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Initiative for protection & promotion of ESC rights PDF Print E-mail

Nepal acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1991 without any reservation. There is no effective national mechanism for remedy on the violation of ESC rights. The state ignores the ESC rights stating that they are the subject of progressive realisation. Nepal is not a party to the Optional Protocol of ICESCR (OP-ICESCR). This hinders implementation of the Covenant and denies right to seek remedy for its violation.

The existing status of economic, social and cultural rights in Nepal suggests that it has failed to meet the obligations originating from the provisions of the Covenant. Nepal, like any other state party to the ICESCR, is required firstly, to make clear budgetary and implementation efforts to meet the basic needs of its citizens. Secondly, it is obliged to ensure that citizens will have a right to redress or reparation if these rights are denied or infringed upon. As a state party, Nepal government assumes the obligations to respect, protect, and to fulfil the rights enshrined in the Covenant without reservation. The 'minimum core obligation' of the Covenant is to satisfy 'at the very least, minimum essential levels of each of the rights', to the maximum of each state's available resources. General Comment 3 of the ESCR Committee notes that where the minimum core standards are not realized, resource constraints should be considered within the context of state parties having allocated "all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations."

 

1. Initiative for protection and promotion of ESC rights (May 2012 to April 2013)
This Initiative of FOHRID attempts to address the need to enable target audience including victims of ESC rights violations to seek justice and remedy through the Optional Protocol once it enters into force. It will allow anyone whose ESC rights have been violated to lodge a complaint before the Committee on Economic, Social and Cultural Rights, the UN independent body of experts responsible for supervising State compliance with all the rights protected in the ICESCR. This Initiative shall address some of the most pertinent human rights challenges in the post conflict situation of Nepal. At a time when the society is facing challenges in terms of health, education, social security, Nepal more than ever needs to take all necessary steps to ensure that the fundamental rights of the people are upheld and protected above any other priority. A large number of people in Nepal suffer violations of their ESC rights, including the rights to adequate housing, food, water, sanitation, health, work and education. Many of them find no mechanism within their reach to address these violations, and upto now, there is no procedure at the national level to claim against violation of these rights. Once in force, the Optional Protocol will enable victims of violations of the rights protected in the ICESCR, who are unable to find remedies within their own countries, to seek justice within the United Nations. The Optional Protocol will help to improve or enhance existing national complaints mechanisms for victims of violations on ESCR, and motivate States to comply more fully with the obligations imposed by the Covenant.

Objective of this Initiative is "To increase awareness on the OP-ICESCR and strengthen capacity of target audience and beneficiaries to apply this instrument as an important tool to advance ECSR at the local and national level in Nepal and to promote public advocacy for immediate accession/ ratification of OP-ICESCR in Nepal." This project is being implemented with the assistance of The Finnish NGO Foundation for Human Right. Under this project, ToT Manual shall be prepared on the OP-ICESCR framework for Capacity building. Capacity building workshop shall be implemented on the basis of the ToT Manual. Lobbying, media mobilization and FGD with Media shall be implemented under Advocacy.

 

Ratification and implementation of Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Advocacy / Training Toolkit
This publication has incorporated a broad range of resource materials on ESC rights under the same cover that are not available in Nepali language till now. Objective of publishing this Toolkit is "To increase awareness on Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) among stakeholders, to strengthen capacity of the target audience, to promote and advocate for ICESCR, on OP-ICESCR as an important tool for advancement of ESC rights at district level and to empower target audience for ratification/accession campaign of OP-ICESCR." This Toolkit shall be utilized as ToT Manual and Advocacy Resource Book by various organizations working in the theme of ESC rights. Likewise, the book shall be useful for the policy making level and legislative organs to understand this issue. FOHRID shall use it as a resource material to conduct training, ToT and workshop for capacity building. This publication has been prepared focusing particularly the target audience including lawyers, journalists, district level political party representatives, human Rights and civil society leaders.

