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Securing Dalit Rights in Nepal’s New Constitution

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A US human rights report on Nepal's Dalits makes several constitutional recommendations.





The report analyzes Nepal’s Interim Constitution to help inform the ways in which the new constitution may be drafted in accordance with the country’s international human rights obligations to secure Dalit rights. The following is the introduction of the 89-page document entitled "Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution":


On January 15, 2007, Nepal promulgated the Interim Constitution of Nepal (“Interim Constitution”).[See note 1] The decision to adopt the Interim Constitution was made in the context of broader negotiations concerning Nepal’s ongoing peace process.[See note 2] In these negotiations, the position of a number of entities, particularly the Maoists, was that the constitution in force— the 1990 Constitution of the Kingdom of Nepal [See note 3] —would not enable Nepal’s transition to a democratic and inclusive government. [See note 4] The 1990 Constitution was perceived as flawed, both because of its lack of substantive rights protections [See note 5] and because it had been drafted under “monarchial authority” with very limited public participation.[See note 6]

The Interim Constitution seeks to break this constitutional tradition and “institutionalize the achievements of the revolution and movements till this date.”[See note 7] It is the controlling law in Nepal until the new constitution is created by elected members of the Constituent Assembly [See note 8] —a process for which the Interim Constitution provides and one that is expected to take years.[See note 9]

In drafting the new constitution, the Constituent Assembly may determine that some of the Interim Constitution’s provisions are “useful.” A[See note 10] s a predictor of the kinds of constitutional arrangements being envisaged in Nepal, the Interim Constitution enables an assessment of the shape such arrangements must take in order for the Constituent Assembly to meet two of its key responsibilities in drafting the new constitution: crystallizing the peace after Nepal’s prolonged civil war [See note 11] and enabling Nepal to fulfill its international legal obligations to secure fundamental rights. As noted throughout this report, these two responsibilities can only be met if the rights of Nepal’s Dalit population—a group that has faced more than 2,000 years of systematic discrimination on the basis of caste—are fully realized.

Although this report focuses on the inclusion of rights and protections for Dalits in Nepal’s new constitution, the Center for Human Rights and Global Justice (CHRGJ) emphasizes at the outset that such rights and protections should not come at the expense of other marginalized groups in Nepal. This report focuses on Dalits because of the Center’s expertise regarding their history and treatment in Nepal, along with its general expertise on the human rights implications of caste-based discrimination wherever it exists.[See note 12] The Center strongly urges the Constituent Assembly to observe the input and recommendations of other organizations regarding all marginalized groups in Nepal.

B. THE IMPORTANCE OF DALIT RIGHTS IN NEPAL’S CONSTITUTIONAL MOMENT
In fulfilling its first responsibility of crystallizing the peace after Nepal’s prolonged civil war, the Constituent Assembly must recognize that the political, social, and economic exploitation of Dalits and other minorities in Nepal was a root cause and legitimating factor of the “People’s War.”[See note 13] A failure now to move towards the eradication of those same practices invites future instability in the transitional period. [See note 14] Further, the constitutional Center for Human Rights and Global Justice reform experiences of several other countries have exemplified the transformative power of a constitution grounded in human dignity that explicitly seeks to further human rights.[See note 15]

The second responsibility—realizing the rights of Dalits, who have been characterized as the “most marginalized and deprived group of Nepal” [See note 16] —presents the true test of the seriousness with which the Nepalese government implements its human rights obligations.[See note 17] While the 1990 Constitution of the Kingdom of Nepal prohibited caste discrimination, [See note 18] it was littered with exceptions that significantly weakened rights protections.[See note 19] Moreover, the prohibition against caste discrimination was neither consistently implemented nor enforced.[See note 20]

C. CHARTING AN ANALYSIS OF NEPAL’S INTERIM CONSTITUTION FROM A DALIT HUMAN RIGHTS PERSPECTIVE
This report analyzes Nepal’s Interim Constitution to help inform the ways in which Nepal’s new constitution may be drafted in accordance with the country’s international human rights obligations to secure Dalits’ human rights. Nepal’s poor constitutional record of addressing Dalit rights, along with its dismal record of enforcing human rights obligations with respect to Dalits, makes such an analysis all the more vital.

There are two starting points for this report’s analysis: first, an assessment of the nature and extent of human rights violations against Dalits in Nepal helps to outline the profound need for change; and, second, an overview of Nepal’s international binding legal obligations to prevent and provide remedy for such violations grounds the analysis in legal terms. Against this factual and legal backdrop, the report assesses both the substantive rights guarantees contained in the Interim Constitution (primarily in its Part 3), as well as the mechanisms it envisages for the enforcement of such guarantees. On the latter, the report first focuses on one of the key mechanisms for ensuring the protection of Dalit rights in the new constitution—the Constituent Assembly itself.

