Political freedoms without sufficient economic prosperity are myths and fantasies. Therefore, the new constitution must address the indivisibility, interdependence and interconnectedness of all human rights. There should be no compromise on these issues among the political parties.
Never before have so many people in the world been aware that they are individual holders of fundamental rights, and it is this awareness and the general recognition of such rights that characterise the dawn of the 21st century. Today human rights and fundamental freedoms are continually being shaped by overlapping trends in trade, technology, globalisation, urbanisation, and the resultant break down of communities and cultures. These factors have prompted the creation of an entirely new dimension in human rights and freedoms based on personal autonomy, dynamics and self-regulation. Supported by rapid advances in information and communications technology, these trends have meant that parts of the world such as Asia, Africa, and Central and Latin America have been drawn into the global economy at a fast rate. In the new global society the individual may for the first time identify himself with regional, trans-national and international entities and associations be they religious, business, ethnic or cybernetic. Such an individual may at any time choose to link to such entities or associations thus expanding his identity beyond the natural boundaries of his birthplace.
In recent history, Nepal has passed through a series of extreme political phases and experiences. Despotic Rana rule gave way to a single party Panchayat system under a monarch in 1951. In 1990 a popular revolution brought the first shoots of democracy, but this was followed by fifteen years of civil war resulting in the abolition of monarchy and the birth of one of the world’s newest republics. The country’s political processes evolved around feudal and paternalistic hubs leading to centuries of domination by a small ruling class. More than a century of rule by an oligarchic Rana autocracy saw the consolidation of power through the suppression of internal dissent, and the exploitation of the nation’s wealth for family enrichment. Dissent was ruthlessly controlled while the population was effectively shielded against all modernising and progressive external influences. The people had no control over their own destiny. The wishes of the Ranas were supreme, and people were denied all political and civil liberties. Anything approaching today’s concept of freedom and human rights was totally unknown in Nepal.
The democratic movement launched by the Nepali 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 economic development that might improve people’s lives. In 1959 a second Constitution was formulated and the first general election held. New directions were set and hopes aroused. The constitution was not only a full-fledged one but also the first truly democratic one. It guaranteed fundamental rights of the people of Nepal with a view to establishing a welfare state. Without discrimination on grounds of race, religion, gender, 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 a vested interest in the old bureaucracy and from feudal elements, together with in-fighting among the political parties meant constitutional failure. Mass discontent and disillusionment resulted from the growing gap between public expectations and the limited resources made available to the 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 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 with regard 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, with sovereignty of the people recognised, a constitutional monarchy, and guaranteed personal freedom. People’s political rights and civil liberties were guaranteed for almost the first time, allowing people 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 provisions in their constitutions or other legislation relating to fundamental rights that reflect the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR). Nepal’s Constitution of 1990 also provided for most basic human rights as enshrined in such 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 these fundamental rights. Such rights are essential in providing for Nepali citizens an autonomous personality by which they are able to participate freely in public life with their rightful claim to universality, a “realization of their homo politicus status”. Despite a guarantee that civil and political rights were fundamental human rights, the constitution failed to classify economic and social rights also as being fundamental. Instead, they were placed under ‘Directive Principles and Policies of the State’, making them unjusticiable and therefore unenforceable in any court until progressively realised and implemented by subsequent legislation as national resources and means permitted.
Most of these constitutional provisions were in accordance with concepts outlined in key international human rights instruments, to the drawing up of which Nepal had been a party. 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. The governments have, however, been much too slow in fulfilling these obligations. Without their effective acceptance and the imposition of national standards, the obligations have remained largely unrealized. The ten year long Maoist insurgency was painful, costly, and devastating for Nepal. It weakened the country economically, took militarism to unprecedented levels, and caused much misery and human cost. Emergency, insurgency, instability and lack of credible government advanced the human rights crisis. If individual autonomy within society is considered 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. Human security has fallen to an all-time low. 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.
Today Nepal stands at a crossroad in re-defining its political, social and economic structure and for years it has been involved in drafting a new constitution. Human rights and freedoms, including the rule of law, can be protected only when there is a legal system that is able to respond to problems in a fair, non-discriminatory and effective manner. Nepal has already ratified all major international human rights instruments. In the Constitution of 1990 there was provision for all the major fundamental human rights including abolition of the death penalty. The Interim Constitution of 2007 went even further by providing rights to environment and health, women’s rights, and a right to social justice. However, those are past constitutions. Today, throughout the world fundamental human rights are accepted as being indivisible, interdependent and interconnected, embracing civil and political rights as well as economic, social and cultural rights including the right to development. The forthcoming constitution needs, therefore, to move beyond the constitutional provisions of the past by incorporating fundamental human rights including full economic, social and cultural rights in addition to civil and political rights. The past constitutions over-emphasised the civil and political while dumping the economic, social and cultural under the heading of ‘Directive principles and Policies of the State’ thus making them unenforceable in a court of law. A hungry stomach cannot serve a nation: a hungry stomach cannot participate in the 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, the new constitution must aim to fulfil those basic needs and to make them enforceable in a court of law. Political freedoms without sufficient economic prosperity are myths and fantasies. Therefore, the new constitution must address the indivisibility, interdependence and interconnectedness of all human rights. There should be no compromise on these issues among the political parties. Their utmost duty is to ensure that the new constitution provides for full fundamental rights including 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 and right to development for all citizens.
Human rights, as expressed in national constitutions and in laws, directly influence government agencies, as well as institutions and individuals, in the shaping of policies and practices. However, a catalogue of rights and freedoms expressed in the constitution, no matter how extensive, is insufficient unless those rights and freedoms are supported by strong liberal legislation, firm enforcement mechanisms, and by an independent judiciary able to interpret their provisions. At the same time, that judiciary cannot be independent unless the constitution provides for a system of fairness in the appointment of its judges and they are given adequate resources. A human rights culture needs to be established at every level, both within the political parties and within civil society. To strengthen the human rights system and to promote fundamental constitutional rights there needs to be a system of full accountability and transparency at every level of governance – and that includes within the police and security forces and within the everyday administration of government.