Justiciability of Economic, Social and Cultural Rights’ Judgements in Nepal
Background:
The Universal Declaration of Human Rights (UDHR) comprises all sorts of human rights variables; however, it succeeded to create only moral obligation so that in later days such rights are structured in legal framework at international level. The structured legal framework comes in major human rights instruments, most importantly International Covenant on Economic Social and Cultural Rights (ICESCR) which is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and enforced from January 3, 1976. The ICESCR, then became a part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
In order to domesticate it, Nepal Nepal
In case of the provisions of a treaty, to which Nepal or Government of Nepal is a party upon its ratification accession, acceptance or approval by the Parliament, inconsistent with the provisions of prevailing laws, the inconsistent provision of the law shall be void for the purpose of that treaty, and the provisions of the treaty shall be enforceable as good as Nepalese laws.
It gives Nepal Kingdom of Nepal
The existing Interim Constitution does not become fabulous in itself. Several other sources contribute further inputs on its betterment. Regarding Political, Economic and Social Transformation and Conflict Management, the Comprehensive Peace Accord, 2006 [4] provides some provisions. Under Art.3 of the Accord, both sides - Government of Nepal (GON) and The Communist Party of Nepal (Maoist)- agreed to adopt the following policies and programs for the political, economic and social transformation and to manage the existing conflict in the country in a positive manner. In the same manner, under Article 3(1) both sides have agreed to adopt a policy to establish the rights of all citizens to education, health, housing, employment and food sovereignty'[5] which are the great agendas from ESC rights perspectives.
All the provisions mentioned in the Peace Accord, have sought prompt realization from the State’s side on the one hand and The Government of Nepal (GON) and The Communist Party of Nepal (Maoist) have agreed to ensure several socio-economic rights through new enactments and activities.
Judicial Activism for ESC Rights:
Socio-economic rights can be argued into those that relate to three sets of duties: Provision- imposing a duty on the state to pay for or provide a service directly; regulation – modifying the regulatory environment by imposing (or removing) state-enforced duties on providers; and obligation – modifying the provider-recipient relationship by imposing (or removing) a duty on the provider that the recipient herself/himself must enforce. The level of state intervention and investment required never disappears, but it certainly declines as we move from direct provision, to regulation, to private enforcement of horizontal obligations[6]. In context to Nepal , since several decades with the practice of separation of power, check and balance approach and human rights activism in Nepal Nepal
By acknowledging all the facts and realities of the Nepalese society, the different sectors of civil society including judges and lawyers are satisfactorily capable to take and deal with the issues of discrimination and ESC rights.
Right to Food:
The right to food is a human right. It is the right of all human beings to live in dignity, free from hunger, food insecurity and malnutrition. The food sovereignty is protected under international human rights and humanitarian law and the correlated state obligations are equally well-established under international law. It is noteworthy that the right to food is recognized in the Interim Nepalese Constitution in Art.18(3)[10]. From the jurisprudential notion, the term ‘food sovereignty’ covers the right-duty relation. The Supreme Court of Nepal has also largely interpreted in the light of right to adequate food and free from hunger. There are various landmark cases in which the Supreme Court of Nepal evolved new notion regarding the term food sovereignty. Like in the case of Bajuddin Minhya and Others v GON, Prime Minister and the Council of Ministers[11] which was about the destruction of crops by wild animals from Koshi Tappu Wildlife Reserve on which the court explained food sovereignty, right to food and right against starvation. Similarly, in the case of Madhav Kumar Basnet v Prime Minister, Girija Prasad Koirala and Others[12] concerning starvation, court acknowledged state responsibility on protection of life . On the other case of Raju Prasad Chapagain and Others representing Pro-Public v HMG, Ministry of Health and Others[13]; the petitioners filed the case in relation to the production of substituting baby food. Since the promulgation of the Mother’s Milk Substituting Matter (Control of Sale, Distribution) Act 2049, the government had not constituted a committee in regard to supervision and monitoring of production, sale and distribution of baby food aimed to substitute mother’s milk. The petitioners also drew the attention of the court to Art 11 of the 1990 Constitution which prescribed special protective measures for children, Art 26( 7)(8 ) which provided for special measures for the protection of the health of the women and children. The Supreme Court issued mandamus in the name of Ministry of Health to appoint inspector in accordance with Section 13 of Mother’s Milk Substituting Matter (Control of Sale, Distribution) Act 2049. The Court also drew the attention of the Ministry for the constitution of the Committee as provided in Sec. 4 of the Act and implementing the Act. In order to enforce the Supreme Court’s order, the Mother’s Milk Substituting Matter (Control of Sale, Distribution) Act 2049 was effectively implemented and some measures had been taken to make committee active with pursuant to Sect. 4 of the Act. However, the progressive report of the second phase of the order has not yet been submitted to the Monitoring and Inspection Section of the Supreme Court.