The report then turns to analyze the impact of the Interim Constitution’s articles on Dalit rights in several critical areas: access to citizenship; non-discrimination and equality; civil and political rights; economic, social, and cultural rights; women’s rights; children’s rights; freedom from torture; and the right to remedy . Each of these areas is analyzed through a four-step process: (1) an outline of Nepal’s relevant legal obligations as set out in the international human rights treaties to which Nepal is a party and therefore bound;[See note 21] (2) a factual overview of the situation of Dalits in Nepal with respect to that particular area; (3) an evaluation of the likely impact of the Interim Constitution’s provisions on Dalit rights; and (4) recommendations for how Nepal’s new constitution might improve on the Interim Constitution to ensure that Nepal’s international obligations are met. The report concludes by briefly addressing the primary challenges Nepal is likely to meet in implementing its constitutional provisions and by assessing the enforcement mechanisms contained within the Interim Constitution.


The Report concluides with the following:
The 2006 pro-democracy movement in Nepal marked the widespread rejection of monarchical rule and of social and economic injustices suffered for centuries by marginalized populations. On the heels of Nepal’s April 2008 elections, it is widely understood that Nepal’s new constitution will play a crucial role in achieving the goals of democracy and social and economic justice and development. The new constitution can also help ensure that Nepal develops a legal framework capable of fulfilling its obligations as a party to several international human rights treaties. The Constituent Assembly must seize this important opportunity to create a transformative constitution that simultaneously fulfills the goals of the pro-democracy movement and faithfully adheres to Nepal’s international human rights obligations.

This report has sought to analyze the Interim Constitution with a view to making recommendations for ensuring Dalit rights and human rights more generally in the new constitution. Political, civic, economic, and social structures have worked for more than 2000 years to oppress and marginalize Dalits in Nepal. On its own, a constitutional provision that prohibits caste discrimination is insufficient to ensure Dalit rights. This report has therefore sought to critically examine provisions on access to citizenship; equality and non-discrimination rights; civil and political rights; economic, social, and cultural rights; women’s rights; children’s rights; and the right to be free from torture and other CID treatment or punishment. In addition, the report noted that due attention to the implementation and enforcement of these provisions is critical to closing the gap between constitutional vision and the social reality that has characterized Nepal’s human rights record to date.

A faithful implementation of these rights serves all populations in Nepal and affirms a fundamental principle of all the treaties to which Nepal is a State Party: that all human beings share the same basic worth and are entitled to a life with dignity. Meeting these obligations will also greatly increase Nepal’s ability to achieve a sustainable peace and ensure its effective political, economic, and social development. As demonstrated throughout this report, a constitution that affirms Nepal’s international human rights obligations can and must serve as the foundation for this crucial endeavor.

Here is the link to the report at Center for Human Rights and Global Justice (CHRGJ) (PDF Version). Citation: Center for Human Rights and Global Justice, Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution (New York: NYU School of Law, 2008).


