Justiciablity of Economic, Social and cultural Rights Judgements' in Nepal

Justiciability of Economic, Social and Cultural Rights’ Judgements in Nepal[1]

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 became a party to the ICESCR on 14 May 1991. Since the State party has the legal and moral obligation to abide by the provisions of the Covenant, Nepal has the legal basis for the justiciability of economic, social and cultural rights (ESCRs) which emanates from the provision of the Nepal Treaty Act, 2047 B.S (1990). Section 9(1) of the Act provides that:

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 the justiciability of economic, social and cultural rights which incorporates some major components for instances; legal framework, judicial admissibility and implementation, evaluation and monitoring mechanism from state level.  In the legal framework we can see the vast changes in the development of each Constitution from the Constitution 1947 to the existing Interim Constitution 2007.  Though the Constitution of the Kingdom of Nepal, 1990 provided less scope for the personal rights[2] from ESC rights perspectives, however, it shows the sight for the upcoming constitution .The existing Interim Constitution comes with immense development from the human rights perspective. The Interim Constitution 2007 has incorporated judicial enforceable rights in Part III as fundamental rights and Directive Principles and Policies of the State in Part IV. Similarly, the Constitution has guaranteed the right to constitutional remedy in Art. 32 as set forth in Art. 107 which is not only the fundamental right of Nepalese citizens but also a non-derogable right.[3] These instances show that the Interim Constitution has succeeded in inscribing the ICESCR as fundamental rights which are judicially enforceable. From the Human Rights development perspective, this constitution can be termed as PAPER TIGER and its strength is yet to see. 

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, the independent judiciary is also realizing the foremost basic needs of human beings. However, the human rights challenges that Nepal faced prior to the conflict, which continue to challenge development and stability in the country, are broad and widely varied.[7] During Nepal’s most recent review by the United Nations Committee on Economic, Social and Cultural Rights (CESCR), the committee included a litany of abuses, noting primarily extreme poverty, inequalities between men and women, trafficking in women and girls, the high rate of domestic violence, under and unemployment, problems faced by ex-bonded laborers, inadequacies in mandated minimum wages, and the high incidence of Child Labor. [8] Additionally, the right to food, work, health, and housing were all cited as being out of reach for much of the population, especially in rural areas.[9]

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, Article 12 which guarantees the right to live with human dignity and Art. 13 which guarantees the right against discrimination.

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, 32 districts face food deficit and among them, 16 face acute scarcity. They also referred various news report (national daily newspapers named as Kantipur, The Kathmandu Post and Gorkhapatra) that portray the scarcity of food, mismanagement in the distribution, of food by the Nepal food corporation, distribution of rotten food, various calamities resulting from or abated by mal-nutrition, in the mid and far western hill districts. They asked for the issuance of appropriate order in the name of respondents that guarantee the right to access to food by the citizens, proper arrangement regarding transport, safe custody and distribution of foodstuff in the food deficit zones, special protective measures for aged, children, and pregnant and lactating mothers, and constitution of inquiry commission against the Nepal Food Corporation, necessary legal action against the culprits of the corporation.

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 (GON), Prime Minister (PM) and Ministers of Council must declare the Chhaupadi System as social ill practice within a month from the date of directive order.

                  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.

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[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, 2007.

[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 (Maoist) on 21 November, 2006. Following the Accord, an era of peaceful coexisting has begun ending the insurgency and conflict staged by Maoist since 13 February, 1996. Thus this Accord is considered as a landmark event in the Nepalese political history. (Comprehensive Peace Accord Concluded Between the Government of Nepal and The Communist Party of Nepal (Maoist), Comprehensive Peace Accord, 2006, Peace Committee, Peace Secretariat, Singh Durbar, preface part.)   

[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 Press, 2008.

[7] Wickeri Elisabeth, No Justice, No Peace:Coflict, ScoEconomic Rhts, AndT N Contitution In Nepal; earlemacklaw.drexel.edu/lawreview/Articles/…/wickeri42790.ashx, 2010.

[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, 11, U.N: Doc. E/C.12/NPL/CO/2 (Jan.16.2008).

[9] Ibid.

