By the Center for Human Rights and Global Justice at New York University School of Law, the Dalit NGO Federation (Nepal), and the International Dalit Solidarity Network. Republished courtesy Smita Narula, NYU.
In creating the new constitution for Nepal, the Constituent Assembly has the opportunity to crystallize the country's peace, advance Nepal's political, economic and social development, and demonstrate a commitment to the inherent dignity of all individuals. In order to fulfill these paramount goals, the rights of all of Nepal's Dalit population - especially women and "lower" Dalit castes - must finally be realized.
In creating the new constitution for Nepal, the Constituent Assembly has the opportunity to crystallize the country's peace, advance Nepal's political, economic and social development, and demonstrate a commitment to the inherent dignity of all individuals. In order to fulfill these paramount goals, the rights of all of Nepal's Dalit population - especially women and "lower" Dalit castes - must finally be realized.
This Joint Statement draws on Nepal's international human rights
obligations to identify how to best achieve the rights of Dalits.
Taking the Interim Constitution as a predictor of future constitutional
arrangements, this Joint Statement also concretely identifies how to
enhance the effectiveness of these constitutional provisions.
Experience in Nepal, and in other caste-affected countries such as
India, has shown that guaranteeing rights on paper is not enough;
strong implementation and enforcement are critical to close the gap
between a constitutional vision and the social reality to date.
Factual and Legal Starting Points
The pervasive caste system in Nepal has a firm hold on society. At its root, it is nothing but a discrimination system in which certain people, by virtue of their birth into a particular social group, are forever branded as inferior. This distinction defines every conceivable aspect of a Dalit's existence, including citizenship, access to land, health, and education. The grossest manifestation of this discrimination system is the practice of "untouchability" - the complete repudiation and segregation from other castes, including a prohibition on touching non-Dalits and their possessions, upon belief that Dalits are "polluted".
Both government and private actors subject Dalits to extreme forms of exploitation, including: community segregation; prohibition on entering public spaces; denial of access to food, water, and land; and coercion into caste-based occupations deemed too "spiritually impure" for "higher castes". Attempts by Dalits to defy this social order are met with punitive violence and social ostracism, and the State frequently fails to prevent or punish such acts.
Moreover, Dalit women and girls endure the intersectional burden of caste and gender discrimination, and they bear the brunt of exploitation and violence. Additionally, Madhesi Dalits in the Southern region and certain Dalit castes like GAINE and BADI are more marginalized and excluded and thereby face further barriers to enjoyment of human rights.
Nepal's International Human Rights Obligations
Nepal's implicit and explicit endorsement of caste discrimination is illegal under international law. Nepal is a party to the following international human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC).
These treaties create binding obligations that must be carried out in good faith to respect, protect and fulfill rights. Core among these obligations are non-discrimination (in both intent and effect) and equality, both formal (de jure) and substantive (de facto).
Nepal's human rights record has been examined by the relevant treaty bodies that monitor the treaties' implementation. These bodies have found that Nepal has not fulfilled many of its international legal obligations, despite the fact that these obligations continue to apply to Nepal irrespective of the political mechanisms that are envisaged in the transition to democracy.
Securing Dalit Rights in the New Constitution
This Joint Statement assumes that the essential articles in Nepal's Interim Constitution will be carried over into the new constitution and makes only the most important recommendations to improve these protections. A new constitution that affirms these obligations should contain provisions to:
Ensure access to citizenship, including the provision of citizenship certificates to Dalits.
Protect the right to equality and non-discrimination for all persons by requiring formal and substantive equality, prohibiting discrimination on any ground, repudiating "utouchability" and racial discrimination, and providing for "special provisions to ensure real equality in the enjoyment of all rights, including employment and education.
Secure the right of Dalits to meaningfully participate in State structures and decision-making, including the drafting of the new constitution and national development activities, on the basis of proportional inclusion.
Prohibit registration of political parties that exclude Dalits in membership, leadership or nomination for political positions.
Guarantee all freedoms to Dalits, including freedom of religion and the right to marry freely, and ensure that there are no unlawful or undue restrictions on these civil and political rights which prevent their implementation in practice.