Notes

1 At the time of writing, the Interim Constitution had been subject to three separate sets of amendments. This
report’s analysis of the Interim Constitution is based on the English translation of the Interim Constitution
prepared by the United Nations Development Programme [UNDP] as of January 2008: The Interim
Constitution of Nepal, 2063 (2007), as amended by the first, second and third amendments, Jan. 2008, available
at
http://www.undp.org.np/constitutionbuilding/constitutionnepal/contitutionfile/Interim_Constitution_bilingu
al.pdf [hereinafter NEPAL IC].
2 See NEPAL IC, supra note 1, at 6 (UNDP introductory remarks). Between 1996 and 2006, Nepal experienced a
civil war known as, the “People’s War.” See U.S. Department of State, Background Note: Nepal,
http://www.state.gov/r/pa/ei/bgn/5283.htm (last visited Apr. 12, 2008); Center for Human Rights and
Global Justice (CHRGJ), The Missing Piece of the Puzzle: Caste Discrimination and the Conflict in Nepal 3 (2005)
[hereinafter, CHRGJ, Missing Piece of the Puzzle]. The conflict began as a popular, armed movement amongst
CPN-Maoist rebels in the country’s western region. Id. at 3. The Maoists’ initial goals were to move Nepal
away from a Hindu kingdom and towards a more secular republic that committed itself to the principles of
gender and caste equality and to addressing centuries-old exploitation of Dalits. Id.
3 CONST. OF THE KINGDOM OF NEPAL 2047 (1990) [hereinafter NEPAL 1990 CONST.].
4 See NEPAL IC, supra note 1, at 6 (UNDP introductory remarks).
5 Id. See also CHAITANYA MISHRA, LOCATING THE CAUSES OF THE MAOIST STRUGGLES: ESSAYS ON THE
SOCIOLOGY OF NEPAL 116 (2007) (noting that the 1990 Constitution “largely remained benign to the structures
of patriarchy and discrimination,” failed to “counteract the…caste-based…broad and sharp political, economic,
and cultural oppression of the Dalits,” and, “from the point of view of almost all Dalits…the post-1990 state
has been undemocratic and oppressive.”).
6 MISHRA, supra note 5, at 113 (noting also that the process had “denied people and their representatives the
authority to prepare and promulgate the Constitution.”). See also International Crisis Group (ICG), Nepal’s
Constitutional Process 2, Asia Report No. 128, Feb. 26, 2007 (“It was King Birendra who promulgated the [1990]
Constitution . . . . Apart from the Maoists, activists representing smaller parties and ethnic or regional
movements complained it was a private deal made by powerful parties and the palace…The [Constitutional
Recommendation Commission – an unelected, advisory body subject to ‘strong palace pressure’] received
submissions from the public, the ‘vast majority’ concerning ethnic, linguistic and religious issues, but it neither
publicly acknowledged nor incorporated them.”). See also Joerg Luther & Domenico Francavilla, Nepal's
Constitutional Transition 2, Department of Public Policy and Public Choice – POLIS, Working Paper No. 93, July
2007, available at http://polis.unipmn.it/pubbl/RePEc/uca/ucapdv/luther93.pdf (noting“[t]he Constitution of
1990 has been criticized, inter alia, because it “a) was not made [by] a constituent assembly but by a ninemember
commission with two royal representatives, b) was considered not completely devoted to democracy,
c) did not declare Nepal a secular state and did not protect minority languages, d) granted no freedom to life,
admitted suspension of the right to constitutional remedies and lacked of fundamental duties, d) realized an
imperfect balance of powers within the form of government.”
7 NEPAL IC, supra note 1, Preamble.
8 Id., Preamble and art. 1. See also MISHRA, supra note 5, at 2 (noting that the Interim Constitution “provides
the legal basis for the conduct of state affairs during [Nepal’s] transitional period”). The Constituent Assembly
elections took place on April 10, 2008. See, e.g., Matthew Rosenberg, Nepal Votes in Historic Election, The
Associated Press, Apr. 10, 2008, available at
http://ap.google.com/article/ALeqM5i7r1pF1wwyRn2PaqU6DsZFzTzODAD8VV5LFG0
9 See KRISHNA BHATTACHAN, TEJ SUNAR & YASSO KANTI BHATTACHAN, CASTE-BASED DISCRIMINATION IN
NEPAL, REGIONAL RESEARCH ON CASTE-BASED DISCRIMINATION IN SOUTH ASIA, INDIAN INSTITUTE OF
DALIT STUDIES 33 (2008) [hereinafter CASTE-BASED DISCRIMINATION IN NEPAL] (explaining that the
Constituent Assembly is expected to take roughly three years to draft the new constitution).
10 See NEPAL IC, supra note 1, at 12 (UNDP introductory remarks stating: “When the Constituent Assembly
prepares a new Constitution it does not have to use any of the rules in the Interim Constitution. But it may
decide that some of those rules are still useful.”).
11 MISHRA, supra note 5, at 138 (“The dismantling of the 1990 [Constitution] . . . –particularly during the last
three eventful, militarized, violent and constitutionally-vacant years–demands the framing of new, popularly
legitimate, democratic and progressive rules, which can govern the state and society within the short run and
open up the constitutional process for peaceful transitions in the future.”).
Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution
55
12 See CHRGJ & Human Rights Watch (HRW), Hidden Apartheid: Caste Discrimination against India’s ‘Untouchables’
(2007) [hereinafter CHRGJ & HRW, Hidden Apartheid]; CHRGJ, Missing Piece of the Puzzle, supra note 2; CHRGJ,
Center for Human Rights and Global Justice Statement Before the Committee Against Torture (Nov. 2005) [hereinafter,
CHRGJ, Statement before the CAT]. See also Smita Narula, Untouchables: The Plight of Dalit Women, Testimony
before the United States Congressional Human Rights Caucus (May 1, 2007), available at