[10] Interim Constitution of Nepal, 2063(2007)

[11] Writ No: WO-0338 of the year 2064 decision dated 2065/11/5/2

[12] Writ No: Wo- 3341 of the year 2055, decision dated 2055/6/27.

[13] Writ No: WO- 2621 of the year 2059, decision dated, 2061/7/20/6

[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.

[20] Writ No: WO- 061-3303

[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.

[24] Writ No: WO - 88 of the year 2059 (2002),  Decision no 7268 p 726

[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.

[28] Writ No:  WO - 3295 of the year 2061, decision dated 10 September, 2006  (25/05/2063) .

[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)

Women’s Role in Peace Building in Nepal

Women’s Role in Peace Building in Nepal

Samira Paudel

Introduction

Peace building is an inclusive democratic process that requires a close partnership, respect and dialogue among all stakeholders – including the ordinary citizens. It is the effort to promote human security in societies marked by violence and conflict. The overarching goal of peace building is to strengthen the capacity of societies to manage conflict without any recourse to violence, as a means to achieve sustainable human security and reconciliation in societies.

FES Nepal which was established in 1995, is currently working on activities and issues pertaining to democratization, conflict transformation and peace building. This reflects the basic values of FES namely, social democracy, social justice, solidarity and peace where peace-building is a very important theme for Nepal at this transitional period. After the signing of Comprehensive Peace Agreement between the Seven Party Alliance (SPA) and the CPN-Maoists (Communist Party of Nepal), the ongoing conflict was shifted into the peace process with the aim to hold Constituent Assembly elections by June 2007 so as to draft a new Constitution for a New Nepal. Already, Nepal has endorsed some international agreements on human rights, civil and political rights and social, cultural and economic rights, CEDAW and Beijing Declaration. Still, there is a big gap between the conditions of society and acceptance of human rights principles by CPN (Maoists) and counter-insurgency operations by the state. Further, conflicts are appearing in Terai, hills and mountains for rights, power, resource and identity.

The Framework Condition

In a developing country like Nepal where more than half of the population is women, it is very important to identify the conditions of women and realize the role of women in peace building. More then 13,000 people have lost their lives over the last 12 years due to CPN (Maoists)’s insurgency and counter-insurgency organized by the state. About 300,000 people were displaced from their homes. Innocent civilians mostly women and children were the victims of the ongoing violent conflict where it was estimated that about 37,000 women were affected by the violent conflict. Thousands of children have been affected directly and indirectly where 419 (295 boys and 124 girls) innocent children have lost their lives. Around 40,000 children have been displaced due to the armed conflict and more than 8,000 children have been orphaned. A total of 19 People (2 women) have lost their life in the April 2006 movement where 5,000 people were wounded. Despite women’s crucial participation in political movement their role occupancy in crucial areas of decision-making regarding war and peace has been neglected by their male counterpart.

Nepal’s historically evolved patriarchal tradition and caste-based social structure are not letting women come to the decision making level which indirectly effects the country’s economy and this is also affecting the country’s development. As the voice of half of population is unheard they are still living harder lives in the rural areas facing gender discrimination and exploitation. Women are excluded from the society both as beneficiaries and contributors. They have been deprived of most of the opportunities including access to business, trade and industry, gainful employment, entrepreneurial and skill development opportunities, education, health etc. They are discriminated even by the laws of the land on many matters and this begins from their early childhood socialisation where the preference for male child is still strong due to a religiously ingrained attitude. Conflict has affected men and women differently. Gender-based violence such as sexual violence, rape, unwanted pregnancy, forced recruitment as spy or in the fighting force, psychological damage, life-threatening diseases such as HIV/AIDS, infertility, stigmatization and rejection by family members and society, alienation, divorce, being declared unfit for marriage and severe economic and social consequences, widowhood, psychological shock, economic burden for the family, etc have put women in a disadvantaged position.

