The Dalits of Nepal and a New Constitution - ConstitutionNet

The Dalits of Nepal and
a New Constitution
45
Recasting Justice: Securing Dalit Rights
in Nepal's New Constitution
- Center for Human Rights and Global Justice
Introduction
The Center for Human Rights and Global Justice (CHRGJ)
at New York University has kindly allowed us to include
the summary which follows of their recent publication,
Recasting Justice: Securing Dalit Rights in the New
Constitution (2008). 62 This is the result of a very
thorough project of study of the Interim Constitution,
and also of the situation of Dalits in Nepal –which was
the subject of an earlier CHRGJ report The Missing Piece
of the Puzzle: Caste Discrimination and the Conflict in
Nepal (2005) 63 . This new report was launched by Jagaran
Media Center in Nepal in April 2008 and it will be
translated into Nepali.
We are very pleased to be able to broaden the range of
people having access to this publication. Following
discussion with the CHRGJ, we make the following small
number of comments:
1. After the recent exercise in distributing citizenship
certificates (2007) more Dalits have the certificates
to which they are entitled. We would suggest that
there are two issues here: the new Constitution
should make it clear that citizenship and the
evidence of it in the form of citizenship certificates
are a right. Separately, it is wrong to give rights
only to citizens unless there is very good reason
(such as the right to vote) (see page 2).
2. The objective of the suggestion that the Constituent
Assembly should “Ensure that the new constitution’s
equivalent to Article 23(2) contains a similar clause
prohibiting the encroachment on the religious rights
of others” is to ensure that Dalits, like others, are
able to exercise their religious rights such being
able to enter temples. So it should be read together
with other recommendations including the
immediately preceding suggestion to “Prohibit the
use of religion to encroach upon all fundamental
rights and freedoms of others” and the suggestion
on page 10 to “Include language that explicitly
prohibits exploitation in the name of religion” –
because of the risk that some people would argue
that their religious rights (e.g. as a Brahmin) includes
treating Dalits as inferior (see page 7). So in the
new Constitution it should be clear which principle
is dominant (and that principle is the dignity of all).
3. While we would agree that the inclusion of
economic social and cultural rights in the Interim
Constitution is to be welcomed (see pages 8-9),
we would note that these rights are weakened by
the provision that most of them are “according to
law” (Article 16(2) on basic health services, Article
17 on education, and Article 18 on social security,
while the right to property (Article 19) it is subject
to the existing law). The new constitution must
use these sorts of formulations only when strictly
necessary and provide for the new Constitution to
be as much as possible “self-executing”, and
include provisions that ensure that other
implementing steps actually take place. It took 17
years for the Right to Information Act to be passed
(and 12 years after the Supreme Court ordered
that a law be passed) – people should not have to
wait so long for the new Constitution to be
implemented.
62
The full report, Center for Human Rights and Global Justice, Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution (New York: NYU School of Law, 2008), is
available on their website at http://www.chrgj.org/projects/docs/recastingjustice.pdf.
63
The full report, Center for Human Rights and Global Justice, The Missing Piece of the Puzzle: Caste Discrimination and the Conflict in Nepal (New York: NYU School of Law,
2005), is available on their website at http://www.chrgj.org/docs/Missing%20Piece%20of%20the%20Puzzle.pdf.