-By experts team,
Nepal Council of World Affairs (NCWA)
Concept of Human Right and a Brief on its Evolutionary Development:
Human rights are regarded as the birthright of human beings. Human rights (HR) are also considered to be inalienable as all human beings around the world wish to exercise their freedom unconditionally on the basis of equality. This is not a favor or a gift to be provided by the state on concessional terms. It is not a matter of giving, buying, earning, or borrowing. This is a right to be exercised spontaneously and without interference by all human beings. Hence, it is also termed as the natural right of mankind. In some cases, even though the laws of the state do not fully respect or protect human rights, every citizen of the state can automatically imbibe the spirit of human rights.
The concept of HR, evolved as an outcome of the civilized society, is guided by the principle of natural rights. The very concept of HR as a fundamental right supersedes all the state laws that ignore the significance of human beings. Human beings are naturally entitled to such rights as can be applied for the protection of inherent abilities, traits, and qualities essential to making human life meaningful. HR, a collective expression of common and fundamental rights of all the people of the world, are considered indispensable, natural and inherent rights. Hence, HR are regarded as universal, indivisible and inalienable. There is a universal notion that these rights should not be violated by any group or organization of the state.
Human rights are respected and protected only in a democracy. Democracy and human rights are synonymous. In the absence of one or the other, both do not exist. Without democratic governance, human rights are inconceivable and without respect for human rights, democracy cannot thrive. A peaceful society cannot be established without proper respect for and protection of both human rights and democracy. The concept of HR has not evolved suddenly in modern human civilization. Along with the evolution of human civilization, it has also been evolving gradually. The first credit for the development of HR goes to the Magna Carta- the Charter of British Civil Rights. In 1215 AD, in world history, there was a written agreement between King John of Britain and the people about the division of power. The agreement mentioned the rights of the people. The same agreement, called the Magna Carta, is considered to be the first written human rights document. The Magna Carta clearly stated that parliament had the power to make laws, that the king could not impose any taxes without the approval of parliament, and that there should be an independent judiciary and the supremacy of law.
After a long struggle between the king and the people of Britain, a document called the ‘Bill of Rights’ was issued in 1689 to define and limit the rights of the king. This is considered to be the first social agreement between the king and the people. In 1776 AD, the United States of America also issued the “Declaration of American Independence incorporating the fundamental principles of the British ‘Bill of Rights’. Similarly, in pursuance of the belief that every human being has the right to freedom and self-determination, French Revolution was accomplished in 1779, and the basic concept of human rights was developed based on the declaration of the rights of man and citizen eventually passed by the French National Assembly in 1789.
The League of Nations was formally established on January 10, 1920, to dispel the fear that the HR would be endangered as a result of the growing animosity and rivalry among nations despite significant international efforts towards HR development in the eighteenth century. It incorporated the policies of nondiscrimination, irrespective of race, religion, language or gender. However, all the past efforts towards the achievement of HR and peace were rendered futile in the wake of the two world wars – World War I and World War II from 1914 to 1918 and from 1939 to 1945 respectively.
All human beings are responsible for, and need to ensure equal participation in, the peaceful development of human civilization.
Everyone has the responsibility to respect and honor each other’s rights. In recognition of the need for a global organization to lead the world community for embracing and upholding the fundamental values of brotherhood, peace and coexistence in the wake of two devastating world wars, the United Nations – UN – was created on 24 October 1945. This was followed by a concerted and organized effort to promote peace and human rights.
Immediately after its inception, in the earlier phase of 1946, the UN took the initiative to set up the Human Rights Commission in order to make more comprehensive and explicit arrangements for promoting human rights. In accordance with the spirit of the United Nations Charter, the Commission drafted the International Bill of Human Rights in 1947. The draft was adopted by the UN General Assembly on December 10, 1948, in the form of the Universal Declaration of Human Rights (UDHR).