Since April 2006 in the political arena, a condition of no-war-no-peace prevails in the country. Political leaderships have announced a series of reforms and committed to provide women 33% of seats in the institutions of governance. Still gender imbalance continues in every aspect of life, such as politics, labor market, education and empowerment. Women’s organizations and the international community are, therefore, pushing for gender responsive governance. The recently published Interim Constitution involved 4 women in the draft committee. It shows a bit of change in attitude of leadership but no women was represented in the peace negotiation that produced the Comprehensive Peace Agreement. This also indicates that leaders have not outgrown their conservative thinking. But the implementation of Interim Constitution is likely to increase women’s seat in the 330-member interim parliament and 425-seat for Constituent Assembly body and increase their voice and visibility in decision making. Gender responsive organizations are struggling to achieve equal outcomes for both men and women from national initiatives.

In May 2006, the parliament passed a proposal which obliged the government to issue a citizenship certificate to children with the mother as approver or legal guardian, to guarantee proportionate representation in all state mechanisms including jobs and other opportunities in the long run and to end all provisions in laws that discriminate against them. The post-conflict peace building efforts require alleviating their suffering and creating equal social, economic and political outcome for both women and men. On December 18, Nepal ratified CEDAW’s Optional Protocol. This provides Nepali women the power to bring claims of gender discrimination directly to the UN committee. However, in rural areas, due to the lack of proper knowledge, law enforcement agencies are exploited by anti-social elements. Rural women require capacity building efforts including access to the institutional resources of the state, market institutions, civil society and the international community.

Women and Peace

Positive peace brings transformation in the society. It helps the citizens to achieve freedom and establishes equality of male and female in all spheres of human lives. The real meaning of politics is to serve public interest, hand out justice and set up cordial relationship between the political actors and stakeholders of the society. It should provide essential education for right conduct and talk about the freedom of all men and women. Proper education, teaching and socialization try to minimize the use of violent words in personal and public communication and action in daily life of society. Gautam Buddha said clearly that peace can be achieved only by peaceful means. This means a culture of peace is essential for the creation of a society for peaceful co-existence.

The recent restoration of democracy and conflict transformation in Nepal confirm the fact that the power of powerless is expressed fully through non-violent means of politics by solidarity, purposeful communication and collective action. This means expansion of the participation of women at all levels of society and every aspect of public life is a way to make politics human, non-violent and peaceful. This has been the cry of Nepalese women since the dawn of human civilization. It is a cry of the majority of the Nepalese population for building an order in society so that stakes for peace become a common concern for all members- women, men, children and disabled. Exclusion of women in the politics of peace means paralyzing more than half the population from creative change and making the change sustainable.

Violent conflict affects all the citizens; especially the weaker sections of the society like women, children, disabled and the poor. They lack sufficient mechanism for security, safety and protection. They are ones who are the direct victim of various kinds of conflicts direct structural and cultural. Even though the cost of the conflict is borne by these sections of the societies the benefits are shared and taken by the powerful actors and stakeholders mostly male ones. Therefore, the situation of conflict must be removed by the means of democratization of the state, political parties, civil society, economic institutions and also the community themselves. This is only possible when the collective voice of women is expressed in the public sphere and long-term realistic planning of society is made. Peace requires truth telling about the condition where political leaders conservatively maintain a creek between the promise and practice and ultimately fail to recognize the core meaning of politics which is to maintain morality in public life and not to lie to the people. Women’s organizations in Nepal are struggling hard to minimize the level of violence in politics and seeking for legitimate roles in peace negotiation, mediation and in the conflict resolution process.

Human right situation has worsened in Nepal: Amnesty report

Launching its global annual report “the state of the world’s human rights-2010″ on Thursday, the Amnesty International (AI) said human rights situation in Nepal has deteriorated.

The report points out to hundreds of killings and abductions by state forces and armed groups that have contributed to the deterioration in the rights situation. Public insecurity, AI report said, has escalated with growing number of armed groups taking to violent action against civilians.

The police used unnecessary and excessive force to dispel political and right-based demonstrations, and there have been many incidents of torture to the prisoners, according to the report

The global report, which was made public in Kathmandu by its AI Nepal chapter in a press conference Thursday, further said the commitment made in Nepal’s 2006 Comprehensive Peace Accord to uphold civil, political, economic and cultural rights remained unfulfilled.

It has also blamed political division and proliferation of armed groups for the rise in human rights violations.

Women rights defenders were threatened, assaulted and killed during the reporting period. “There has been continuing violence on dowry deaths and sexual violence.”