Similarly, in the case of Prakash Mani Sharma and Others[14], the petitioners addressed that mass starvation seemed to occur in several districts of the hills in Mid and Far Western Nepal. The writ contained that food, shelter, clothing, education, health and employment are basic needs of human life on which state should be liable for its responsibility. Thus, among the various needs, the right to food is the utmost basic need acknowledged by Art. 18(3) of the Interim Constitution, 2007 which guarantees the right to food sovereignty to every citizen of Nepal
The petitioners then cited the report that was published in the bulletin of World Food Program (WFP)- Food Security Bulletin- 20, which states that among the 75 districts of Nepal
In this case the Division Bench of the Supreme Court on 2008-09-25 (2065/6/9) issued an interim order in which it, citing the report of WFP, stated that the drought districts of Kalikot, Humla, Mugu, Dolpa, Bajura, Achham, Dailekh, Darchula, Baitadi, Dadeldhura, Rukum and Jajrakot seem to be affected by food scarcity. It has been said that more than three million people are facing starvation.
Every citizen’s right to live is a fundamental right. The legal counsels representing the Ministry of Agriculture and the Nepal Food Corporation submitted to the court that there is sufficient food stock but it has not been possible to transport food in those districts. Man cannot live without food. And unless the food scarcity is addressed immediately, irreparable loss is imminent, and later the remedy will be like availing doctor after the death of the patient. And therefore, an interlocutory order is hereby issued in the name of respondents to immediately transport and supply foodstuff in those districts also taking note of the fast approaching great Dashain festival of Nepali.
Following the Supreme Court’s order, Home Ministry instructed Nepal Food Corporation (NFC) to supply food to the affected districts. The NFC made the budget of thirty – eight crore and fifty - seven million cost price of the total quantity of rice. Instantly, NFC supplied and made strategy to supply food to the dipo but not every village development committee or ward committee. The government introduced to supply food (only rice) in the quota basis. The government, then, realized the problem of remote districts and started the hierarchical strategic relation in between Ministry of Finance, National Planning Commission and Nepal Food Corporation in order to fill up the shortages of food. Nepal Food Corporation started to supply food in fifty percent discount rate through helicopter to remote areas where markets, roads and transport facilities are not available.
Right to Health:
The right to health is an inclusive right. It is a fundamental part of our human rights and of our understanding of a life in dignity[15]. Regardless of our age, gender, socio-economic or ethnic background, we consider our health to be our most basic and essential asset[16]. The right to the enjoyment of the highest attainable standard of physical and mental health, to give it its full name, is not new. Internationally, it was first articulated in the 1946 Constitution of the World Health Organization (WHO), whose preamble defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The preamble further states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.
The Universal Declaration of Human Rights (UDHR), 1948 also mentioned health as part of the right to an adequate standard of living[17]. The right to health was again recognized as a human right in the International Covenant of Economic Social and Cultural Rights (ICESCR), 1966[18]. It is noteworthy that the Interim Constitution of Nepal, 2007 has also recognized the right to free basic health services as well as the right of women reproductive health and the right of children to ‘care, basic health and social security’ [19]. It is also made as a part of state obligation and distinctly mentioned in Part IV, Directive Principles of the Interim Constitution, 2007.