http://www.law.nyu.edu/newscalendars/faculty/documents/narula20may20200720testimony.pdf.
13 See Lawyers National Campaign Against Untouchability (LANCAU), STATUS OF DISTRIBUTION OF
DRINKING WATER & NUTRITIOUS FOOD, STATUS OF TEXT BOOKS & IMPLEMENTATION OF LEGAL
PROVISIONS FOR ELIMINATING THE CRIME OF UNTOUCHABILITY 9 (2006) [hereinafter LANCAU, STATUS OF
DISTRIBUTION] (“One of the core reasons [for] the present conflict is [the] inhuman…social life pattern where
even the 21st century untouchability and other forms of inhuman atrocities are alive.”). See also CHRGJ, Missing
Piece of the Puzzle, supra note 2, at 2.
14 The United Nations Office of the High Commissioner on Human Rights (OHCHR) issued the following
caution with regard to the current transitional period in Nepal: “The issue of social inclusion and equality is a
central consideration of many people’s support for political transition. Unless these concerns are seriously
addressed, there is a danger of deepening social divisions and further violence. Real and sustained change,
including the recognition and enjoyment of rights by traditionally marginalized groups, will be an important
factor in building a stable and sustained democracy during the transition.” U.N. High Commissioner for
Human Rights, Report of the United Nations High Commissioner for Human Rights on the human rights situation and the
activities of her Office, including technical cooperation, in Nepal, ¶ 77, U.N. Doc. A/61/374 (Sept. 22, 2006) [hereinafter
Report of the High Commissioner for Human Rights Sept. 2006].
15 For example, South Africa’s creation of a constitution that is embedded in human rights arguably helped
consolidate peace and stability during its transition. See Eric C. Christiansen, Adjudicating Non-justiciable Rights:
Socio-economic Rights and the South African Constitutional Court, 38 COLUM. HUM. RTS. L. REV. 321, 325 (2007)
(noting that the South African Constitution “…ultimately achieved a goal considered impossible for decades: a
relatively non-violent transition from ‘racial autocracy to a non-racial democracy, by means of a negotiated
transition, the progressive implementation of democracy, and respect for fundamental human rights.’”). See also
U.N. High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the
human rights situation and the activities of her Office, including technical cooperation, in Nepal, ¶ 10, U.N. Doc.
A/HRC/4/97 (Jan. 17, 2007) [hereinafter, Report of the High Commissioner for Human Rights Jan. 2007](“OHCHR
has repeatedly stated that human rights must be central to the [Nepalese] peace process.”). Conversely, critics
of Iraq’s constitutional reform process have warned that the country’s failure to “…use international norms to
craft a rights regime…to address the rights and fears of minorities and vulnerable groups” will hinder the
country’s reconstruction. Makau Mutua, The Iraq Paradox: Minority & Group Rights in a Viable Constitution, 54
BUFF. L. REV. 927, 931 (2006). A new constitution grounded in human rights will also demonstrate Nepal’s
commitment to valuing the inherent dignity of each person. Barbara Bennett Woodhouse, The
Constitutionalization of Children’s Rights: Incorporating Emerging Human Rights into Constitutional Doctrine, 2 U. Pa. J.
Const. L. 1, 44 (Dec. 1999) (“[Recognizing] a right to dignity is an acknowledgement of the intrinsic worth of
human beings: human beings are entitled to be treated as worthy of respect and concern.”).
16 Committee on the Elimination of Racial Discrimination (CERD Committee), 16th Periodic Reports of States
Parties due in 2002, Addendum, Nepal, ¶ 75, U.N. Doc. CERD/C/452/Add.2 (July 30, 2003) [hereinafter, Nepal
Report to the CERD Committee 2003] (stating that “[t]he Dalits of Nepal are the most marginalized and deprived
group of Nepal, which has been subjected to caste-based discrimination from ancient times,” and that
“[d]espite the legal abolition of the caste system in 1963, and the legal prohibitions of caste-based
discrimination, they continue to suffer from attitudinal discrimination in society.”).
17 According to LANCAU, “[n]o ruling party or the opposing party [has] ever raised the concern of [the lack
of] implementation of these global [human rights] requirements.” LANCAU, STATUS OF DISTRIBUTION, supra
note 13, at 17.
18 NEPAL 1990 CONST., supra note 3, at art. 11(2)–(4).
19 For example, the 1990 Constitution explicitly permitted discrimination against Dalits in religious contexts.
See all CHRGJ, Missing Piece of the Puzzle, supra note 2, at 7 (noting that Article 19 of the 1990 Constitution
provided that “Every person shall have the freedom to profess and practise his own religion as handed down to
him from ancient times having due regard to traditional practices.”); NEPAL 1990 CONST., supra note 3, at art.
19(1).
20 See infra Section III.H.
Center for Human Rights and Global Justice
56
21 As understood from Article 38 of the Statute of the International Court of Justice, Nepal’s international
obligations towards Dalits arise from a variety of sources, including, international treaties, customary
international law, jus cogens norms, general principles of law, and, as subsidiary sources, judicial decisions, and
the teachings of highly qualified publicists. Statute of the International Court of Justice art. 38, June 26, 1945,
59 Stat. 1060. While recognizing the importance of all these sources of law, our analysis will focus primarily on
Nepal’s obligations arising from the international human rights treaties it has ratified.

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