Binda Pandey,The Chairperson of the Constituent Assembly Committee on Fundamental Rights and Directive Principles

Binda Pandey

Suggestions Given by the People had Naturally Heartened us in Increasing the Number of Fundamental Rights

The draft report submitted by your committee has provisioned so many fundamental rights. Are there particular reasons behind the inclusion of so many rights in the draft report?

Historically viewing fundamental rights have been increasing. The constitution of Nepal 1990 had provisioned 12 fundamental rights and the Interim Constitution 2007 has 23 and with the additional 10 fundamental rights, 33 fundamental rights have been provisioned in the draft report. Such increase in the number of fundamental rights has nexus with the question whether or not to make the matters of peoples concerns the constitutional rights. Internationally, human rights are viewed as the rights of first, second and third generations. Initially it was thought that only the first generation rights were fundamental rights. Now, the first generation through the fourth generation of rights can be included in the constitution as the fundamental rights. So, opposed to the initial views that only the individual rights are the fundamental rights, we have reached to the phase where rights of the community have also been considered as the fundamental rights. Such shift in understanding is also responsible for the numerical rise of the fundamental rights in the draft report.

 

Another reason is that in the earlier days, only the civil and political rights were thought as essentially the foremost rights and necessity of an individual and we were not able to recognize the right to food, shelter, education and to live a healthy life as the foremost rights of an individual. As per the suggestions from the people that basic needs of an individual has to be the fundamental rights, following the discussion in the committee over such issue and considering the necessary elements for an individual to live securely, we included the rights in the draft which were not provisioned in the Interim Constitution. So, it is not unnatural that fundamental rights have been increased.

Did the suggestions collected from people have any roles for the increase?

We took the suggestions collected form the people as the base of determining fundamental rights. So, the suggestions from the people were also responsible for the increase. We determined the fundamental rights on the basis of constitutional practices of Nepal, international practice and our commitments, continuous movements of Nepali people especially the Janaanadolan II and the issues established by them and on the basis of the suggestions collected from people. Naturally, the suggestions of the people helped determine fundamental rights. The suggestions brought to the committee by all the 40 suggestions-collecting- groups of the committee showed that people have demanded food, shelter, clothing, education, health, security and their participation. Of the demands suggested by the people, many of them were not provisioned even in the Interim Constitution. So, the suggestions given by the people had naturally heartened us in increasing the number of fundamental rights.

Rights to employment, and shelter, to take some examples, have been included as the fundamental rights. Are not these the developmental aspects to be gradually fulfilled by the state as per the economic capacity of the state?

Thinking that rights keep on increasing over time, we cant wait for another 5 years to include right to shelter by including right to employment in our constitution as the fundamental right this year. We included such rights in the fundamental rights with the view that the suggestions given by people and the issues established by the latestLoktantrik movement and the concerns of basic needs must be included in the fundamental rights. These rights are not to be provisioned bit by bit. However, implementation will take place as per our capacity. So far as employment is concerned, it has been made the fundamental rights and it has also been written there that employment and condition of it will be as defined by the law. By the time one seeks rights; state will have made law and have defined employment and its conditions. This debars me form seeking employment as per my capacity and qualification right now.

 

Similarly, government might define child-caring, domestic work as well as working in the field and geriatric care as the employment and if the government states that only domestic work is available for one, either s/he has to accept the work or s/he cant claim unemployment allowance. This should be the provision for the initial phase; however, as the state increases its capacity, it has to provide with employment opportunities to its people as per their capacity. The notion that one has to be employed as per their expertise and graduation will be possible only step by step. Now we have to take such provision as the basic step. We have stated that education up to grade 8 will be free but compulsory. However, education for free doesnt mean that the state can manage right now. “Free- of-cost” too has to be relatively defined as per the capacity of the state. State is not equipped for the purpose right now. State has to establish infrastructure Parents have responsibility to send their children to school and shouldnt pay fee for sending children to school. This is what we call free and compulsory education following the promulgation of constitution. Provided that state increases its capacity we can come up with other policies, we can distribute text books gratis up to grade 8 when the capacity of the state keeps on getting better. As the capacity of the state gets further better, each students will get everything needed to attend school for free. Things will be implemented gradually.

Do you think the state keeps capacity to fulfill all the rights included in the draft report?

State has to be able to. State has to be able to fulfill the minimum rights. We are incapable not because we dont have means and resources but because we havent been able to manage them properly. Another important thing is that government alone doesnt have sole responsibility to translate the provisions of the constitution into implementation. Each citizen has responsibility in implementing the provisions written in the constitution. Citizens have to acknowledge they too have duty on their part and they should be able to respect it. They should be aware that only by respecting constitution they will be respected. Only on this condition that we will be able to implement the basic issues mentioned by us and the state will have access and capacity.

Earlier too there were the provisions of fundamental rights. Given the situation that people couldn?t fully utilize those rights, how to be assured that people will be able to utilize them following the promulgation of constitution?

