”Points to ponder as the Committee on Fundamental Rights discusses what rights should be inserted in the new constitution”

A Boston-based group Gay and Lesbian Advocates and Defenders announced their “Six by Twelve” campaign on the fifth anniversary of the Massachusetts court ruling that legalised gay marriage, the first state in the United States to do so.

The group has also had success in Connecticut where after a state Supreme Court ruling, the first same-sex weddings took place in November 2008. A state Supreme Court ruling in California in May 2008 also allowed gay marriage, and an estimated 18,000 gay and lesbian couples took advantage of their new rights. The group plans achieving marriage equality throughout New England (meaning the northeastern region of the United States consisting of Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire and Maine) by 2012.

The issue of marriage equality as one of the fundamental rights is being debated in Nepal too. A gay activist, Sunil Babu Panta, is now a member of the Constituent Assembly (CA), which is working to draft a new constitution, and is on the frontline of the Fundamental Rights and Directive Principles Committee. This committee will determine the types of fundamental rights to be incorporated in the new constitution, grounds of (reasonable) restrictions on their (unfettered) exercise, required implementation arrangements, directive principles and policies of the state, special protection regime for certain communities and groups, provisions on citizenship and other related issues.

The committee is already considering creation of six sub-committees, which will do their specialised work on each such issue contributing to the committee-level report. This report will be presented before the plenary meeting of the CA possibly in the next two and a half months. It will provide the basic principles on the basis of which the Constitutional Committee will have to draft the new constitution’s chapters on fundamental rights and directive principles.

In this exercise, the committees not only face a challenge in responding to advocacy groups but also performing a balancing role, which is the most crucial aspect of their business. In case of gay marriage, Nepal’s Supreme Court has already ordered the government to scrap laws that discriminate against homosexuals, and formulate new laws rectifying ongoing discrimination against sexual minorities.

A very unconventional issue in a traditionally conservative society, this issue will need the cooperation of 16 revolutionary Maoist members on one extreme and five Madhesi members on the other to get included in the new constitution’s chapter on fundamental rights as guaranteed basic rights.

The position of the other 21 members from different parties is also not clear in this committee of 43 constitution makers. In such a scenario, a lone gay member will certainly have a tough time in the days ahead convincing this diverse group that they should leave behind the cry-baby phase and come of age in this matter. It is not an easy job, however.

There are other human rights issues affecting a significant part of the national population. When this author led a discussion in the Committee on Fundamental Rights and Directive Principles at its eighth meeting recently, he had a feeling that the committee would face enormous challenges in identifying new human rights to be incorporated in the new constitution as fundamental rights.

There has been much discussion in the country about the rights of indigenous people, Dalits, Madhesis, women and other minorities. One must also not forget minorities like Muslims who were very adamant in making sure that the word Muslim appeared explicitly in some key provisions of the Constituent Assembly Rules adopted on Nov. 16, 2008. The rights that concern them have to be defined with clear meaning and magnitude vis-à-vis each other.

There is often a tendency to forget the remedial aspects of fundamental rights and economic and other infrastructural issues. A number of fundamental rights in the present Interim Constitution (for example, the right to employment and social security) remain as mere symbols because the constitution makers had little strategic thought about how to define them in the text, and make sure that there were explicit remedies if the rights were ever invoked.

If there are no remedies, it doesn’t make much sense to guarantee any fundamental right. Efforts in this area necessarily involve an objective understanding of the capacity of the state to deliver. The problem is not just theoretical regarding most rights that deal with bread, butter and shelter. It is yet to be seen how the committee mentors would be able to convince some members out there that they are not always right when they say human rights have class consciousness, and rights are just collective, social, relative and substantive rather than individual, absolute and procedural. This author has faced this issue recurrently in recent months in his dealings with members of the CA.

The list of human rights in the Interim Constitution needs some new entries, which must be carefully crafted. The right to good government is one such example. The right of every person to be heard, before any individual measure which would affect him or her adversely is taken, has become a must. Others could be the rights of the elderly to lead a life of dignity and independence, and to participate in social and cultural life; and the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

Instead of going for a blanket provision guaranteeing the right to employment, which may not be feasible at this stage of Nepal’s development, the committee members can consider ensuring everyone the right of access to a free placement service in the new constitution. Similarly, the right of access to preventative health care and the right to benefit from medical treatment under specific conditions would do well instead of providing general rights to health with “catch-all” phrases. As to social security, some important protection cases such as maternity, industrial accidents, dependency or old age and the right to social and housing loans could also be covered.

State-sponsored retirement schemes (like provident fund, pension and so forth) for labourers in the unorganized sector based on their own monthly contributions could be a life-saving guarantee for the poor people of this country. This is something that can provide significant moral contents to the constitutional system.

Human dignity and worth precede the constitution. But the fundamental rights meant to uphold them must have adequate constitutional sanctions. The role of some informed members of the committee like Ramesh Lekhak, Pradip Kumar Gyawali and Sunil Babu Panta is going to be very important in the deliberations of the committee. The on-the-ground legal experts that have been put at the disposal of the committee also have a very meaningful role as their facilitators.

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