Ensure Dalits' economic, social and cultural rights, by guaranteeing their justiciability and by specifically ensuring: education rights; the right to a clean environment; the right to the highest attainable standard of physical and mental health and free basic health services, along with the underlying determinants of health, such as water and safe, adequate housing; rights regarding labor, employment and social security; and the right to property, including through ensuring entitlement to tenure or comparable redress in cases where Dalits' land tenure has been compromised by previous discrimination.
Guarantee Dalits' children's rights by: guaranteeing the right to his or her identity and name, as well as the right to be nurtured, to basic health and social security; prohibiting all exploitation of children; and affirming that the child's best interests are the primary consideration in actions involving the rights of children.
Ensure the rights of Dalit women by: prohibiting discrimination and violence against women; requiring all appropriate measures to modify the social and cultural patterns of conduct; and guaranteeing property rights, reproductive rights and rights concerning family relations.
Ensure Dalits' right to be free from torture and other cruel, inhuman or degrading (CID) treatment or punishment by prohibiting all acts of physical and mental torture or CID treatment and ensuring that all such acts are punishable by law and by appropriate penalties which take into account their grave nature.
Realize constitutional rights and protections by ensuring that Dalits' rights are implemented and enforced and that law enforcement, the judiciary and government commissions treat untouchability as a serious crime.
Issues of Implementation and Enforceability
The Interim Constitution, particularly through Articles 32 (Right to Constitutional Remedy), 33 (Responsibilities of the State) and 107 (Jurisdiction of the Supreme Court), recognizes that rights must be enforced to be meaningful. To ensure that law enforcement, the judiciary, and government commissions promote rather than undermine rights and consequently treat untouchability as a serious crime, the new constitution should remove unlawful restrictions on rights guarantees and give both citizens and non-citizens the constitutional right to petition the Supreme Court to have a law declared unconstitutional.
The new constitution should also strengthen the national commissions, by providing for the financial autonomy of the National Human Rights Commission and establishing the National Dalit Commission as a constitutional body. These changes will help end impunity for caste-based discrimination and ensure Dalits' real enjoyment of equality, including for those who face multiple forms of discrimination.
Conclusion
In drafting the new constitution, the Constituent Assembly is tasked with the paramount responsibilities of crystallizing the peace after Nepal's prolonged civil war and fulfilling Nepal's international legal obligations to secure fundamental rights. Once the Constituent Assembly has made constitutional protections and guarantees in line with the recommendations above, the State must take further legislative, administrative, budgetary, judicial and educational measures to eliminate and prevent caste-based discrimination in both the public and private spheres and to respect, promote, implement and monitor the human rights of those facing cast discrimination.
Factual and Legal Starting Points
The pervasive caste system in Nepal has a firm hold on society. At its root, it is nothing but a discrimination system in which certain people, by virtue of their birth into a particular social group, are forever branded as inferior. This distinction defines every conceivable aspect of a Dalit's existence, including citizenship, access to land, health, and education. The grossest manifestation of this discrimination system is the practice of "untouchability" - the complete repudiation and segregation from other castes, including a prohibition on touching non-Dalits and their possessions, upon belief that Dalits are "polluted".
Both government and private actors subject Dalits to extreme forms of exploitation, including: community segregation; prohibition on entering public spaces; denial of access to food, water, and land; and coercion into caste-based occupations deemed too "spiritually impure" for "higher castes". Attempts by Dalits to defy this social order are met with punitive violence and social ostracism, and the State frequently fails to prevent or punish such acts.
Moreover, Dalit women and girls endure the intersectional burden of caste and gender discrimination, and they bear the brunt of exploitation and violence. Additionally, Madhesi Dalits in the Southern region and certain Dalit castes like GAINE and BADI are more marginalized and excluded and thereby face further barriers to enjoyment of human rights.
Nepal's International Human Rights Obligations
Nepal's implicit and explicit endorsement of caste discrimination is illegal under international law. Nepal is a party to the following international human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CRC).