The first chapter of the Toolkit contains Introduction of OP-ICESCR that includes a) ICESCR and its monitoring body, b) Rights protected under ICESCR, c) State obligations under ICESCR, and d) Justiciability of the ESC rights. The second chapter is about the new issues introduced by the OP-ICESCR such as inquiry mechanism, individual complaint procedure and inter-state complaint mechanism. The third chapter describes about adoption and ratification process of OP-ICESCR and need to adoption and ratification of the OP-ICESCR by Nepal. The fourth chapter clarifies about the myth and facts about the OP-ICESCR. The fifth chapter describes about the lobbying and advocacy process for ratification of OP-ICESCR at the national level. The sixth chapter deals about monitoring process after ratification. The whole book has been divided into various sub-topics to fit training sessions.

In the annexure, it has included the International Covenant on Economic, Social and Cultural Rights, 1966; Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 2008; The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 1997; The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1986; General Comment No. 3 of the Committee on Economic, Social and Cultural Rights: The nature of states parties’ obligations; and General Comment No. 10 of the Committee on Economic, Social and Cultural Rights: The role of national human rights institutions in the protection of economic, social and cultural rights.

 

Complaint mechanism on the violation of economic, social and cultural rights and ratification of OP-ICESCR
The existing status of economic, social and cultural rights in Nepal suggests that it has failed to meet the obligations originating from the provisions of the Covenant. Nepal government assumes the obligations to respect, protect, and to fulfill the rights enshrined in the Covenant without reservation. There is need to enable target audience including victims of ESC rights violation to seek justice and remedy through the Optional Protocol after it enters into force. In the present Nepalese context we must demand to improve national complaint mechanism to implement, monitor, receive complaints and ensure justice on the issues pertaining to ESC rights. The existing mechanisms include judiciary, National Human Rights Commission (NHRC), National Women Commission and National Dalit Commission. After ratification of OP-ICESCR, the state will have obligation to establish a specific national complaints mechanism on violation of ESC rights. Besides, it is need of the hour to improve the existing complaints mechanism to address the issue of ESC rights.

The Interim Constitution of Nepal, 2007 has incorporated many of the ESC rights as fundamental rights, and these rights will certainly be reflected in the new constitution. It is necessary to strengthen the role of judiciary, NHRC, National Women Commission, National Dalit Commission to protect and promote these fundamental rights of the people. The citizens can seek remedy in case of violations of their ESC rights with these mechanisms. However, these commissions are not working effectively on ESC rights and there is no specific body in this regard. The national court has not developed adequate jurisprudence to provide remedy in the ESC rights violation as such cases are not filed with priority.

In this context, it is necessary to bring into debate the issue of improving and empowering national complaint mechanism on violation of economic, social and cultural rights. Considering this need an interaction program entitled "Complaint mechanism on the violation of economic, social and cultural rights and ratification of OP-ICESCR" was held in the auspices of National Human Rights Commission (NHRC), convened by Human Rights and Democratic Forum (FOHRID) and with the involvement of other 21 organizations on 26 July 2012 at NHRC Conference Hall, Pulchok. Aim of the program was "To conduct interaction among stakeholders including policy making level on the need and importance of Complaint mechanism on the violation of economic, social and cultural rights and ratification of OP-ICESCR and to motivate and sensitize on the ratification."

The program chaired by NHRC Chairman Kedarnath Upadhyaya was conducted with the round table interaction method. In the beginning, Tejman Shrestha, Focal Officer, Policy Research and Planning Division, NHRC presented his paper entitled "Role of NHRC Protection and Promotion of ESC Rights. Similarly, FOHRID President Birendra Thapaliya presented his paper entitled "Complaint mechanism on the violation of economic, social and cultural rights and ratification of OP-ICESCR". He discussed on the State obligations under the Covenant, the body of experts in charge of implementing the Optional Protocol and the challenges related to the implementation and enforcement of ESC rights. Likewise, FOHRID Secretary General Raj Kumar Siwakoti presented his paper entitled "Mandate of OP-ICESCR and necessity of Nepal to adopt and ratify it". In his presentation, Mr. Siwakoti threw light on the adoption and ratification process of the Optional Protocol including the procedures and mechanisms introduced by it.

