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  Fundamental rights in the new constitution  
 

DR RAM SHARAN MAHAT

The Constituent Assembly (CA) draft report on Fundamental Rights and the Directive Principles and Policies of the State has been presented and discussed in the full house. In view of the relative importance of the Rights in comparison to the Directive Principles, which are only moral and not legal obligations of the state, it is natural that the former has attracted more attention.

NEWER CONCEPTS

The clamor for “rights” from various communities and interest groups is very high in Nepal at present and has been growing stronger by the day. As Pramod Mishra writes in his column, these are noisy times in the quiet land of mystical yeti when people are struggling and arguing for rights with dissection of words and concepts. Various parties and right groups are competing with one another through one-upmanship in introducing newer concepts, citing doctrines, international conventions and practices elsewhere. This phenomenon is natural in a period of historic transition when aspirations, having remained dormant and suppressed in the past, come to surface and with organized voice take the shape of political demands.

Against this backdrop, the long list of 31 fundamental rights proposed in the constitution is not unexpected. The rights proposed in the draft document include, not only traditionally accepted rights commonly found in liberal democracies, but also economic, environmental and other rights. Economic rights such as right to employment, food, housing, education, health, and quality environment are particularly noteworthy and represent an advancement compared to those provided in other constitutions of developing countries in similar situation including those in South Asia.

ENFORCEABILITY QUESTION

I recall my conversation with B P Koirala in the late ‘70s, when the country was in the midst of a national referendum and debating the future constitution. He used to say a constitution in itself with a long list of fundamental rights does not mean anything unless and until the state creates required conditions for their safeguard. He used to cite the examples of Great Britain and the Soviet Union. The latter had one of the longest constitutions with a comprehensive charter of rights, but offered no political freedom in practice. On the contrary, Britain does not possess even a written constitution, but has the longest history of a democratic political system.

BP Koirala’s observation is very pertinent today. It is not important what is written in the constitution. The important question is whether the state has the willingness and capacity to enforce them. In my view there are three critical issues which will determine our ability to implement the fundamental rights proposed in the new constitution.

JUDICIAL RECOURSE

The foundation of any democratic state is based on the principle of supremacy of the individual and popular sovereignty. The state often acts as an obstacle in the way of implementing this philosophy. The first violator of citizen’s liberty is the state. From the time of Magna Carta in 1215 to the dismantling of the Iron Curtain -- the citizens have fought with the state for freedom. The Glorious Revolution, the French Revolution and the American War of Independence were epoch-making events in the annals of history of human freedom, when the state was forced to cede its arbitrary authority over individual freedom. The genesis of fundamental rights, which has the origin in the British and American Bill of Rights and French declaration of the Rights of Man were the outcome of these events. In our own home situation, the state power was forced to accept the principles of individual supremacy and popular sovereignty following the April Uprising. The 1950 anti-Rana Revolution and the 1990 Janaandolan were other historic events when the state was forced to give up its perverse power over human liberty.

Given the state’s proclivity to encroach upon individual rights, the first prerequisite to safeguard civil rights is the institution of an independent judiciary. Without such an authority, free from the shadow of executive and legislature, the constitutional rights run the risk of being constantly violated. When rights are denied, the citizens must have the right to judicial recourse as constitutional remedy. The judiciary through various tools, in the form of writs at its arsenal, will be able to enforce such rights. Therefore, the provision of fundamental rights should be seen in relation to other aspects of the constitution, particularly the independence accorded to judiciary, to ensure its enforcement. In this context, some of the controversial provisions proposed in the CA draft report on Judicial Structure by majority votes, with a view to make the judges subservient to the wishes of executive and legislative branches, is hardly reassuring. Outgoing Chief Justice Min Bahadur Rayamajhi has lamented that the loss of the power of judicial review of the apex court does not augur well, since the Supreme Court cannot safeguard the civil liberty in its absence. He has suggested pulling out all stops to uphold judicial independence.

THREAT OF NON-STATE ACTORS

The second threat to fundamental rights of the citizens in the present day Nepal is the coercive and intimidatory power of the non-state actors. The paramilitary and other armed groups have been committing crimes, indulging in vandalism, looting private property, and extorting money with impunity. Such incidents are happening practically every day. Even when these lines are being written, reports of a school bus being vandalized, massive extortion of food grains from paddy fields, encroachment of forest land, and forcible occupation of private buildings are pouring in from the news media. These are assaults on basic rights relating to life, liberty and property. As long as armed and organized militant forces protected by political parties and other forces remain, individual rights will continue to be violated. Therefore, dissolution of such armed groups and handover of illegal arms is another prerequisite to make any provision of fundamental rights in the new constitution meaningful.

ECONOMIC RIGHTS

The third issue relates to the state’s ability to protect rights relating to employment, education, health, food, housing and clean environment. These are economic rights to ensure basic human wellbeing. For the state to possess sufficient financial and revenue strength to implement them, appropriate economic policy is required to generate growth and economic opportunities, tap the country’s potential and unleash creative energy and ensure social justice. There is link between economic freedom and prosperity. Freer economy leads to more income, poverty reduction and environmental protection. Experience worldwide shows that wealth can be created and expanded, prosperity shared, and problems of hunger, illiteracy, disease and unemployment addressed under right economic environment and sustained peace.

In this respect, despite the encouraging policy reforms legislated in the past, the overall situation at present is hardly conducive. Reports published by international agencies show that Nepal is far behind many developing countries in economic freedom and the cost of doing business is high. Nepal’s ranking in the World Bank report of Doing Business Index is 137th among 183 countries, worse than any other country in South Asia except Bhutan. This index ranks the individual economies from the point of view of regulatory environment based on ten indicators including entry, exit, credit, tax payment, and labor related matters. Similarly Nepal with 53.2 points has been placed under “mostly unfree” category in the Economic Freedom Index prepared by the Heritage Foundation and the Wall Street Journal. These could be wake up calls for Nepal’s political forces, actors and policy makers

 
Published on 2009-12-07 00:40:52
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Fundamental Rights In The New Constitution
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Again, a well drafted opinion piece from someone whom I assume has been a student of political economic history. From the standpoint of classical economic thought, the composition made logical judgment until the economics-rights juxtaposition and referenced WSJ and Heritage Foundation as evidentiary support; please note both of these institutions maintain conservative foundations and make no pretense of being reactionary for several generations (see William H. Grimes, 1951 editorial); Grimes vo [more]
  - KNP
Bingo Khadkaji! You´re on the money with your analysis. All this rhetoric from the mouths of these fake ´democrats´ is an insult to our intelligence. I hope Nepali ppl rise up to expose the hollowness of the writing of the likes of this Mahat. Where was all this ´democratic´ history and thought when they themselves were in power, and the Maoists slowly gaining ground? Why did they not put it to action when there was still time?



It really [more]
  - SN
After reading Dr. Mahat´s Fundamental rights in the new constitution" i could not stop thinking how people over the course of years have used and abused B.P. Koirala´s sayings to prove their points. First, i tried matching NC´s last two decades of achievements under GPK, where Dr. Mahat and the likes, had field day with BP´s vision for the nation and compassion for the poor. Had Mahat and others fulfilled even 25 percent of what B.P´s vision for the nation, we woul [more]
  - Rajendra Khadka
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