to development (RTD) as a fundamental right within the constitution. Nepal, as yet, has never explicitly mentioned such a right in any of its institutional, legal or constitutional frameworks. Why should it now do so? Why would it be so significant? The RTD is, in fact, a comprehensive process that extends beyond economics to embrace social, cultural and political fields: it is described as a vector of different elements comprising, for example, income, employment, health, education and opportunities in general including all forms of freedom. The RTD sets a visionary agenda and is unique in its ambition and scope. The right concentrates the development process around broad participation, empowering the poor and distributing resources to all without discrimination. If its norms can be firmly embraced at the core of Nepal’s development programme and policy formulation it can revolutionize the country’s whole approach to development.
Politicians have plenty to say about inclusion, participation and social justice, but have they really thought through just how these ideas could be made to work in a real sense?
By including the RTD in the new constitution as a fundamental right they would provide a departure point, which could have a great impact on distribution and redistribution of resources and on bottom-up development that would involve people from all walks of life. Moreover, if the norms of the RTD could be integrated into all levels and layers of development, and pro-poor policies granted a broad political, legal, and institutional commitment, the right, as an amalgam of all human rights and a foundation for social justice, would prove to be a powerful weapon for mass re-construction and immense social transformation in our country.
Finally, it is vital that the human right to live in peace and in a fair and democratic society for all is embedded within the constitution. Extra-judicial killings and violence in the name of politics – whether by the security forces or by other armed groups – must be declared unconstitutional and be strictly prohibited: such actions must be regarded as crimes against humanity or even genocide. So very recently, Nepal witnessed many human atrocities, extra-judicial killings, and gross violations of human rights, and yet many of the officials and forces personnel on both sides who gave orders in the name of the people’s war have never been charged. With so many responsible for grave crimes, including crimes against humanity, managing to escape punishment, it is hard to imagine that a sustainable and just peace can ever really be achieved. It is vital that Nepal ensures that such atrocities are never repeated. The constitution must state clearly that no single individual may be killed in the name of politics, civil war, ethnic-politics, ideology or social and political change. If the new constitutution fail to insert this clause in the constitution, I strongly believe that the new document will fail as a bill of rights. Future generations will accuse us of having learnt nothing from the ten-year civil war that produced mass killings, immense destruction and crimes against humanity? The right to live in peace and in a democratic and fair society must be at the heart of the constitution. Killings and outrages against human dignity must be confirmed as ‘never again’ in the new constitution, which must in turn become the basis for Nepal ratifying the Rome Statute of the International Criminal Court.
Today, respect of human rights must be regarded as the cornerstone of any legitimate state: it is the tool that legitimizes the actions of any government. The safeguarding of the fundamental rights of the people has to be the heart and soul of the any written constitution. However, it is one thing to list a catalogue of rights and liberties in the constitution: it is another to bolster those rights and freedoms with strong legislation ensuring firm enforcement mechanisms and political commitments at all levels. In Nepal, a human rights culture must become deeply embedded within all political forces, all level of governance and within civil society. Human rights are the culture to establish. It is about attitude. It is about respecting each other’s way of life creating a fair, equal and rights-based society. The present constituent assembly has a unique opportunity to establish such a just society based on human rights, the rule of law and respect for all. The great challenge now is: Will it happen? Will those individuals in power take the task seriously? Will they prove that they have indeed learned from the atrocities of the recent past, and that they are ready now to change their attitudes?