After the presentation of papers, Nutan Thapaliya, Ex-member, UN Committee on Economic, Social and Cultural Rights, NHRC Commissioners Ram Nagina Singh and Gauri Pradhan expressed their expert opinion. Likewise, Deepak Dhital, Under Secretary of Ministry of Foreign Affairs, Kalanidhi Paudel, Under Secretary of Ministry of Land Reform, Dipendra Kafle, Under Secretary, Ministry of Health and Population, Rajendra Sigdel, Under Secretary, Ministry of Culture and Tourism, among others, expressed their opinion on the occasion. The program was attended by around 100 participants including government representatives, civil society, lawyers, human rights defenders and journalists. Following conclusion and recommendations were made by the program:

  • Issues of economic, social and cultural rights:
    Among the most essential ESC rights, the situation of food, shelter and clothing has not improved significantly in Nepal. Many people are homeless. Citizens are deprived of basic health care, e.g., dozens of people die of diarrhea and influenza every year. They have little access to the means of sustainable livelihood. Muslim is one of the backward communities of Nepal. Above 80% people are poor and unemployment rate is also high in this community. They are poor and deprived of education. The situation of women is worst as they are deprived of rights, and the caste based discrimination is prevalent till now. Those opting for intercaste marriage are persecuted from the society. The government has not provided significant support to them. The rights of dalit is denied time and again. The people with disability are facing more difficulty. The reservation and quota for employment has not benefited them much. Those who get employment are expelled showing various reasons. While monitoring famine in 18 districts where 65,000 people were affected, it was found that inedible rice was distributed to them. There is shortage of gas in the market. The new mothers are unable to arrange fire to heat their body. The farmers do not get seeds and fertilizers during monsoon season. The government is evicting homeless squatters without any alternate.
  • Monitoring, complaint and justice in the violation of ESC rights:
    There is lack of effective monitoring mechanism in the incidents of violation of ESC rights. The existing complaint mechanism has not received much communications of violation. The court has also failed to play effective role. In this backdrop, the victims hardly get opportunity to claim justice in the violation of ESC rights. Compared to other countries of the world, Nepal has not paid due attention to protect these rights. The constitution has not included provision to ensure right to the victims of ESC rights violation. Therefore, the state fails to provide justice to them. Ratification to the OP-ICESCR shall open way for prosecution against violators and justice for victims. after ratification, the victims shall get access to UN CESCR if they fail to get justice through the national mechanism. Nepal government shall establish complaint mechanism. The NHRC can fulfill the need of complaint mechanism at the domestic level.

    The NHRC is a constitutional body with strong and effective jurisdiction. Therefore, a complaint mechanism for violation of ESC rights within NHRC should be considered for debate. The government should provide with speedy justice for the victims of ESC rights violation. It is a duty of the government to establish national mechanism for this. If the victims fail to receive justice from the available national mechanism, they should be enabled to lodge complaint to the UN Human Rights Council or other thematic committees. OP-ICESCR ensures complaint mechanism at the domestic level and if it is not adequate the victims can complaint in the international mechanism. In such cases the causes hindering lack of justice in Nepal shall be inquired, questions shall be asked regarding the communication and the direct complaint to the international mechanism is returned. This means the problem should be addressed at the domestic level first. The state must adopt quick justice delivery principle as justice delayed is justice denied. The Indian supreme Court gives verdict to provide justice if any complaint on ESC rights is lodged. The verdict is implemented, which is important for justice.
  • Discussion on the ratification of OP-ICESCR :
    Currently, there is a caretaker government without parliament in Nepal. So, a question may arise whether it is a suitable time to discuss on the issue of ratification of the OP-ICESCR now. Actually, this debate has been initiated to make the process easier in the future. We fought many times for political rights in the past 6 decades but the ESC rights were always neglected. Therefore, our aim is to create a congenial environment to fight for our rights together. Human rights standards, principles and practices have been developed for peace, development and human welfare. Nepal is in the forefront to ratify international instruments in the whole South Asia. Being aware of the limitation of our means and resources while providing rights shall enable us to implement them.

