The Dalits of Nepal and a New Constitution - ConstitutionNet

The Dalits of Nepal and
a New Constitution
39
that the Government is expected to turn a magic tap
and make water flow into every home. The International
Covenant includes some important ideas that can be also
introduced into the Constitution. These include nondiscrimination
(everyone must have equal access to the
rights), and progressive realisation – that is that the state
(the government) has the duty to move towards full
realisation of the right. And there is also the idea that
the government must use the resources that it has to
realise those rights. It is not expected suddenly to
become rich enough to work miracles. The Constitution
could include the requirement that the state should give
priority to those whose need is greatest. In interpreting
the Covenant other important ideas have been
developed. Especially there is the idea that the most
basic duty of the state is to respect the rights: this means
that the state must not itself interfere with the right to
access to water. Secondly the state must protect that
right from interference by others – this would include
the duty to protect water supplies from pollution, and
over-use. There is a duty actively to fulfil the right only if
people cannot do it for themselves and if measures of
protection do not achieve the right. So the emphasis is
on people being free to satisfy their needs themselves,
with the duty of the state being to support the people
in that. All this could be concisely written into the
Constitution.
Education
Education is another right under the Covenant. In fact there
is a duty to ensure primary education immediately – not
progressively. It would be possible to go further and say
that the right to education includes the right that there
are teachers from all communities. And the right could
also include a right to a syllabus and to school books that
do not portray particular groups in a derogatory light.
Chance to work
The same Covenant includes the right to work and to
decent conditions of work. Many constitutions have
included rights of this sort. The same principles apply:
that the state must try to achieve the fulfilment of these
rights – not by giving everyone jobs but by not standing
in the way of people working, by reasonably protecting
working rights – though positive steps to make work
possible might also be an obligation in some circumstances.
An end to violence against Dalit women
This is a difficult topic. Anyone can see that a statement
in a Constitution that “There must be no violence
against women” will probably achieve nothing. Violence
against anyone is already a criminal offence. The
reasons why violence against women is such a problem
in many countries are complex, being concerned with
culture, economic status, social attitudes including those
of law enforcement agencies and other factors. The fact
that it is complex does not mean it is not a suitable
subject for discussion at the Constituent Assembly. The
message at this point must be: Get the topic on the
agenda of the Constituent Assembly. Do not accept
arguments that this is nothing to do with a Constitution.
Insist that it is a topic worthy of discussion and that there
may be things that even a Constitution can say that are
relevant to the issue.
Access to land for the landless
This is another very complex issue and one that a
Constitution cannot produce any magic solution to. But
again this is something that it is entirely appropriate to
discuss in a Constituent Assembly. The Constitution may
be able to remove some obstacles to land reform: for
example in some countries property rights have stood
in the way of efforts to get land for the landless.
Discussions on such a right must take this into account.
Maybe there is something about governance that creates
problems over land allocation. And if there is a federal
system, the effectiveness of policies on land may depend
on which level of government has the power to make
decisions on this topic, and where the control of resources
lies. The important thing again is to get the issue onto
the agenda of the Constituent Assembly, and insist that
it receives full consideration.
Express recognition of Dalit rights
Dalits face psychological obstacles that communities
in other countries face: that there is an expectation
that Dalits will not be Chief Justice or Prime Minister
or hold other public offices. It is the sort of expectation
that women face in many countries. In drafting their
1996 Constitution the South African Constituent
Assembly devised an interesting approach: as well as
gender neutral language (not a big problem in Nepali),
they went to further to clarify that when they said