Fundamental rights cherishes basic values, Nepal embarks new beginning in South Asia


jivesBy–Jivesh Jha

Although the member states of South Asian Association for Regional Cooperation (SAARC) has an epitome of perseverance and persistence that the Fundamental Rights (FR) are the elementary rights and inviolable, the Constitutions share differing as well as unanimous provisions on number of occasions.

The Constitutions of SAARC states maintain that right to life & liberty, freedom of speech, freedom of faith, right of fair trial, equal protection of law, and so on, should be regarded as inviolable under all conditions.

The states through their respective legislations have asserted that there should not be a free hand of legislature in curtailing the FR. Further, the states are at even to opine that the FRs are the Magna Carta of any Constitution, meaning the statute will look like a toothless tiger in absence of FR.

The youngest Constitution of the world which was enforced on Nepali soil on September 20 last year offers a long list of FR in its part-III, ranging from Article 16-48. Like, the other Constitutions of SAARC, the Nepali statute also corroborates that rights to equality, life & liberty, right of free legal aid, right to information, rights of privacy and right to constitutional remedy falls within the purview of FR.

Accepting a complete responsibility, the newest Constitution of the world while bringing its sparkling features, guarantee that rights of women (Article 38), rights of Dalit (A-40), rights of senior citizens (A-41), rights to equality and equal protection before law (A-18) in an enumerative form and rights to food (A-36) shall be the important FRs as they possess an intrinsic value.

In a bid to play an instrumental role in mainstreaming the under privileged sections of people, the Nepali Act-2015 ensures that the oppressed groups will have right to participate in state affairs on the basis of principle of proportional inclusion. In a major breakthrough, the Nepali state became the first country in South Asia to ensure one-third representation of women in legislative bodies. With a view to put a stop at gender bigotry, the Constitution under Article 38 guarantees that every woman shall have equal right to lineage without any gender discrimination. Similarly, the Article further explains that rights relating to safe motherhood and reproductive rights fall within the ambit of FR.

Coming down heavily against the patriarchal system of society, the Nepal Constitution ensures that the both spouses shall have equal rights in property and family affairs.

Similarly, right of free legal aid has been guaranteed under Article 20 (10) for the indigent justice seekers so as to not let them impatiently keep staring at the walls of courts for legal representation. However, the same right has not been expressly mentioned as a matter of FR in Indian as well as other SAARC Constitutions.

The right of free legal aid has been ensured under Article 39A in Constitution of India as a subject of Directive Principle of State Policy (DPSP), not as a FR. However, through judicial activisms, the Apex Court of India on number of occasions has observed that right to free legal aid falls within the ambit of FR and it’s a concern of right to life and liberty as envisaged under Article 21.

Nonetheless, the critics argue that proviso—‘as per law’—used in Nepali statute has everything to do with limiting the horizons of FR. “The Bare Act’s many provisions clearly say that FR is available to the people but it will be realized according to law. The Part-III confers fundamental rights but fails to confirm their existence as the provisions clearly say that rights will be enjoyed in accordance with law. And, it looks like fundamental rights are the gifts from the state to citizen,” says Dipendra Jha, an eminent advocate of Supreme Court, Kathmandu.

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While talking about the unanimity of opinions, the FR provisions of SAARC Constitutions confirm:

  • Any person shall not be discriminated on any grounds
  • The accused shall be produced before the Magistrate within 24 hours of such arrest
  • The person detained in custody shall be informed about the grounds of arrest
  • A person shall not be punished twice for the same offence
  • No person shall be prosecuted and convicted retrospectively
  • Prohibition of self incrimination
  • Right to equality and equal protection before law is inviolable
  • Right to life and liberty, speech & expression,  and right to move
  • Right to education
  • Right to privacy

However, when talking about the Indian Constitution, the oldest Constitution in SAARC, the legislation in its Article 21 expressly confirms that all the rights which are necessary for living a dignified life falls within the ambit of right to life and liberty. The Article 21 is of widest amplitude and it covers a variety of rights lying on the bedrock of natural justice. The provision also clarifies that all the rights falling within the purview of natural justice is the subject matter of FR.

Similarly, the cream of the crop of the Indian Constitution is that it provides remedies for enforcement of FR under Article 32, which is within the Chapter of FR. The said provision is of intrinsic value as it lay down that the Supreme Court (SC) is empowered to issue any directions, including writs, for enforcement of any fundamental rights. In this way India is a step ahead in South Asia to ensure the right to constitutional remedies as a matter of FR.

The scholars are of the view that placing the remedial procedures in some other Chapter but not within the Chapter of FR is an unhealthy approach. “There leaves clouds of suspicion regarding the implementation of FR when it comes to learn that the enforcement procedure is not enshrined within the sphere of FR Chapter. It appears that as if the implementation of FR has been left at the mercy of legislature,” opines Pramod Tiwari, Faculty of Constitutional Law at Uttaranchal University, Dehradun.

“Its accepted on all hands that right without remedy is meaningless. The procedure of remedy should also be within the boundary of FR Chapter but sadly enough the legislations of Afghanistan, Bangladesh, Bhutan, Pakistan, Maldives, Nepal and Srilanka have left the matter of implementation on the will of legislature,” maintains Abhiranjan Dixit, Faculty of International Law at Uttaranchal University, Dehradun.

Nevertheless, expressing a differing view, “There is a well established tradition that the Court would play a pivotal role in enforcing the FR. Moreover, the Nepali statute under Article 47 expressly provisions that the state shall make further provisions within three years of commencement of Constitution-2015 in an endeavor to enforce the fundamental rights in a material sense,” insists Bishal Khanal, Faculty of Constitutional Law at Kathmandu University (KU), Dhulikhel. “As the Court has to play a significant role in enforcing the FR, the remedial procedure enjoys similar currency—be it placed in FR Chapter or in some other Chapter.”

When asked what led the Nepali statute to recognize the rights of Consumers as FR, Professor Khanal said, “In modern time it’s unanimously accepted that the rights relating to civil, cultural, political, economic, and social clusters fall within the ambit of FR. Moreover, it’s accepted on all hands that the fundamental rights should recognize the spirits of Human Rights.”

However, blowing the winds in a contrary gesture, the Pakistan Constitution offers no room for constitutional remedies in FR Chapter. The Constitution’s FR Chapter does not provide any provision specifying how the rights conferred under Article (8-28) will be implemented and to whom a person should approach after violation of his rights.

“The SC of Pakistan is empowered with original jurisdiction under Article 184 to play an instrumental role in enforcing the FR. Moreover, one can move the High Court under Article 199 as well on witnessing the violation of his FR. As judiciary is considered to be the strongest pillar of democracy, the ample powers have been vested in it to enforce the FR and play an influential role in preserving the rights of persons,” maintains Rabia Razzaq, Assistant Professor of Constitutional Law at Punjab University, Lahore, Pakistan.

When asked if the FRs are available to Hindu minority and Sikh minority groups residing across the Pakistan, she claimed, “The fundamental rights are available to all citizens of Pakistan immaterial of any caste and religion.”

Even as the Pakistan Constitution as well as statutes of other Islamic countries of South Asia forbids inhumane treatments, the public stoning and stripping is still gaining ground in the Islamic countries. When asked about its legitimacy, Professor Razzaq said, “The law books pay disregard to the cruel and inhumane treatments but it’s implementation is still in question. However, under criminal jurisprudence, it’s a ‘Hadd’ punishment.”

Meanwhile, Afghani Constitution under Article 58 ensures that any citizen can move the National Human Rights Commission (NHRC) on infringement of his FR. Similarly, Bangladesh Constitution under Article 44 read with Article 102 provides that anyone can move the High Court on violation of his FR. The Constitution bars anyone to directly move the SC.

However, the Constitution of Nepal under Article 46 read with Article 133 or Article 144 provides that anyone can move SC or HC for remedy. The statute of India and Bhutan share a similar story like Nepal.

On the contrary, the Maldivian Constitution simply says that application should be served before the court to obtain remedy, Article 65.

Nonetheless, the Srilankan Constitution envisions that the SC shall have the sole & exclusive jurisdiction to determine any question relating to infringement of FR, Article 17 read with Article 126 (1). The provision further says that the petition on violation of FR shall be disposed within 2 months from the date of filing of such petition, Article 17 read with Article 126 (5). Perhaps, this is the sparkling provision of Srilanka which makes it stand on a different footing in South Asia as none of the Constitutions of SAARC have shown this much level of allegiance in allowing the aggrieved party to seek his remedial rights within a given time frame, ruling out the possibility of lengthy court procedures.

Unlike India, the other South Asian countries bestow right to property as a matter of FR. However, right to information has been widely taken as a FR by all Constitutions. Regarding the enforcement of FR is concerned, the Constitutions unanimously herald that writs can be issued against the second party who is accused of infringing one’s FR. And, the Constitutions also guarantee that compensation will be awarded to the aggrieved.

Unlike, other South Asian countries, the Afghani Constitution makes it clear that the FRs are available for their citizen only. The Constitution under Article 57 provides that the foreign nationals in Afghanistan should be obliged to respect the laws of Afghanistan.

“The Afghani Constitution is confining the basic values of FR by making it exclusively available for their citizen. We are no more living in a police state, neither following principles of sovereignty laid down by Sir John Austin, who used to say that law is the command of sovereign and sovereign is an indivisible determinate person to regulate the conduct of their fellow citizens. We adopt the jurisprudence of global village where it’s envisioned that the ideals of humanity sees no boundary. And, prosecution of human rights shall be forbidden, meaning anyone can enjoy his basic FR immaterial of his nationality,” insists Mohit Negi, Assistant Professor of International Law at Siddhartha Law College, Dehradun, while showing dissatisfaction with Afghani Laws.

Meanwhile, the South Asian Constitutions are at odds regarding the recognition of right to vote as for some it’s a FR while for others it’s a civil rights. The Constitution of India, Nepal, Bangladesh, Pakistan, and Srilanka firmly believe that right to vote cannot be taken as a FR. However, Constitution of Afghanistan (Article 33,), Bhutan [Article 7(6)] and Maldives (Article 26) envisage that it’s not a civil right rather a FR.

Nepal Constitution’s Progressive FR Provisions:

Unlike other Constitutions, right to equality and equal protection of law (Article 18) is provided in an enumerative form. The Article expressly mentions that there shall be no discrimination on the ground of origin, religion, race, tribe, sex, physical condition, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology or any other such grounds.

“The provision has succeeded enough to acknowledge the spirits enshrined under the legal maxim of ‘ejusdeum generis’ which means ‘of like nature, i.e., the constitution ensures that no one shall be discriminated on the basis of some other like nature clusters,” maintains Pramod Tiwari, Faculty of Interpretation of Statutes at Uttaranchal University, Dehradun.

Similarly, exploring the injunction of natural justice, the Constitution under Article 20 provides right to justice. Unlike other South Asian Constitutions, the Nepali statute under the Chapter of FR provides that the right to free legal aid shall be a FR. Though Nepal ensures this right from the very initial stage, the other Constitutions acknowledged the essence of it in very latter stage. Along with it, Article 21 (2) envisages that the victim of crime shall have the right to social rehabilitation and justice with compensation as provided for by law.

Meanwhile, right to privacy, right of clean environment, right of language & culture, right of women, and rights of Dalit, has been provided under Article 28, Article 30, Article 32, Article 38, and Article 40, respectively.

“The Nepali legislature has enacted FR provisions by taking all the international humanitarian laws into account, which is a welcoming move,” believes Abhiranjan Dixit, Faculty of Constitutional Law at Uttaranchal University, Dehradun.

Moreover, “When I found that all the rights of women have been declared as a matter of FR, it simply piqued my mind. What I believe that A-38 is the most charming provision of the statute and Nepal could become a paradise for women if the provisions are implemented fairly,” argues Mrs. Pallavi Gusain, Faculty of Human Rights at Uttaranchal University, Dehradun.