    Nepal ratified ICESCR but has not ratified its Optional Protocol till now. Government seems to have misunderstanding about it. The movements in the past were triggered by the lack of ESC rights. The anger of the people will reach its apex if the state fails to ratify the OP-ICESCR. When the Covenant has already been ratified, it is not logical to deny ratification of its complementary instrument that provides procedural framework to implement the Covenant. We must work jointly to create environment for ratification of the Optional Protocol. Discussion should be conducted at the district level as well for ratification of OP-ICESCR. The civil society and general stakeholders should be sensitized on the mandate of OP-ICESCR. Capacity building is necessary on how we can protect and promote ESC rights within the mandate of OP-ICESCR.
  • Initiation, achievement, common ground and continuation :
    It would be more relevant to hold interaction with the representatives of parliament in this issue. However, as we do not have parliament now, we have focused the participation of government agencies, policy makers and civil society. This is only beginning of the initiative. Continuation of this action will enable us to convince the future parliament to ratify the OP-ICESCR resulting in better protection and promotion of ESC rights. It is a significant achievement that more than 20 human rights organizations came under the same umbrella in this pertinent issue in the joint initiation of NHRC and FOHRID. Collaboration has started. This should be continued as a flexible network in the future.

 

Promotion of ESC rights in the post conflict society and accession/ratification of OP-ICESCR
The government and its agencies should play active role for realization of ESC rights. They should mobilize means and resources and construct infrastructure. Nepal government and its authority seem to be unwilling to ensure these rights with the false belief that it requires additional expenditure. FOHRID has been conducting discussions with political parties, thematic experts, civil society and other stakeholders on the issue of ensuring these rights to the people. In this context, a discussion was organized by FOHRID in Kathmandu on 12 June 2012. The Objectives of the program was to encourage positively awareness and concern of general citizens towards ESC rights and to discuss about government attitude towards ESC rights and exert pressure to the government for ratification of the OP-ICESCR. More than 34 participants representing human rights community, civil society, lawyers, students and other stakeholders actively participated the program. Following conclusion was drawn from the expert opinion and feedback of the participants:

  • Though Nepal ratified to the ICESCR on 14 May 1991, less discussion is made on the rights enshrined in the Covenant. It is necessary to discuss the issue of ESC rights in the post conflict situation from national to the grassroots level. The issue of ratification to the OP-ICESCR should also be forwarded with it. Implementation of ESC rights in Nepal, monitoring of the realization of these rights and seeking remedy for violation of these rights should be raised along with the campaign for ratification to the OP-ICESCR.
  • There is lack of effective mechanism to seek justice for violation of ESC rights in Nepal. The state neglects these rights saying that they are the subject of progressive realization. The understanding of the general people is also similar, which has hindered timely realization of these rights. The general public must be sensitized to the fact that ESC rights are enforceable and justiciable.
  • The issue of ESC rights is the common agenda of human rights and civil society. The people from the grassroots level should be sensitized on this issue. Collaboration between the organizations working in this field is necessary to succeed the campaign. This has been started, and we need to make it more systematic with proper action plan.
  • Some organizations have been working with specific ESC rights issues such as rights to food, health and education. They have expertise in their respective field. These organizations should be encouraged to work in the common framework of ESC rights. We must start working on the measures such as monitoring of the violation of ESC rights, documentation, filing PIL. Such measures shall assist us to follow up the state reports submitted to the UN and preparing and submitting alternative / shadow report on behalf of the civil society. Therefore, we must concentrate on three issues. First, documentation of ESC rights violation; second, seeking justice on the violation of ESC rights; and third, human rights and civil society collaboration for awareness creation and exerting pressure to the policy making level on the ESC rights.

Several efforts have been made in the field of ESC rights but they are not enough and effective. The government is indifferent towards fulfilling these rights. There is absence of effective mechanism to ensure justice to the victims of ESC rights violation, and the victims do not have access to justice. Nepal has so far become party to 22 international instruments; however, their implementation status is not encouraging. In this backdrop, it is necessary to exert pressure by all the stakeholders from their respective fields to accede to the OP-ICESCR.

 

Lobbying for ratification/accession of OP-ICESCR
A delegation of the human rights and civil society led by FOHRID Chairman Nutan Thapaliya met with Narayan Kaji Shrestha, Deputy Prime Minister and Minister for Foreign Affairs at his office at Singha Durbar, Kathmandu on 12 June 2012. The Deputy Prime Minister and Minister for Foreign Affairs listened with keen interest to the briefing by delegation about the importance and need of ratifying Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). He thanked the delegation for raising this important issue at the time when only the political rights are being emphasized in the constitution making process. He assured that he would seriously consider the need to respect, protect and promote economic, social and cultural rights of the people through becoming party to the OP-ICESCR. Deputy Prime Minister Shrestha expressed commitment to more deeply study about this issue through his own channel in the Ministry of Foreign Affairs and make efforts to ratify it on behalf of Nepal government.

On the occasion, Mr. Nutan Thapaliya, FOHRID Chairperson and Ex-member, Committee on Economic, Social and Cultural Rights discussed about features of International Covenant on Economic, Social and Cultural Rights (ICESCR) and recalled with satisfaction ratification of this instrument by Nepal in 1991. Similarly, Mr. Bishnu Pukar Shrestha, Chairperson of CAHURAST briefed about the initiative of human rights and civil society to promote economic, social and cultural rights in Nepal. Apart from these activities, FOHRID has been conducting regular discussion and interaction with human rights and civil society for ratification / accession of OP-ICESCR.

 

2. Initiative to incorporate Economic, Social and Cultural Rights (ESCR) in the New Constitution
The political changes of the past in Nepal could not sustain for a long time as the state failed to address the citizens' expectations for economic, social and cultural rights. This dissatisfaction of the people resulted in conflict of various kinds and scales. Some of these rights have been included in the Interim Constitution of Nepal, 2007 to be implemented "as provided in the law". The nation will witness another cycle of conflict if the economic, social and cultural rights are not recognized as unconditional fundamental rights in the new constitution. The civil and political rights will be incomplete and meaningless without effective presence and guarantee of economic, social and cultural rights.

As it is the responsibility of the state to ensure rights for the people, the state should make maximum use of its available resources to this end. FOHRID has been conducting series of advocacy and campaign on this issue for a long time. Limiting citizen's economic, social and cultural rights in the constitution by "as provided in the law" is not appropriate. These rights should be incorporated as unconditional fundamental rights in the new constitution. The nation faced 10 years long armed conflict because the people were deprived of their economic, social and cultural rights by the state. These rights must be effectively incorporated in the constitution to avoid such unwanted situation in the future. It is necessary to accomplish the responsibility to ensure sustainable peace in the country by addressing the factors that caused conflict in the past and addressing the need of constitutional guarantee of economic, social and cultural rights. The economic, social and cultural rights can be ensured through progressive realization, if the state cannot provide all of them at the same time. But, the most essential rights such as right to food, right to education, right to health should be guaranteed immediately.

To support the constitution making process by the CA, FOHRID launched an initiative to incorporate ESC rights in the new constitution. After consultation and interaction with the experts, recommendation was made to incorporate following economic, social and cultural rights as fundamental rights in the new constitution:

  • Every Nepali citizen shall have the right of access to adequate food, clothing and housing.
  • Every Nepali citizen shall have the right to live in a clean environment.
  • Every Nepali citizen shall have the right to free basic health services.
  • Special group of children shall have the right to receive special assistance.
  • The minors shall have right to protection from their use in the hazardous work and army, police or conflict.
  • Every Nepali citizen shall have the right to free education upto secondary level.
  • Every Nepali citizen shall have the right to protect and promote his / her language, script, culture, cultural civilization and heritage.
  • Every Nepali community shall have the right to receive education in its own mother tongue.
  • Every Nepali citizen attaining majority shall have the right to employment.
  • Incapacitated, the aged and children shall have the right to social security.
  • Every Nepali citizen shall have the right to property.
  • The communities at the verge of extinct shall have the right to social justice.
  • Every Nepali citizen shall have the right against exploitation.
  • Every Nepali citizen shall have the right to proper work practice and right to form trade unions.
  • Every Nepali citizen shall have the right to develop local skill, labour and technology.
  • Every Nepali peasant shall have the right to enjoy peasant's rights.

 

Assessment of outcome
This action was successful to sensitize general stakeholders on the importance of the ESC rights. The program explored how and which rights must be incorporated in the new constitution as fundamental rights. The concerned CA Committees and the CA Members expressed their commitment to incorporate representative ESC rights as fundamental rights in the new constitution. This program initiated discussion on various aspects of IESCR and opened door for their effective implementation in Nepal. Pressure was exerted against government to implement the IESCR. It can be expected that the CA shall incorporate the ESC rights recommended through this program.