The UDHR embodying the clear concept and definition of HR consists of 31 articles. Although this Declaration has no direct legal validity, it has been recognized as an international legal mechanism. There is clear provision for the pursuit of civil, political, economic, social and cultural rights. In a way, this Declaration could be perceived as the ‘Gita’ of human rights as it provides a basic framework for all the HR mechanisms adopted by the UN.
The major HR Mechanisms consist of: International Resolutions on Civil and Political Rights 1976, Economic, Social and Cultural Rights 1976 and related optional protocols; Convention on the Elimination of All Forms of Discrimination against Women 1979; International Convention against Torture 1984. The government of Nepal has already become a signatory to about one and a half dozen human rights mechanisms including the above-mentioned major HR mechanisms. Although Nepal, considered to be a leader in South Asia in terms of signing up the HR mechanisms, is being subjected, in reality, to the increasing challenges and criticism of human rights violations.
The Constitution of Nepal and Human rights:
The inherent dignity of all members of the human family and the recognition of their equal and inalienable rights form the basis of freedom, justice and peace. The conscience of humanity is being shaken due to the acts of cruelty perpetrated in utter disregard of and disrespect for human rights. People do aspire for the right of expression as well as for freedom from fear and scarcity. These sensitive thoughts and notions incorporated in the UDHR have inspired Nepalese people to wage a long struggle for achieving democracy, HR and individual freedom culminating in a major political transformation within the country in 1990. The outcome was promulgation of the Constitution of the Kingdom of Nepal, 2047 (1990) acclaimed as a very ideal constitution with provisions for people’s fundamental rights and HR.
As a 5th Constitution of Nepal, the Constitution of the Kingdom of Nepal-2047′ was HR friendly in terms of individual freedom, fundamental rights and human rights. But the constitution was not carried out faithfully by the political parties and other forces. Meanwhile, with the outbreak of the Maoist insurgency, the country fell into a spiral of ensuing strife and violence which resulted in political instability in the country and was eventually followed by the autocratic rule of the king. To end this situation, the seven political parties together with the Maoists signed up a 12-point understanding in New Delhi on November 22, 2005. As an outcome of the people’s movement of 2006, the Interim Constitution of Nepal 2063 was proclaimed to establish peace as well as to transform the country into a federal democratic republican order. The Interim Constitution, in its very preamble, has pledged to abide by the provisions and fundamental principles of HR included in the Universal Declaration of Human Rights (UDHR). Under the Interim Constitution, the country held elections for the two Constituent Assemblies. Since the first Constituent Assembly failed to draft a new constitution, the second Constituent Assembly composed of people’s representatives succeeded in promulgating the constitution on 3 Aswin 2072 (20 September, 2015). It has already been 5 years since the promulgation of the new constitution of Nepal.
‘Fundamental Rights and Duties (Part 3, Articles 16-46) in Nepal’s 2015 Constitution resonate with the basic human rights as included within the UDHR, the HR mechanisms and international humanitarian law. Article 16 of Part 3 of the Constitution guarantees such rights as the right to life of every person and categorically states that no law related to death penalty would be enacted. Similarly, Article 17 of the Constitution states that no person shall be deprived of personal liberty, except in a situation forbidden by the law, and does include: freedom of expression, right to peaceful association without arms and to establish organizations, right to residency in and movement to any part of the country, right to take up employment and professional pursuits, and right to establish and operate industrial, business and professional establishments in any part of the country.
Nepal’s constitution includes a number of fundamental rights not guaranteed by many developed countries. Developed countries do provide more facilities to their citizens than those included in their constitutions, but a poor country like Nepal has pledged to guarantee more fundamental rights in the constitution beyond her capacity to fulfill them. The situation reminds one of a proverbial saying: an elephant has two sets of tusks, one for exhibition and another for hiding’. Nepal’s constitution, although considered to be ideal, does cover so many fundamental rights on paper, but, in reality, the people have hardly been able to exercise those rights as provided for in the constitution. It seems almost impossible for a country like Nepal to fully implement the provisions of individual freedom and fundamental rights as guaranteed in Articles 16 to 46 of the Constitution.