Proper management and mobilization of resources and promotion of awareness among the people that they too have responsibility in such activities will make it viable. If we are unable to make people acknowledge their accountability, it wont be possible. Many fundamental rights were provisioned in the constitution of 1990; however, implementation was a failure due to absence of political will power. Social engineers only taught about the rights but they couldnt abide by those rights in their own practical lives. We had formulated law against untouchability, questions arise did we implement them? Are we all responsible for non- implementation or not? State cant reach to individual household to teach them against untouchability.

 

Constitution of Nepal 1990 and 2007 provisioned sex based non- discrimination, however, women and girls in every household are still facing discriminations. State is not responsible in such discriminations. Our children are not equally treated. This is due to peoples insouciance and negligence. If I cant treat my sons and daughters equally state alone cant avoid such discriminations by enshrining rights in the constitution. Written provisions and implementation should go side by side. At least the rights campaigners like we have to practically implement those rights. The forthcoming constitution will be with fundamental duties of the people together with fundamental rights. I feel that attempts of rights campaigners to take rights and duties side by side will make it sure that that fundamental rights provisioned in the draft reports will be implemented.

For the purpose of implementing some of the rights it has been stated that law will be formulated within two years. On what ground can we be assured that law will be made within two years?

Will-power is the base. Provided that we are committed we can formulate law within two years. In the absence of political will power nothing will be possible, even constitution may not be written. Of the fundamental rights included in the draft report, law has to be made in the cases of 12-15 articles in number. These laws will be made by different ministries. If the concerned ministries work with commitment and political will power, things can be accomplished on time. Formulation of laws is solely connected with will power. Endorsed unanimously, the issue of formulating law is on the move, so, ministries dont have to be waiting for the promulgation of constitution. Corresponding ministries can start their works from now on taking the draft report as the base. Will power is the prime matter, showing will power will make it possible that laws will be made within the stipulated time.

What sorts of views had to be churned in the committee? Why couldn?t the committee pass its issues unanimously?

The committee comprises of the members from diverse political backgrounds so it was natural that there were diverse views. Constitution assembly has 25 political parties and in the fundamental rights and directive principle committee there are the members representing 11 political parties so it is again natural that they are with differing views. Amidst differences it is impossible that things will be passed unanimously. The positive aspect was that this committee faced very few differing views. In many cases differing views were related with selection of words. It was normal aspect. There are differing views on some of the issues like whether or not to provide with compensation at the time of land reforms, whether or not to accept multiparty system and pluralism, whether or not to formulate retroactive law.

On the basis of their rights how will the Nepali people be empowered following the formulation of constitution as per the draft report submitted by your committee?

Compared to the fundamental rights included in the previous constitution, rights have been provisioned in the draft report more progressively. Fundamental rights are linked with every individual. So, a lot of dissatisfactions were also there. Of the 11 thematic committees in the Constituent Assembly ours was the committee to see the most number of dissatisfactions. Fundamental rights are not related with politics. These rights are related with the people of all level and strata so we feel there were numbers of dissatisfactions. Many people showed their concerns and reactions. More than 92 thousands people had sent their suggestions to the committee individually. Including rights in the constitution is not the end in itself as regards empowering people with their rights. If the written aspects are translated into practice, I am sure that we have drafted more progressive fundamental rights. As regards this each citizen has to think what has been written about them in the constitution. People should be equally wary about their role in course of implementation of the rights. Politicians have duty to create environment whereby each individual will have access to the rights. Provided that these things are fulfilled, we can guarantee the rights of the citizens.

What’s your view regarding the remedial aspect of the fundamental rights? What will be the remedial mechanism?

It is difficult to write specifying the place. This is not the issue to be mentioned by our committee. So far, we have to understand that in the cases of violation of fundamental rights one has the Supreme Court to go. It is because of lack of access that one hasnt been able to seek his rights. A poor person of Jumla district cant be expected to go to Supreme Court for his rights. People have been given rights now but in the cases of violation of those rights they dont have easy remedial access. There will be the Supreme Court following the promulgation of new constitution too; however, whether or not the district courts can be entrusted with power to look into the cases of violation of fundamental rights of the people is still a matter of discussion. State court will have this right. Under rights to justice we have mentioned that state will provide with free of cost legal support to the poor family. There has to be the provision that state will help the destitute family providing with access to justice. The constitutions in the past were made by some few persons so people didnt have concern towards them. Constitution this time is being written by the representatives of the people where people do have their concerns and interests. Earlier, it was provisioned that only the perpetrators were taken action but this time apart from punishing the perpetrators we have provisioned that the victims will also be compensated. Rather than getting pessimistic in retrospection, we are many steps ahead now learning lessons from the past. If the provisions in the draft are included in the constitution and implemented honestly Nepali people will be fully empowered in terms of their rights

Even after one year extension of the tenure of the Constituent Assembly (CA), current political stalemate has not been broken and political parties are still divided. How do you analyze the present situation?

The differences of opinion among the political parties, especially the acridities and politically connected disputes seen among the parties lately have totally obstructed the constitution making process taking us back to the situation before 28 May. There have also been many attempts to beat such obstructions; however, problems havent been solved. Recently, the long existing disputes among the political parties have been manifested differently coming to be connected with formation of the government. Viewing from the angle of succeeding the ongoing peace process and writing constitution on time, this is not a desired situation in the country.