 

Learning and challenges
Many constitutions formulated after the 1990 around the world have incorporated the major ESC rights as fundamental rights. However, these rights are regarded as the subject of progressive realization. Implementation of these rights is not possible just by incorporating them in the constitution. In the light of South African experience, one can suspect effective implementation of the ESC rights even though the major ESC rights are incorporated in the new constitution as fundamental rights. We have to make further efforts to ensure benefits of these rights to the people.

 

Interaction Program on Economic, Social and Cultural rights as Fundamental Rights in the New Constitution
The April movement of 2006 brought significant hope and progress in the struggle for rights and democracy in Nepal. It was a milestone in attaining both the fundamental economic, social and cultural rights and civil and political rights. The Interim Constitution incorporated some of the economic, social and cultural rights as fundamental rights for the first time in the constitutional history of Nepal. However, many of the rights have been left out. Now, we have the responsibility to retain the economic, social and cultural rights incorporated by the Interim Constitution and add other important rights in the new constitution. The general stakeholders are raising voice for guarantee of rights at the highest level. We are exploring potential to incorporate civil and political rights as well as economic, social and cultural rights of the people in the new constitution. Institutional development of democracy and transformation of society is impossible without unconditional guarantee of the rights of both these groups, which are fundamental rights, in the new constitution. Therefore, it was felt necessary to determine the views of civil society regarding which rights should be incorporated in the constitution as fundamental rights, to recommend in the language of constitution and to obtain commitment of the CA Members. Considering this necessity, Human Rights and Democratic Forum (FOHRID) and Amnesty International Nepal jointly organized an interaction program entitled "Economic, social and cultural rights: Fundamental rights in the new constitution" on 28 July 2009 in Kathmandu.
Altogether 49 participants including Bir Man Chaudhari and Hari Sripaili, CA Members representing UCPN-Maoist, Kedar Nath Upadhyaya, Chairman of National Human Rights Commission (NHRC), human rights community, civil society, lawyers, journalists participated the program. This interaction made the following Conclusion and suggestion:

Economic, social and cultural rights cannot be separated from the fundamental rights
Ensuring civil and political rights and economic, social and cultural rights is the prerequisite for creation of civilized society. Both the covenants International Covenant on Civil and Political Rights (ICCPR) and ICESCR are parts of international human rights law; hence, a State cannot formulate any domestic law to downsize them. As Nepal is already a State party to the ICESCR, it is obligatory for Nepal to implement provisions of this Covenant. The State must adopt constitutional and legal measures and establish mechanisms accordingly to fulfill this obligation. Nepal's obligation cannot be fulfilled till the people realize the guarantee of these rights by the State.

It is obligatory for Nepal to ensure unconditional implementation of the international human rights law by the Nepal Treaty Act, 1991 also. At the time when more than 20 developing countries have already incorporated economic, social and cultural rights as fundamental rights in their constitutions, Nepal cannot lag behind in this regard. Therefore, the economic, social and cultural rights cannot be separated from the fundamental rights. As the Limburg Principles and Maastricht Guidelines of the Maastricht Agreement have stressed to guarantee economic, social and cultural rights alongwith civil and political rights, at least the minimum substance such as education, health, food, clean air and clean drinking water should be guaranteed by the limited resources of the State. Fulfilling economic, social and cultural rights is not impossible, if the state is sensitive towards needs of the people and shows will power. One cannot be sure that the people can enjoy the economic, social and cultural rights just by mentioning them as fundamental rights in the constitution. However, it opens door for legal struggle to guarantee these rights. The NHRC can play important role once these rights are mentioned in the constitution. Policy makers, law enforcing agencies and human rights organizations can play responsible role in this regard.

 

Context of economic, social and cultural rights in the Interim Constitution and the fundamental rights limited by the existing law
The list of economic, social and cultural rights enshrined in the Interim Constitution, 2007 as fundamental rights is encouraging. These rights include, Rights regarding environment and health (Art. 16), right to education (Art. 17), right of community to protect and promote their own language, script, culture, cultural civilization and heritage and to receive education in their own mother language (Art. 17), right to employment as provided for in the law (Art. 18), right to social security for a certain group of people (Art. 18), right to food sovereignty as provided for in the law (Art. 18), right to property (Art. 19), right to social justice for certain groups of people (Art. 21), protection of the minors from use in the hazardous works and army, police or conflict (Art. 22), right of disabled children to get special assistance (Art. 22), right against exploitation (Art. 29), right to proper work practices and to form trade unions, to organize themselves and to engage in collective bargaining in accordance with law (Art. 30).

The above rights have been constricted by the term "in accordance with law". This is contrary to the jurisprudence of fundamental rights and constitutionalism. According to the international practice and jurisprudence, the fundamental rights cannot be limited by the term "in accordance with law" or "as provided for in the law". The citizens must be capable to utilize fundamental rights and the State cannot run away from its responsibility to guarantee citizen's access to fundamental rights. But, the major political parties including UCPN-Maoist, Nepali Congress, CPN-UML as well as the then government escaped from their responsibility while promulgating the Interim Constitution by neglecting the international standards and imposing the term "in accordance with law" to the fundamental rights relating to economic, social and cultural rights. This reduced the importance of the fundamental rights. The fundamental rights enshrined in the Interim Constitution, which are limited by the term "in accordance with law" or "as provided for in the law" are as follows:

  • Except as provided for by law no person shall be deprived of his/her personal liberty - Art. 12 (2).
  • No means of communication shall be obstructed except in accordance with law - Art. 15 (4).
  • Basic health services free of cost from the State will be as provided for in the law - Art. 16 (2).
  • Every community shall have right to receive basic education in their own mother tongue as provided for in the law - Art. 17 (1).
  • Right to receive free education from the State up to secondary level as provided for in the law - Art. 17 (2).
  • Right to employment as provided for in the law - Art. 18 (1).
  • Right of women, labourers, the aged, disabled, incapacitated and helpless citizens to receive social security as provided for in the law - Art. 18 (2).
  • Right of every religious denomination to manage and protect its religious places and religious trusts in accordance with law - Art. 23 (2).
  • Right of indigent person to have free legal aid in accordance with law - Art. 24 (10).
  • Right to form trade unions, organize and collective bargaining in accordance with law - Art. 30 (2).

Imposing the term "in accordance with law" or "as provided for in the law" obstructs implementation of the above fundamental rights. The fundamental rights must not be constricted in this way. It will make the guarantee of rights and strengthening of democracy difficult. Guarantee of fundamental rights including economic, social and cultural rights is the pre-requisite for full fledged democracy. If the State does not have capacity to fulfill all the rights, only those rights which are possible to fulfill should be incorporated as the fundamental rights. The citizens must be entitled to utilized fundamental rights without any condition. Otherwise, the citizens will not trust the State and they will be indifferent towards the State.

 

Recommendation
a. The new constitution must continue the economic, social and cultural rights enshrined in the Interim Constitution. The terms "in accordance with law" or "as provided for in the law" should be removed in the continuation of these rights. These rights must be clearly stated in the language of rights. The statutory restriction can limit implementation of rights, and the fundamental rights cannot be enjoyed as rights. For instance, the right to education upto secondary level free of cost cannot be guaranteed in practice, if the other law has not guaranteed such education free of cost. Therefore, the fundamental rights must be guaranteed as rights and as enforceable rights.

b. The new constitution must guarantee following economic, social and cultural rights as fundamental rights:

  • Every Nepali citizen shall have the right of access to adequate food, clothing and housing.
  • Every Nepali citizen shall have the right to live in a clean environment.
  • Every Nepali citizen shall have the right to free basic health services.
  • Special group of children shall have the right to receive special assistance.
  • The minors shall have right to protection from their use in the hazardous work and army, police or conflict.
  • Every Nepali citizen shall have the right to free education upto secondary level.
  • Every Nepali citizen shall have the right to protect and promote his / her language, script, culture, cultural civilization and heritage.
  • Every Nepali community shall have the right to receive education in its own mother tongue.
  • Every Nepali citizen attaining majority shall have the right to employment.
  • Incapacitated, the aged and children shall have the right to social security.
  • Every Nepali citizen shall have the right to property.
  • The communities at the verge of extinct shall have the right to social justice.
  • Every Nepali citizen shall have the right against exploitation.
  • Every Nepali citizen shall have the right to proper work practice and right to form trade unions.
  • Every Nepali citizen shall have the right to develop local skill, labour and technology.
  • Every Nepali peasant shall have the right to utilize peasant's rights.

