By Dr Gyan Basnet (PhD)
Today Nepal stands at a major junction. Lack of a common vision among the political parties and theirs leaders together with social divisions in the name of ethnic politics and enduring human rights violations demonstrate that they are embarked on a path that is full of uncertainty. Government officials and personnel of the armed forces, both governmental and rebel, including leaders those who involved and gave orders in the name of the people’s war, (between 1996-2006) have seldom been charged or even questioned regarding the violations of rights, mass killings and destruction of infrastructure that took place. Those who were responsible for grave crimes, including crimes against humanity, are escaping the punishment without which it is hard to imagine a sustainable and just peace ever being achieved.
In this column I wish to argue that the supremacy of the human rights must be the compromise point in any issues under any circumstances. I shall observe on the human rights protection mechanisms provided by their past constitutions, and I shall suggest that the future constitution (Nepal has been in constitution and peace building process since 2006) be made a strong ‘bill of rights’ document.
Re-visiting the Past
Nepal’s political processes evolved around feudal and paternalistic hubs leading to centuries of domination by a small ruling class. The democratic movement launched by the Nepalese people at last succeeded in overthrowing the despotic Rana regime in the 1950s. The relief and expectations of the people instantly grew, and democracy, liberal values, and progressive thinking began to have an influence. However, political instability, frequent government changes, and a watering down of revolutionary principles meant that very limited time and energy became available for serious economic development capable of improving people’s lives.
In 1959 a second constitution was formulated and the first general election held. New directions were set and hopes were aroused. The constitution was not only a fully-fledged one but also the first truly democratic one. It guaranteed the fundamental rights of the people of Nepal with a view to establishing a welfare state. Without discrimination on the grounds of race, religion, sex, caste, or tribe the country’s citizens were guaranteed modern fundamental rights, such as personal liberty, equal protection in law, and the right to constitutional remedies. However, opposition to the constitution from those with vested interests in the old bureaucracy and from feudal elements, together with in fighting among the political parties, led to constitutional failure. Mass discontent and disillusionment resulted from the growing gap between public expectations and the limited resources provided by government.
In the following year, the King took direct control of the government, dissolved the parliament and suspended the constitution, including all provisions relating to fundamental rights. Authoritarian rule was established which was to last for thirty years. In 1962, a third constitution was promulgated under the rule of the King. By this the King became the sole power in the kingdom: political parties were banned, and the press became strictly controlled. People’s civil freedoms, such as freedom of expression, the right to information, the right to form an assembly or union, and the right to privacy, were much curtailed, and there was little hope of broader participation by the people in any decision making relating to development policy.
The years 1989 and 1990 saw dramatic political change. The democratic movements of 1990 not only established a Westminster-style parliamentary structure, but also caused a power shift from an authoritarian regime to a form of open and democratic governance. The sovereignty of the people was recognised with a constitutional monarchy and guaranteed personal freedom. People’s political rights and civil liberties were guaranteed for almost the first time, and people were able to express freely their desire for their cultural and social rights to be respected. The Constitution of the Kingdom of Nepal 1990 was promulgated with a preamble stating: ‘The source of sovereign authority of independent and sovereign Nepal is inherent in the people.’
Most countries have a provision in their constitution or other legislation relating to fundamental rights that reflect the aspirations of the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). The Nepalese constitution of 1990, too, provided for most basic human rights as enshrined in these international human rights documents. These included the fundamental rights to equality, freedom, information, property, privacy, and religion, as well as cultural, economic and social rights, rights against preventive detention and the right against exploitation and exile. The constitution provided for the independence of the judiciary, and it incorporated effective constitutional remedies in support of fundamental rights. Such rights guaranteed Nepalese citizens an autonomous personality by which they were able to participate freely in public life with their rightful claim to universality, a ‘realization of their homo politicus status’. However, the constitution failed to classify economic and social rights as being fundamental, placing them instead under ‘Directive Principles and Policies of the State’. This made them unjusticiable and therefore unenforceable in any court until they could be progressively realised and implemented by subsequent legislation as national resources and means permitted.
One positive development after 1990 was Nepal’s signing and ratification of almost all international human rights treaties and conventions including not only the ICCPR and ICESCR but also the Convention against Torture and the Geneva Conventions. Under these latter conventions, Nepal was obliged to respect fundamental rights against arbitrary deprivation of life, against torture and against the enforced disappearance of any of its citizens even in a state of emergency or in efforts to end the armed insurgency. Governments have, however, ignored these obligations, and, without their effective acceptance and the imposition of national standards, the obligations have remained largely unrealized.
Ten years of Maoist insurgency (1996-2006) proved painful and costly for Nepal. The country was weakened economically, militarism reached unprecedented levels, and there was considerable misery and human cost. The insurgency, resulting instability and lack of credible government only added to the crisis over human rights. Individual autonomy within a society is said to be ‘the capacity of a human being to determine what he is and to shape his life in accordance with his convictions’. Nepal’s situation with regard to personal freedoms and liberties is a depressing story that is full of oppression, exploitation and domination. Government officials and the police have seldom been charged with violations of rights. The country, therefore, has made next to no headway in human development, its social harmony has been sacrificed, and with that its peace. The country’s failure to enforce human rights provisions, together with poor human rights education, has undoubtedly hindered the consolidation of its democracy. The widespread poverty of its people, the low level of literacy, and a lack of state institutional support are, moreover, huge obstacles to the establishment of the rule of law and to furthering democracy and human rights in Nepal.
Addressing the Future: Providing the Human Rights in the Fullest Sense
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 including the right to development. Their past constitutions, as they have seen, over-emphasised the civil and political while leaving to chance the economic, social and cultural. Our forthcoming constitution, therefore, must move beyond the past and incorporate within its provisions all fundamental human rights including full economic, social and cultural rights.
A hungry stomach cannot serve a nation: a hungry stomach cannot participate in greater political, social and democratic decision-making process. A person without access to 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, their future bill of rights must aim to fulfil those basic needs and to make them enforceable in a court of law with strong remedies.
Political freedoms without at least some economic prosperity are but myths and fantasies. Therefore, their new constitution must address the indivisibility, interdependence and interconnectedness of all human rights. The political parties must see it as their utmost duty to ensure that the future constitution provides for full fundamental rights, both the civil and political and the economic, social and cultural, e.g. the right to food, the right to health, the right to drinking water, the right to housing, the right to participate in political process, and the right to development for all citizens. This is the first essential.
In today’s world, respect of human rights and fundamental freedoms has to be the foundation of any legitimate state and the tool that legitimizes the actions of its government. Human rights, as provided within the constitution, should influence future governments, as well as institutions and individuals, in the shaping of policies and practices. To protect human rights and freedoms, including the rule of law, there must be a legal system that can respond to problems in a fair, non-discriminatory and effective manner. However, a catalogue of rights and liberties expressed in the constitution, no matter how extensive, is insufficient unless those rights and freedoms are supported by strong liberal legislation with firm enforcement mechanisms and political commitments at every level. In Nepal, a human rights culture must be deeply embedded within the political parties, all level of governance and within civil society.
I close with words received from Cynthia Hyde, an American well-wisher of Nepal who keeps a keen eye on everyday developments on their political scene: ‘With dharnas, bandhas, (strikes) bombings, killing of journalists and innocent individuals, political divisions, and enormous challenges of the task at hand, the way forward is not clear. Human rights have to be the foundation of any legitimate state.’ Let them pray that law and order will be restored in their country and that the primacy of human rights will prevail.
Dr Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected]