Consultation with Constituent Assembly Members for the Protection of the Rights of Minorities, Marginalized and other Backward Groups

March 03, 2015

The draft constitution was prepared jointly by Assoc. Professor Geeta Pathak Sangroula, President, CeLRRd and Ad. Prakash Mani Sharma, President, Pro-Public, and on behalf of the CoCAS team, Ms. Geeta Pathak presented the main issues of the draft, which she said was based upon the essence of national manifesto, and recommendations drawn from CoCAS: She discussed on the preamble, preliminary, citizen fundamental right, responsibilities of the state and the citizens, directive principles and the policies of the state, and structure of the state. The preamble is based on four principles i.e. principle of non- discrimination, principle of equality, principle of equity and established principle, norms and standards of human rights. In the preliminary, the draft gives equal status to all mother languages of Nepal and also makes provision of taking citizenship either from father’s or mother’s name or both. This provision has also recognized the identity of the third sex<br /><br />

With regards to Fundamental Rights, there are altogether 28 rights proposed in the draft. Some of them are as follows: Right to life, Right to identity and dignity, thereby especially emphasizing on the protection of the identity of ethnic, religious and linguistic minorities, marginalized and other backward communities; Right to equality, focusing on positive discrimination, Right against discrimination and racial untouchability, Right to education, language, culture, religion, health ,food, healthy environment ,employment, right to labour (it incorporates special provisions for risks involved , for proper wages of domestic labor and for the eradication of exploitative labour like Haliya, Badhunwa, Kamaiya,  Haruwa, Charuwa, Kamlahari, Balighare, etc), Right of woman, Right to aged citizens ( this provision wasn’t incorporated in previous constitution), Right to social security, Right to social justice ( this provision talks about persons suffering from different diseases), Right to participation ( this provision is added by the discretion of the draft committee), Right against torture ( this provision also talks about the acts which are regarded as torture), Right to constitutional remedy ( this provision talks about the free access for the minorities during filing writ petition as per the Article 107 of the Interim Constitution of  Nepal, 2063).

Next was the comment session from the chairperson of the program, Lalbabu Pandit. He said that the committee he headed has already submitted the draft and it is undergoing revision. Prioritizing more on making discussion on the said draft amongst the stakeholders, intellectuals, community people, he said that we should not forget about eliminating evil practices like Badi, Deuki, Chhaupadi. As far as fundamental rights are concerned, there are certain challenges for example, people nowadays are raising voice for death penalty which contradicts with right to life. Even in the case of right to language, it is found that around 25-30 languages are considered as endangered, and many people are coming with the idea of promoting them as national and/or official languages, yet we need to finalize if it is practical.

Eventually, the presentation was followed by open discussion. Hon’ble Padma Lal B.K. said that the term “Pichhada Barga” is better than the term “Pichhadiaka Barga” because they are deliberately and systematically pushed backward. He also contended that reservation is a concept which has already failed in countries like India, Canada, and USA. Rather the minorities should be guaranteed special rights with compensatory provisions until minorities do not come at the level of other privileged communities. In the case of right to labour, we should not forget the ground labor like sweeper, cobbler etc. Separate electorate is declared in the draft for Muslims, Disabled, Dalits, Women and Minorities, which is good. In the part of social security of disease afflicted persons, besides HIV/AIDS, other diseases and drug afflicted should also be incorporated. Similarly Hon’ble Shanti Jirel said that the use of more than one language as official language is rational; to protect language, we should focus on its practice. She further added that the draft constitution should also address right to labour, trade union right, and elimination of inappropriate and illegitimate labour. Jobs of sweeper, cobbler, vendor and similar others should be treated as respectable jobs.

Hon’ble Gokarna Rai was of the view that Nepal is the country of minorities, as no group has majority. When the state is divided into different provinces, one group may be in minority and another may be in majority and it may eventually create another kind of complexity. So, one should be very conscious about the model of federalism in Nepal. In the aspect of access to land, there are also some challenges. For example: if a person has very limited land and he has let other to farm in that land, as per the notion of ‘Jasko jot usko pot’, that land may be possessed by the second person, thereby causing injustice to the landowner. These kinds of complexities should be addressed. Similarly, Hon’ble  Tilak Pariyar focused on recognizing discrimination and untochability as the heinous social crime and some other comments included recognizing languages of indigenous communities and also symbolic and Braille language as the official languages of Nepal. Mr. Shree Prakash Uprety, Under-secretary opined that the language of the constitution should be gender sensitive such as ‘ancestral property’ is better than patriarchal property, and in relation to right to religion, he said that the draft should also add the issue like if somebody uses force to change somebody else’s religion, it is punishable.

Ms Pathak finally responding to the queries said that the term ‘reservation’ was used in the draft because it came in original national manifesto, and that she did not have the mandate to change any. In relation to the inadequacies of the draft as pointed out in terms of terminologies and concepts and as suggested by the constituent assembly members, she expressed her commitment to incorporate them. With the vote of thanks of Kishor Silwal and the ending speech of the chairperson, the program formally ended.

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