Article 47 of the constitution provides for the implementation of fundamental rights through the enactment of relevant laws within three years of the commencement of the constitution. But even after five years the government and the political parties have been reluctant to enact the relevant laws in accordance with the letter and spirit of the constitution. The constitution, instead of being a decorative piece adorned with glib language and words should be implemented true to its letter and spirit. But there are several questions worth pondering upon. Has the constitution united the country, strengthened the nation and changed the lives of the people by maintaining peace and political stability? Has the country moved along the path of progress or not? What is the status of human rights in the country? Have the people been exercising basic human rights or not? From this perspective, five years of experience may not enough to fully evaluate the success and failure of the constitution. But, as the morning shows the day, outcomes do not seem to be encouraging enough when evaluated against the constitution in practice for a period of five years and the prevailing attitude of the political parties. In terms of the letter and spirit, the constitution gives the impression of being human rights oriented but its application is disappointing.
Human Rights (HR) Challenges in Nepal’s Context Global Challenges:
# although 73 years have elapsed since the promulgation of the UDHR in 1948, the HR situation in the global context continues to remain very much challenging. This is despite the steady efforts of the United Nations (UN) towards developing the concept and definition of HR along with proper development of its legal mechanisms and followed by consolidated efforts towards the preservation and promotion of peace and human rights. Globally, HR challenges are on the increase day by day. Following are the major challenges encountered to protect human rights at the global level:
# rising disproportionate arms race between the powerful nations,
# Indifference of the rich and powerful nations towards humanitarian concerns relating to education, health, and poverty alleviation,
# Widening gap between rich and poor,
# ever growing disparity among the people due to rising illiteracy, poverty, hunger, etc.
# Perpetuation of the state of war and conflict in the name of race and religion,
# Global impact of the current COVID-19 pandemic affecting multiple fronts and areas.
The establishment of the United Nations in the aftermath of the two world wars that spurred destructive processes detrimental to human civilization, and the subsequent positive initiatives did raise hope towards achieving peace as well as the consolidation of human rights We can easily imagine that, in the absence of a neutral global body like the UN, the world today would have been in a much more difficult situation after World War II. However, peace and human rights declarations worldwide continue to be neglected, despite the incessant efforts of the UN, related international organizations, and the democratic governments of the member nations.
Challenges for Nepal:
Looking back, so far as HR challenges in Nepal are concerned, it is believed that the HR situation did improve considerably after the political upheaval of 1950-51 that overthrew the century old Rana regime. However, the succeeding political events proved to be major impediments to improving the HR situation in the country. They were: the royal coup against the democratically elected government in 1960, the 30-year long autocratic Panchayat rule, the King’s autocratic move on February 1, 2005 and the 10-year Maoist insurgency from 1996-2006. The restoration of democracy within the country that followed two political movements – National People’s Movement of 1990 and the People’s Movement of 2006 – created a conducive environment for improvement of the HR situation in the country. Further, Nepal’s Constitution promulgated by the CA in 2015 could be regarded as a positive move towards safeguarding the values and norms of HR. One cannot, however, confidently affirm that there are no more challenges to human rights in Nepal.
The pessimistic attitude and activities of the present majority government, although formed with the overwhelming support of the people, have posed major hurdles to promoting peace and human rights. The human rights movement is also facing major challenges from various actions that contradict the core spirit of the constitution, democratic values, universal declaration of human rights, and opinions expressed by the general electorate in the elections. The mindset and intentions of the government stand exposed due to its insistence to table the following bills, later withdrawn after intense public protest: (i) the Media Council Bill that contradicts the letter and spirit of the constitution, including the values and norms imbibed by the universal press freedom; (ii) the Guthi Bill that contradicts the cultural values and long held traditions followed by the people (later withdrawn after public pressure); (ii) The Constitutional Council Bill which proposed the Council as a fully subordinate organ of the government contrary to the spirit of the Constitution. Promotion of human rights and democracy, thus, faces grave challenges due to such attitude and actions of the government.