 

3. Interaction Porgram on “Economic, Social and Cultural Rights for the Right to Life
FOHRID Human Rights and Democratic Forum and Amnesty International Nepal (AI Nepal) jointly organized this interaction program with aim at To create public awareness and provide orientation on the international covenant to ensure guarantee of economic, social and cultural rights on 11 May 2007, Kathmandu. Total 106 individuals participated the program. Representatives from Ministries, National Planning Commission, Poverty Alleviation Fund, National Dalit Commission, National Women Commission, National Human Rights Commission, government bodies, judiciary, Bar Association, diplomatic missions, INGOs, Dalit federation, Janajati federation, Karnali Region Pressure Group, NGOs, media, and former justice, former Ministers, MPs, diplomats, lawyers participated the program. Following conclusions and recommendations were at the end of the program:

  • Discrimination de jure and de facto on the basis of ethnicity, religion, culture, gender, race, origin etc. should be explored. Economic, social and cultural rights should be guaranteed for the people's right to life.
  • Economic, social and cultural rights should be guaranteed for minorities, ethnicities, women, aged people and disabled including foreign employees, stateless persons and refugees.
  • Access to economic, social and cultural rights should be guaranteed with due importance in the post conflict period as it is more at risk during such time.
  • The provisions in the covenant should be familiarized at the public level to ensure protection of human dignity.
  • Public pressure should be created to compel the government to guarantee these rights through promulgation of appropriate law.
  • Information about ICESCR should be disseminated to the people living with poverty and in backward areas.
  • Campaign for guarantee of ICCPR and ICESCR should be taken forward collectively.
  • Implementation of ICESCR is necessary to ensure justice in all sectors including social, economic and political for the protection of human life, property and ensuring equality and freedom.
  • As the Interim Constitution of Nepal 2007 has already incorporated the rights to health, education, culture, employment and social security as fundamental rights of the people, special law based on the ICESCR should be prepared and promulgated immediately.
  • Human rights activists, occupational groups, lawyers, journalists, NGOs, INGOs and the civil society should be cautious in this regard.
  • Government, parliament, human rights activists, occupational groups, lawyers, journalists, NGOs, INGOs and the civil society should be careful to implement economic, social and cultural rights to avoid discrimination on the basis of region, race, religion, gender, ethnicity and language.
  • Main responsibility to implement the Covenant ratified by a State goes to the government. Strong commitment of the government is necessary for this. The State party cannot be spared from the responsibility for any reason. As the human rights are interdependent, it is necessary to respect, protect and fulfill all the rights to ensure dignified life for the people.
 

Press Release

Impunity aggravated by promotion of those alleged of serious human rights violation, failure to prosecute and case withdrawal in Nepal 11 October 2012, Kathmandu, Nepal. Nepal government has failed to bring into justice system and prosecute those who are alleged of inv... Read more
International Justice Day-2012, FOHRID Urges Government of Nepal to ratify the Rome Statute of ICC 16 July, 2012, Kathmandu, Nepal Every year on 17 July the world celebrates International Justice Day (IJD) to commemorate the adoption ... Read more
Nepal: Criminalize torture and end impunity June 25, 2012, Kathmandu,Nepal We are observing June 26, 2012, the UN International Day in Support of Victims of Torture. The expressio... Read more
Appeal for immediate accession/ratification of the OP-ICESCR by Nepal Government 07 May 2012 (2069 Baishakh 22), Kathmandu, Nepal Nepal Government should immediately accede/ratify to the Optional Protocol to the Inte... Read more
Nepal must strengthen prosecution against impunity 12 January 2013, Kathmandu, Nepal. UK authorities arrested Nepal Army Colonel Kumar Lama on 3rd January 2013 from Sussex for his alle... Read more
Appeal to Nepal government to become accountable to respect and protect people's right to life 28 January 2013, Kathmandu, Nepal   Similar to the previous years, people in terai faced severe cold wave this winter also, ... Read more

Internship

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