Amnesty International Nepal chairman Hem Kumar Khadka said the government stalled ratification of the Rome Statute of the International Criminal Court despite a commitment from Nepal’s then minister of Foreign Affairs.

The AI-Nepal has already submitted more than 13,000 appeal letters to the minister of Foreign Affairs, calling for the government to proceed with ratification, but it didn’t see any progress made though the minister has agreed to begin the process.

The report was prepared after study on torture or other ill-treatment in at least 111 countries, unfair trials in at least 55 countries, restrictions on free speech in at least 96 countries and prisoners of conscience in at least 48 countries.

Human right situation has worsened in Nepal: Amnesty report
Launching its global annual report “the state of the world’s human rights-2010″ on Thursday, the Amnesty International (AI) said human rights situation in Nepal has deteriorated.The report points out to hundreds of killings and abductions by state forces and armed groups that have contributed to the deterioration in the rights situation. Public insecurity, AI report said, has escalated with growing number of armed groups taking to violent action against civilians.The police used unnecessary and excessive force to dispel political and right-based demonstrations, and there have been many incidents of torture to the prisoners, according to the reportThe global report, which was made public in Kathmandu by its AI Nepal chapter in a press conference Thursday, further said the commitment made in Nepal’s 2006 Comprehensive Peace Accord to uphold civil, political, economic and cultural rights remained unfulfilled.It has also blamed political division and proliferation of armed groups for the rise in human rights violations.Women rights defenders were threatened, assaulted and killed during the reporting period. “There has been continuing violence on dowry deaths and sexual violence.”Amnesty International Nepal chairman Hem Kumar Khadka said the government stalled ratification of the Rome Statute of the International Criminal Court despite a commitment from Nepal’s then minister of Foreign Affairs.The AI-Nepal has already submitted more than 13,000 appeal letters to the minister of Foreign Affairs, calling for the government to proceed with ratification, but it didn’t see any progress made though the minister has agreed to begin the process.The report was prepared after study on torture or other ill-treatment in at least 111 countries, unfair trials in at least 55 countries, restrictions on free speech in at least 96 countries and prisoners of conscience in at least 48 countries.

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A Dalit Community in Nepal

For centuries discrimination and social exclusion have kept the Dalit communities of eastern Nepal living in poverty.

Human Rights activist Janaki Devi Ram, herself a Dalit, says the 1,500-year-old Hindu tradition describes those born into the social group as ‘untouchables’, restricts their employment opportunities and treats them as outcasts of the societies in which they live.

‘We are poor because we are Dalits and must pick up the carcasses of dead animals,’ she says.

Six years ago Ms Devi Ram began a protest in the district of Siraha that has inspired and been repeated by Dalit communities across the country. 150 members of the Dalit community in the town of Lahan went on strike, demanding a just pay for their long hours of work.

‘Immediately the high-caste farmers placed a blockade on us because we refused to pick up the carcasses,’ she explains. Non-Dalit employers across the district barred them from using public services, the water supply and even buying food in the shops. One day into the blockade, Ms Devi Ram says, the Dalits’ determination strengthened and more than one thousand staged a sit-in at the office of the Chief District Officer who ordered landowners to lift their blockade. A few weeks later 10,000 converged on the capital, Kathmandu , and submitted a letter of their grievances to the Prime Minister.

But the discrimination persists and earlier this year a similar protest over low wages in the village of Bhawaniput-Kalabanjur was met with physical abuse of the protesters as well as a blockade. A pregnant woman reported being punched in the stomach and pulled by the hair.

The United Nations human rights office in Nepal (OHCHR) is investigating a number of reports of caste-based discrimination including the beating, rape and murder of members of Dalit groups.

OHCHR officer Sushil Raj says the crimes against this group and their poverty are the result of the discrimination.

‘It is important for everyone to understand the impact of discrimination on the lives of these people,’ he says. ‘All sectors of society can agree on action to change prejudices, empower those facing discrimination and ensure equal social and economic opportunities at the local and national levels”.

Improving respect for human rights is fundamental to improving social and economic development as well as preventing the conditions that can lead to conflict. OHCHR Nepal is working with Dalit communities and activists to raise awareness of the impact on the society of discrimination.

Source: http://nepalhumanrights.com/researchreports/