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Nepal: The Birth Of New Freedoms? – OpEd

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Despite so many dissenting voices, demonstrations, mass killings and shootings, the long-awaited constitution has at last been delivered by the Constituent Assembly. It is the outcome of almost 70 years of struggle by the people, a bloody civil war, and subsequent mass protests, killings and a continuous political dialogue that has lasted for nearly two decades. The dream of constitution making by the CA has been a costly project in resources, money, time and human life.

Its delivery is, however, a welcome first step, a point of departure in that it provides for us all a political platform on which the nation and its people can stand. The question is: will it prove to be the answer? Will it even survive? It may represent the culmination of a long political transition, but large parts of our population still believe that their demands and voices have been ignored during the drafting process. The first and foremost responsibility of the government now is to bring opposing voices into the mainstream. If their demands are genuine and pragmatic, they must be addressed without conditions.

I, myself, have many reservations over provisions in the newborn constitution that relate to federalism, secularism, citizenship and forms of governance. The document is in many respects too long, vague and boring and does not provide a clear meaning. The preamble of any constitution is supposed to be lucid and punchy, but here there is so much ambiguity.

Moreover, the new constitution represents merely the interests of a few political parties and their bosses but not the will of the people in general.

That said, however, it must, nevertheless, be seen to open new doors and platforms for further political conversation on dissenting issues between all political stakeholders. In that case the newborn constitution could come to be celebrated as a victorious and historic accomplishment through which all political forces will be able to seek peaceful solutions to our many problems.

This article seeks to comment on the fundamental human rights enshrined in the new constitution and their implications for the future. The document is certainly one of the most comprehensive in providing fundamental freedoms and human rights. It incorporates a complete set of civil, political, economic and social rights – all on equal footing. It provides all kinds of political freedoms and other economic and social rights including the right to housing, food, employment, and welfare rights, rights of the child and of women, rights for elderly people, right to health and most importantly comprehensive rights for dalits and other vulnerable people. It means that the new constitution goes much further than its predecessors in securing the rights of the people and its fundamental rights go far beyond anything provided by any other country in the world. The big question is: how easy will it be for the state to translate them into reality?

There are so many hopes and aspirations among our people who wish very much to escape from poverty and the daily struggles of life. They would prefer to live in dignity doing as they please. However, all human rights are costly to realize and address in a proper manner. The huge question is: are the rights now to be provided by the constitution achievable immediately? Will there be sufficient resources to address all in the near future? Moreover, will the given rights have any real meaning unless they are backed by strong economic, social and institutional enforcement mechanisms?

Firstly, the rights enshrined in the new constitution will only provide avenues towards achieving the desired goals. To realize any rights in a proper manner, the state will need to formulate proper strategies and planning. The rights themselves will need to be backed by strong policies backed in turn by consistent and liberal laws, rules, and regulations. People have so much hope, and they wish to see positive results on the ground. The manner and attitudes of old will no longer work in the changed political context. The state must amend its attitude, manner and way of working, and provide a service to its people from the household level to the market place and from the industry level to the public office. Otherwise the newly granted constitutional rights will remain nothing more than black letter laws as they were before.

Secondly, the constitutionally enshrined fundamental rights language must not be used purely to benefit the interests of a few dominant groups who have traditionally had better access to the courts and other institutions. We must utilize these rights to empower the poor and the vulnerable. The first and foremost plan for the state must be to provide and fulfill the minimum essential level of housing, health and food for all. A special focus must be placed on those who are living below the poverty line. Any law and constitution that fails to back the poor or does not represent the soul of the marginalized is doomed to failure.

Thirdly, strong and dynamic mechanisms must be introduced to realize and instutionalize the given rights in a proper manner. Clear institutional responsibilities must be established. The increasing embodiment of rights norms in institutional and public policy, as well as changing rules regarding how decisions for meeting basic needs are made, will create incentives for the state to fulfill its obligations. The court of law must be accessible to all. Several specific factors facilitate the use of judicial mechanisms for human rights enforcement, including access to court and legal resources, removal of procedural hurdles, capacity building for group litigants, a nonpartisan judicial appointment process and a construct of legal competence through legal training. The human rights commission and anti-corruption bodies must be made more independent of government. Armed forces must be trained. A culture of respect for human rights must be established at all levels of politics.

Finally, one of the most important aspects of the peace process is to address the rights violations, abuses and extra-judicial killings of the conflict era: without that the peace process will never be complete. The truth and disappearance commission is already working on this, but all stakeholders, political forces and the new government must play a role in genuinely helping to establish the truth of what happened, to punish the perpetrators and to compensate the victims. If we wish to establish a durable peace in the country, violence, killings and destruction must never become a political tool for change. Such acts must be interpreted as crimes against the people and against humanity as a whole. The lives of individuals must not be treated as cheaply as they have before. Now the focus must be on punishing all human rights violators. Thus, we shall achieve the realization of human rights and fundamental freedoms in our country.

A constitution is a dynamic political document, and its making is a never ending political process. Interpretations by the apex court and the making of liberal laws and policies to back up the provisions of the fundamental rights will make the given rights more pragmatic and achievable. The comprehensive set of fundamental rights as enshrined in the new constitution must be used as a weapon to make a difference to the lives of ordinary people. These rights must be used to power the powerless and to grant a voice to the voiceless. They must be able to serve the needs and hopes of the people. Otherwise the very essence of human rights will be meaningless. Continued dialogue and persuasion are vital to legitimize the rhetoric of human rights and empower individuals making rights claims.

Dr. Gyan Basnet

Dr. Gyan Basnet

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, Lecturer & 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]

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