In the same path to the development of health sectors, the Supreme Court of Nepal has also moved to the novel and landmark steps. In the case, Dilbahadur Bishwakarma v GON, PM and Council of Ministers[20], the petitioners filed a case against social ill practice, known as ‘Chaupadi Pratha’ existed in the Far Western Development Region of Nepal. During the menstruation period, women kept out of the house like – shed and so on which were unhygienic and directly affect to women’s health.
The joint bench of the Supreme Court issued the following directive order:
i. Government of Nepal
ii. Ministry of Health should form a committee including medical officer and conduct a research in those districts of psychological effect on women and children. The committee should prepare a report and submit to the Ministry of Health and Supreme Court.
iii. Local self governance committees should take initiation for awareness campaign about the consequences of Chaupaudi System.
iv. GON, Ministry of Women, Children and Social Welfare Council should make guidelines within 3 months and informed to the Supreme Court as well.
v. The petitioners were the member of NGO’s so that you should also take initiation in making laws and other directives as there was no parliament on the decision.
In order to follow up the directives, the concerned ministries and the committee submitted a report to the GON and the Supreme Court on 2064 (2007). Henceforth, the alleviation of this practice is yet to see effectively in social life.
Similarly, in Prakash Mani Sharma and Others v GON, Office of Prime Minister and Council of Ministers and Others[21] concerning uterus-prolapsed, the petitioner petitioned that prime productive age women were suffering from the problem of uterus prolapsed specially in the hilly districts. From the research work done by Motherhood Network Federation, 2005 in ten districts namely Dhankuta, Siraha, Bara, Nuwakot, Kapilvastu, Baglung, Banke, Surkhet, Kanchanpur and Baitadi, it was found that 4,518 women came to the health camps and from among these women, 415 suffered from the problem of uterus prolapsed. The other report from the health camp conducted by Nepal Family Planning Association, 1999 (2056) in Doti and Acham districts in 1999 wherein, 3,000 women came to the health camps and out of the total women 2,000 women suffering from reproductive problems . In which 25% suffered from the problem of uterus prolapsed. It also brought serious information that the problem of uterus prolapsed was 30% in Terai and 70% in the hilly districts. With such evidence, in 2008, Prakashmani Sharma and others (Pro-public) petitioned the court via PIL in order to have effective order for the protection of the rights of women suffering from the problem of uterus prolapsed. In this case, the court had not only addressed the right to health of women from the sight of feminist jurisprudence but also in wider context that reproductive health related to women’s issue is an issue of all human beings. The court had progressive realization on the recognition of right to reproductive health is not sufficient to write in black letters as a fundamental right in the constitution, however, needed the physical facilities for the enjoyment of this right. Thus, the Supreme Court issued a directive order in the name of the Prime Minister and the Office of the Council of Ministers to hold consultation as per necessary with health related experts and representatives of the society and to draft a Bill and submit it before the Legislature-Parliament as soon as possible. It also issued an order of mandamus in the name of the Ministry of Women, Children and Social Welfare and Ministry of Population and Health to prepare special work plans and to provide free consultation, treatment, health services and facilities to the aggrieved women and to set up various health centres and to initiate effective programs with the aim of raising public awareness on problems relating to reproductive health of women and the problem of uterus prolapsed.
With the directive order of Supreme Court, the Government of Nepal, Ministry of Health and Population, Family Health Division promulgated the Procedural Regulation Relating to Treatment and Surgical of Uterus Prolapsed, 2008 (First amendment, 2009) . The Regulation clearly mentions that the screening camp has to deliver the primary health services to more than two hundred women. In the case of surgery, the Government of Nepal will provide Rs.fifteen thousand, thirteen thousand and twelve thousand to the women of hilly region, mountain region and terai region accordingly. The transportation cost will also provide to the women of hilly region, mountain region and terai region as fifteen hundred, one thousand and five hundred accordingly. There are fifteen government hospitals in five development regions which are carrying out the responsibility. In 2009/2010 the government makes the target for providing services to 18000 women. However, only 10.954 women have got treatment. Besides the government initiation, Adventist Development and Relief Agency (ADRA) Nepal is also launching activities under the finance of the United Nations Population Fund (UNFPA). Then the ADRA Nepal is supporting to the NGOs at district level from which 1237 women are benefitted at all. In the same way, Sagarmatha Foundation, Himal Foundation and Care Nepal are working as supportive partner. However, there is no specific agent of monitoring and supervision of these private initiations. It is appreciable to know that supportive partners and private organizations have to work under the government co-ordination and co-operation. If the government and private organizations can go hand in hand, it is more sustainable and target women will be benefitted. In order to achieve the objective, the government has to focus on both preventive and curative aspect of the problem[22].