Fourteen years have elapsed without any concrete results since the formation of the Truth and Reconciliation Commission and the Commission on Investigation of Disappeared Persons’, considered being the most important links in the Comprehensive Peace Agreement (CPA) accomplished between the Maoists and the government to provide justice to the conflict victims. Both the first time constituted commissions got dissolved without completing their assignments. Recently, some officials have been re-appointed to those commissions. But both the political parties and the government seem indifferent towards providing justice to the conflict victims contrary to the spirit of the CPA. This human rights-related issue is being taken seriously by the international community including the United Nations. It is unfortunate that Nepal has not been able to provide justice to the conflict victims even after so many years. If Nepal’s internal justice system fails to provide justice to the conflict victims, the issue is likely to be taken up by the International Court of Justice. This could become a challenging situation for Nepal in the arena of human rights.
Looking retrospectively at the political conflict in Nepal, the two main entities or actors are the Maoists and the State responsible for creating as well as for containing the conflict situations respectively. It is obvious, the Maoists, as the first party to take up the arms, because of their disagreement with the existing multi-party system of governance, cannot declare themselves victims of the conflict. But the civil society has been articulating their complaint that by including the Maoist cadres associated with the so-called 10-year people’s war within the victims’ list, the state has been ignoring the genuine conflict victims. The real conflict victims are actually those innocent and unarmed masses not concerned with the conflict, and the political party cadres targeted by the Maoists on the basis of their faith. Hence, the definition of conflict victims should have included on a priority basis the general public and the party leaders and cadres. Within this list also fall the civilians killed or injured, the displaced families, the people whose houses and lands have been confiscated and the families who have nothing to do with the conflict. The army and police personnel and the civil servants killed during the conflict should have been assigned the second priority in the list of conflict victims after the general public. Even those state employees who were victimized in the process of carrying out their official duties during the conflict should have been included in the conflict-related package.
The government cannot shirk its responsibility, as a part of the peace process, to reintegrate those involved in the Maoist insurgency in the past and who have now joined the mainstream politics. But there is a genuine grievance that contrary to international norms, Nepal, by only catering to the Maoist leaders, fighters and cadres, has ignored the real conflict victims.
The issue of conflict victims could emerge as a major challenge for Nepal to be confronted in future at the international level.
Since the past few years, human rights concerning migrant workers have emerged as a major HR issue in Nepal. Especially, after the political change of 1990, when Nepal government did open up the international labor market for the unemployed youth, the number of Nepalese citizens going to work in Malaysia, and the other destinations including Gulf countries has increased, and the HR issue concerning the migrant workers has come to the forefront. This issue is becoming more serious day by day. Nepalese youths who enter the world labor market for employment continue to be exploited by the local brokers and manpower agencies at home. Similarly, once abroad, they face a multitude of problems e,g, non-compliance by the employing companies to the contract agreement, not getting proper wages, labor slavery, sexual exploitation of female workers etc. A proper and sensible governmental response calls for the effective mobilization of the Nepalese diplomatic missions abroad. Hence, such problem and other hurdles faced by the migrant workers abroad cover the human rights issue worth serious consideration.
The Constitution of Nepal, Part 25, Articles 248 and 249 provides for formation of the National Human Rights Commission (NHRC) to conduct research and investigation, and to recommend actions against the perpetrators of human rights violations. But unfortunately, the Government of Nepal has been persistently ignoring the recommendations of the Commission to investigate and take action against human rights violations in accordance with the provisions of the Constitution. Perpetuation of such a state of affairs has been a major challenge to protection and promotion of human rights in Nepal. This indicates a lack of seriousness on the part of the government about the human rights issues. According to the NHRC, only 12 percent of the Commission’s recommendations regarding human rights violations have been implemented by the government, and other recommendations remain ignored indicating a dismal picture of the human rights situation within the country.