These treaties create binding obligations that must be carried out in good faith to respect, protect and fulfill rights. Core among these obligations are non-discrimination (in both intent and effect) and equality, both formal (de jure) and substantive (de facto).
Nepal's human rights record has been examined by the relevant treaty bodies that monitor the treaties' implementation. These bodies have found that Nepal has not fulfilled many of its international legal obligations, despite the fact that these obligations continue to apply to Nepal irrespective of the political mechanisms that are envisaged in the transition to democracy.
Securing Dalit Rights in the New Constitution
This Joint Statement assumes that the essential articles in Nepal's Interim Constitution will be carried over into the new constitution and makes only the most important recommendations to improve these protections. A new constitution that affirms these obligations should contain provisions to:
Ensure access to citizenship, including the provision of citizenship certificates to Dalits.
Protect the right to equality and non-discrimination for all persons by requiring formal and substantive equality, prohibiting discrimination on any ground, repudiating "utouchability" and racial discrimination, and providing for "special provisions to ensure real equality in the enjoyment of all rights, including employment and education.
Secure the right of Dalits to meaningfully participate in State structures and decision-making, including the drafting of the new constitution and national development activities, on the basis of proportional inclusion.
Prohibit registration of political parties that exclude Dalits in membership, leadership or nomination for political positions.
Guarantee all freedoms to Dalits, including freedom of religion and the right to marry freely, and ensure that there are no unlawful or undue restrictions on these civil and political rights which prevent their implementation in practice.
Ensure Dalits' economic, social and cultural rights, by guaranteeing their justiciability and by specifically ensuring: education rights; the right to a clean environment; the right to the highest attainable standard of physical and mental health and free basic health services, along with the underlying determinants of health, such as water and safe, adequate housing; rights regarding labor, employment and social security; and the right to property, including through ensuring entitlement to tenure or comparable redress in cases where Dalits' land tenure has been compromised by previous discrimination.
Guarantee Dalits' children's rights by: guaranteeing the right to his or her identity and name, as well as the right to be nurtured, to basic health and social security; prohibiting all exploitation of children; and affirming that the child's best interests are the primary consideration in actions involving the rights of children.
Ensure the rights of Dalit women by: prohibiting discrimination and violence against women; requiring all appropriate measures to modify the social and cultural patterns of conduct; and guaranteeing property rights, reproductive rights and rights concerning family relations.
Ensure Dalits' right to be free from torture and other cruel, inhuman or degrading (CID) treatment or punishment by prohibiting all acts of physical and mental torture or CID treatment and ensuring that all such acts are punishable by law and by appropriate penalties which take into account their grave nature.
Realize constitutional rights and protections by ensuring that Dalits' rights are implemented and enforced and that law enforcement, the judiciary and government commissions treat untouchability as a serious crime.
Issues of Implementation and Enforceability
The Interim Constitution, particularly through Articles 32 (Right to Constitutional Remedy), 33 (Responsibilities of the State) and 107 (Jurisdiction of the Supreme Court), recognizes that rights must be enforced to be meaningful. To ensure that law enforcement, the judiciary, and government commissions promote rather than undermine rights and consequently treat untouchability as a serious crime, the new constitution should remove unlawful restrictions on rights guarantees and give both citizens and non-citizens the constitutional right to petition the Supreme Court to have a law declared unconstitutional.
The new constitution should also strengthen the national commissions, by providing for the financial autonomy of the National Human Rights Commission and establishing the National Dalit Commission as a constitutional body. These changes will help end impunity for caste-based discrimination and ensure Dalits' real enjoyment of equality, including for those who face multiple forms of discrimination.
Conclusion
In drafting the new constitution, the Constituent Assembly is tasked with the paramount responsibilities of crystallizing the peace after Nepal's prolonged civil war and fulfilling Nepal's international legal obligations to secure fundamental rights. Once the Constituent Assembly has made constitutional protections and guarantees in line with the recommendations above, the State must take further legislative, administrative, budgetary, judicial and educational measures to eliminate and prevent caste-based discrimination in both the public and private spheres and to respect, promote, implement and monitor the human rights of those facing cast discrimination.
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