In the case, right against sexual harassment in the working places like – cabin, dance restaurant and massage parlour by Prakashmani Sharma and others vs GON, Ministry of Women, Children and Social Welfare and others[23], several constitutive elements of Women’s human right law has raised. The petitioners advocated for the psychological and safety of health of the working women in such places.
The joint bench of the Supreme Court issued an order to constitute a committee to develop procedural guidelines for the prevention of sexual harassment to the working women at workplaces like dance bar, dance restaurants and massage parlour in the name of the Ministry of Women, Children and Social Welfare on 20 November, 2006 (2063-8-4).
For the enforcement of Supreme Court’s order, the Ministry of Women, Children and Social welfare constituted a committee. The Prime Minister and Council of ministers’ office had corresponded a letter to the Ministry of Tourism and Civil Aviation, Ministry of Women, Children and Social Welfare and Police Headquarter in order to follow the order and procedural guidelines. However, neither of above mentioned ministries had evaluated and monitored the impact of introducing such policies.
The other land mark case of Prakashmani Sharma v HMG, Ministry of Women, Children and Social Welfare and Others[24], under right to health which relates to maternity leave. The petitioners advocated in regard to reproductory role of women which is associated with several segments of the development of society. Special measures were required for the protection of maternity. Moreover, working women and employees should be observed and pay more attention for safe motherhood.
The petitioners cited various laws relating to employees and working women which fix different time period for maternity leave. For instance, the Civil Service Act 1993 (2050), Rules 1992 (2049), Local Self Government Rules, 1999(2056), Nepal Health Service Rules, 1998 (2055). Appeal Court and District Judges ( Salary and other condition of Service ) Act,1991 (2048), which provide for 60 days maternity leave, while the Labor Rules 2050 (1993) provide leave for 52 days, Tea Estate Labour Rules 2050 (1993) and Royal Nepal Airlines Corporation Employees Condition of Service Rules 2031(1984) provide for 45 days leave. Though, the constitution provided special provision for the protection of rights of women and children. Then, petitioners justified an unscientific and against the provision of CEDAW, CRC and ILO Conventions. Concerning maternity protection as those instruments mentioned 14 week’s maternity leave for women employees.
The special bench of the Supreme Court issued a directive order on 11 September, 2003 (2060-5-25) in the name of GON, Ministry of Health to make necessary arrangement. It, therefore, issued a directive order in the name of the government to make necessary arrangements for the protection of maternity by fixing minimum period of leave for employees and developing standard for the same, by taking note of the legal provisions for the protection of maternity and international instrument for the protection of maternity and child health.
The government had corresponded letters for execution of Supreme Court’s order to the concerned ministries. In response to the letter on 31 July 2007 (2064-4-15) Ministry of Labour and transport informed the exercise for amendment of the laws was going on. The ministry had not informed the completion of task to the date of information got by the paper writer on 4.08.2010.
Right to Education:
Education is a fundamental human right and essential for the exercise of all other human rights. It promotes individual freedom and empowerment and yields important development benefits[25]. The right to education was firstly articulated in the Universal Declaration of Human Rights, 1948[26] and then the International Covenant on Economic, Social and Cultural Rights, 1966[27]. The 1960 UNESCO Convention against Discrimination in Education also defines education in Article 1(2) as: "all types and levels of education, (including) access to education, the standard and quality of education, and the conditions under which it is given."
In the same way, the broader meaning of education has been recognized in Article 1(a) of UNESCO's 1974 Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms. The article states that education implies:"the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capabilities, attitudes, aptitudes and knowledge."