Recommendations and NCWA’s Role towards Promotion of Human Rights:
The Nepal Council of World Affairs (NCWA), as the oldest independent organization of Nepal, conducts research oriented studies and advises responsible bodies including the government of Nepal on the various aspects of foreign affairs and diplomacy. It is also a fact that human rights are usually seen and discussed in conjunction with foreign affairs. At the UN forum and other international platforms human rights issues are usually deliberated upon by Nepal’s Ministry of Foreign Affairs which amply proves that human rights fall within the ambit of foreign affairs.
Given that human rights issues provide a basis for diplomatic relations between nations in the modern age, it is but natural and logical for NCWA to take keen interest in human rights issues, conduct research and studies as well as hold discussion meetings/ seminars on various aspects of human rights, and provide assistance and suggestions to the Government of Nepal in this regard. Further, it is suggested, under the guidance of Thematic Committee and the Constitution of NCWA, this organization should play a more proactive role : for achieving long term peace in the country through protection and promotion of human rights; and for safeguarding the nation’s interest by establishing reliable diplomatic relations with our neighbors and other friendly countries.
There is a need to raise the general public awareness for building a human rights friendly society through protection and promotion of HR at the grass root level. Citizens need to be made aware about the significance of HR. Emphasis needs to be placed on general HR education. In order to build a culture of democracy and human rights, the subject of HR can be included in the curriculum from the school level which will enable the lower strata of society to be informed about HR. This will also provide adequate information to the general public about HR. Since the people themselves are expected to take a lead in the HR protection, the NCWA can request the government to include human rights in the academic curriculum.
Nepal has not yet ratified the International Criminal Code, also known as the Rome Statute. The Rome Statute is considered to be an important legal mechanism for protection of human rights. If the domestic law of any country fails to provide justice to its citizens, then the citizen can knock on the door of the international court. Hence, Nepal should ratify the Rome Statute, which was drafted on July 17, 1998, signed on the same day and came into force on July 1, 2002. So far, 139 nations have signed the Rome Statute and 118 have ratified it. The political party leaders have so far shown little interest in ratifying the Rome Statute. The human rights groups have been campaigning on the issue. In order to enhance her international image Nepal needs to be more proactive towards ratification of the Rome Statute at the earliest.
The human rights issue of the Maoist conflict in Nepal has not been resolved yet. As per the Comprehensive Peace Agreement (CPA) signed between the government and the Maoists during the peace process in Nepal, the real victims of the conflict have not been able to get justice so far. Due to the ineffectiveness of the Truth and Reconciliation Commission and the Commission on the Investigation of Disappeared Persons set up for conflict era justice, and the lack of will of political parties and the government, conflict-era justice has become a thing of the past.
Immigrant workers in Nepal deserve a place of origin. Millions of young people from Nepal have gone to Malaysia, Gulf countries and other countries for employment. The atrocities that have befallen a migrant worker since he reached his destination country have been a great challenge. Exploitation of labor on a large scale without complying with the labor agreement between the Nepalese side supplying manpower and the other side taking such service, and the agreement between Nepal’s manpower company and the employer company not paying wages for work, giving, instead, torture and harassment, incidents of sexual abuse that have become commonplace is a matter of grave concern. Absence of Nepalese embassies or the labor attaches in all the employer countries, insufficient staff in the existing embassies to look into these problems, and they not addressing the problems of the workers in time have further aggravated the problems.
The NCWA could launch a campaign to address the above problems. In this regard, the NCWA, in collaboration with the National Human Rights Commission, international human rights organizations and other national human rights organizations could play a pro-active role in the field of protection and promotion of human rights.
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# the author is the NCWA team of experts and special thanks to Shri Buddhi Narayan Shrestha-the Vice President of the Nepal Council of World Affairs.
We are highly indebted to the entire team of the Nepal Council of Affairs (NCWA) team of foreign policy experts. Ed. Upadhyaya.
# Our contact email address is: editor.telegraphnepal@gmail.com