Following the international development, the Supreme Court of Nepal has also taken step in acknowledging the basic human rights of Nepalese citizens. In the case of Som Prasad Paneru v GON, PM and Council of Ministers[28] , the petitioner filed a case in regard to young girls subjugated as bonded labour, called as ‘kamalari custom’ in Mid- West and Far- West of Nepal on the first day of Magh (ie. Mid January) in the Tharu Community. Thus, petitioner claimed that numerous children were depriving from education, health and other overall development of human beings. Those rights were guaranteed by CRC and other several human rights instruments and Art. 26 of the 1990 Constitution itself.
The joint bench of Supreme Court then issued mandamus and directive order to the GON, Ministry of Education on 10 September 2006 (2063-5-25) to develop a curriculum exploring the basic information of human rights at school level.
Then the GON sent a letter to the concerned ministries for the application of Kamaiya Labour (Prohibited) Act, 2001 (2058) on 18 September 2007 (2064-6-1). The Curriculum Development Department made human rights based course to study at primary, secondary and higher- secondary level. Ministry of Women, Children and Social Welfare also started awareness programme in order to alleviate ‘Kamaiya Custom’. However, research seems to be done in order to find out the effectiveness of execution.
In the same way, there are several other cases relating to right to education like; Dilbahadur Bishwakarma and Others v Cabinet Secretariat and Others[29] where the petitioners challenged discrimination in education on the basis of caste on the clause 14.8.6 of Tindhara Sanskrit Hostel’s By-Rule which was against the Art. 11 of the Constituion. Thus, the Supreme Court declared the said clause ultra virus. Following the Supreme Court’s decision, Sanskrit Pathsala’s By- Rule has amended and opens access to hostel for non-brahmin student too. It is notable that the non-brahmin students were allowed to enroll but deprived from hostel of the school before 2008(2065). The decision of the case brought additional responsibility to the Sanskrit Pathsala’s administration. Now, two dalits and four janajatis (including female student – Lalita Gamal) are studying and staying in the Sanskrit Pathsala’s hostel. It seems to be a great achievement in the educational system of Nepal. However, there is not any reservation system for marginalized students in the hostel excluding regional quota (reservation) system. It is noted that only access to shelter is not enough, certainty of having shelter for marginalized students need to make effective with the concept of positive discrimination[30]. The other case, Mohan Kumar Karna and Others v Ministry of Education and Sports[31], petitioned for education free up to secondary level as per the Constitution and Education Rules 2049. Next case, Pradhwosh Chhetri and Others v Office of the Council of Ministers[32] which relates to the grant of quota (reservation) to candidates belong marginalized communities to study graduate programmes in medicine. The case petitioned by Sudarshan Subedi and Others v GON, Council of Ministers and Others[33]; relates to the free education for disable persons in public schools, universities and training centers in which the Supreme Court issued mandamus & prohibition.
Among these cases relating to right to education and right to equality and social justice, Department for Monitoring and Evaluation for the Execution of the Cases is succeed to follow up the case of Dilbahadur Bishwakarma v Cabinet Secretariat and others till the decision taken by Ministry of Sports and Education for the amendment of Act. The remaining development has not been updated by the department. Rest of the cases are in the shadow from evaluation and monitoring by the authority of the government.
Epilogue
The glimpse of aforementioned cases reflects that the Nepalese judiciary is progressing with realistic thought, though; the Supreme Court has neither the full authority to prescribe law nor the jurisdiction to execute the verdict. Whatever, the jurisdiction of Supreme Court is just limited to interpret the black letter words so that the winner of the case can not have the absolute taste of the result.
The problem existing from several decades seems to be acknowledged by the Supreme Court and other state agents reached to establish the department named as “Department for Monitoring and Evaluation for the Execution of the Cases” which is registered in accordance with Article 107(2) (ie. Cases relating to Public Interest Litigation) of the Constitution at 2005/2006 (2062/2063). The paper writer found that the department is succeed to keep only the first phase of record of the implementation of cases and somewhere failing, in following up to the end of the cases. As there is no proper categorization of the cases in accordance with the issues, it fails in giving priority to the urgent need of implementation.
From evaluation of the aforementioned cases, the state seems to be more successful in amending laws, and introducing new laws as per the interpretation of the Supreme Court. The fundamental necessity of human beings ie. Economic, Social and Cultural Rights seems to fall under the shadow of state obligation. The prompt and effective execution should hold of those cases whether that is of majority needs or the minority needs must address immediately. However, it is fact that either the Department for Monitoring and Evaluation or any other associate department of concerned ministry is succeeding to follow up the implementation and keep record for transparency of good governance system. For instance, in the right to food and compensation right case of Bajudhin Minya, it has not been recorded elsewhere about the compensation received by the victims. Similarly, the latest development of the Ministry of Health charged by Prakashmani Sharma and others of Utreus Prolapsed case also has not been updated in the Department of Monitoring and Evaluation for the Execution of the Supreme Court’s order.
The paper writer realizes that there must be effective Central Department for over all evaluation of the implementation of the cases. And associating agents or the departments must update its progress to the central department periodically. The central department also must have effective guidelines and procedural mechanism to look overall act of the state agents in relation to the implementation of the cases. The other state agents must have the chain of working relation with this Department of Monitoring and Evaluation for the Execution of Cases.
The academicians, researchers, judges, lawyers and so on also must give priority to conduct research on the execution part of the cases rather than just interpreting the words of the constitution, laws and the conventions and briefing the details of the cases.
[1] Sharma Laxmi, Research Assistant, Norwegian Centre for Human Rights, University of Oslo, 28.10.2010
[2] The Constitution of the Kingdom of Nepal, 1990, Part-III and Part-IV His Majesty of the Government of Nepal, Ministry of Law, Justice and parliamentary Affairs, Law Book Management Committee, Kathmandu, Nepal, (English version), 6-7.
[3] The Interim Constitution of Nepal
[4] A Comprehensive Peace Accord was signed between Mr. Girija Prasad Koirala, Prime Minister
of Nepal and Mr. Prachanda, the President of Communist Party of Nepal
[5]Ibid, 3.
[6] Daniel M. Brinks & Varun Gauri, Courting Social Justice: Judicial Enforcement of Social & Economic Rights in the Developing World; edt. Varun Gauri & Daniel M. Brinks, Cambridge University
[7] Wickeri Elisabeth, No Justice, No Peace:Coflict, ScoEconomic Rhts, AndT N Contitution In Nepal
[8] U.N. Econ.& Soc. Council (ECOSOC), Comm. On Econ., Soc., and Cultural Right, Consideration of Reports Submitted by States Parties Under Articles 16 and 1, of the Covenant: Nepal
[9] Ibid.
[10] Interim Constitution of Nepal
[11] Writ No: WO-0338 of the year 2064 decision dated 2065/11/5/2
[14] Writ No: Wo-149 of the 2065, decision dated September 15, 2008
[15] http://www.ohchr.org/Documents/Publications/Factsheet31.pdf, visited on dated 21.08.2010
[16] ibid
[17] Universal Declaration of Human Rights, 1948, art.25.
[18] International Covenant of Economic Social and Cultural Rights, 1966, art.12.
[19] See articles 16(2), 20(2) and 22(2) of the Interim Consitution,2007.
[21] Writ No: WO- 0230 of the year 2064.
[22] Information gathered from Dr. Sushila Bhaidawa, Coordinating officer, Uterus Prolapsed Division, Ministry of Health and Po pulation, Family Health Division, Teku, Nepal on 24.10.2010.
[23] Writ No: WO - 2822of the year 2062, decision dated Nov 28, 2008.
[25] http://www.unesco.org/en/right-to-education. visited on 24.07.2010
[26] See Article 26, Universal Declaration of Human Right, 1948.
[27] See Article 14, International Covenant on Economic, Social and Cultural Rights,1966.
[29] Writ No: WO- 44 of the year 2005 (2062), decision dated 26 September 2005 (2062/10/6)
[30] Paper writer took an interview with Keshav Baral – student and Indra Bahadur Thapa – staff, Sanskrit Pathsala’s hostel, 24.09.2010.
[31] N.K.P. 2060 No 7/8 p. 551
[32] NKP 2061 No 7. p 901
[33] Writ No: WO- 3586 of the year 2000 ( 2057), decision dated 14 November2003 (2060/7/28)
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