Further, Nepal sets aside 33% of parliamentary seats for women through legislation as envisaged under Article 84(8). However, India is also discussing about adopting the similar arrangement since 1996. Sadly enough, Women’s Reservation Bill has become a story so far in India as it’s pending in House of people since 1996.

In a shocker to the ambitious provisions, the learned sections of society argue that the effective implementation of FR is still a big question.

“As action speaks louder than words, the need of hour is to realize the dreams of legislation by working with full of honesty, diligence and commitment,” added KU Professor Khanal, when asked to critically analyze the FR provisions.  The essence of FR provisions would find a consonance in true and material sense when the state would succeed an inch to douse the fires of conflicts of interests and implement the FR without any hassle, further said Khanal. “As the new Constitution was born with partial political consensus, it may have to face numerous difficulties with the passage of time,” argued he. Noted, the document was drafted without taking a section of political force [Madheshi parties] into confidence.

“Although the new statute offers ample amount of FR, its effective implementation is something a tough nut to crack. The experts and lawyers believe that it’s an uphill task for the state to deliver the FR in a pragmatic sense. The social, cultural and economic rights are not only related to legal provisions but it has a strong reliance on country’s economy, education, and development and so on. The statute has succeeded to turn a new leaf but the learned sections of people worry what if the state turn a deaf ear in enforcing the FR,” said Navin Khatiwada, a Kathmandu-based legal journalist of Republica Daily.

Distinctive FR provisions in South Asia:

  1. Islamic Republic of Afghanistan

 

Article (22-59)

  • The debt shall not curtail or deprive the freedom of Individual, Article 32
  • The right to elect and be elected, Article 33
  • Free education shall be offered to the citizens in state educational institutions up to BA level, Article 43
  • The medium of instruction shall be in the language given by mother for effective teaching, Article 43
  • The state shall devise and implement a unified educational curricula based on tenets of sacred religion of Islam, Article 45
  • It shall be the national duties of every Afghani to actively participate in the times of war, disaster and other situations threatening public life, Article 49
  • Free medical treatment to citizen, Article 52
  • Financial aid to survivors of martyrs and missing persons, Article 53
  • Defending the country shall be the duty of all citizens of Afghanistan, Article 55
  • Compulsory military service shall be regulated by law, Article 55
  • Ignorance of law shall not be considered as an excuse, Article 56
  • The foreign citizen in Afghanistan shall be obliged to respect the laws of Afghanistan, Article 57
  • NHRC to be approached on violation of FR, Article 58

 

  1. People’s Republic of Bangladesh

 

Article (26-47A)

  • Right to protection of home and correspondence, Article 43
  • Right to move HC for enforcement of FR, Article 44, read with Article 102

 

  1. The Kingdom of Bhutan

 

Article [7(1)-7(23)]

  • Every person in Bhutan shall have the right to material interest resulting from any scientific, literary or artistic production of which he or she is the author or creator, Article 7 (13)
  • A person shall not be subject to capital punishment, Article 7 (18)
  • Right of equal pay for equal value, Article 7 (11)
  • Right to vote, Article 7 (6)

 

  1. India

 

Article (12-35)

  • All minorities, whether based on religion or language, shall have the right to establish and administer the educational institutions of his choice, Article 30(1)
  • No discrimination of educational institution merely because it is under the management of a minority, whether based on religion or language, Article 30(2)
  • FR available to natural as well as juristic persons
  • Right of constitutional remedies, Article 32
  • The SC shall have power to issue directions, or orders, or writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, whichever may appropriate, for the enforcement of any FR
  • The rights guaranteed under right to constitutional remedy (Article 32) shall not be suspended except otherwise provided by Constitution, Article 32 (4).

 

  1. Republic of the Maldives

 

Article (16-69)

  • Freedom contrary to the tenets of Islam not acceptable, Article 16
  • Citizens are free to engage in any conduct or activity that is not expressly prohibited by Islamic Shariah Law, Article 19
  • Protection of environment, right of clean environment, Article 22
  • Everyone has freedom to acquire and impart knowledge, information and learning, Article 29
  • Right to strike for workers to have freedom to stop work and to strike in order to protest, Article 31
  • Everyone has right to protect one’s reputation and good name, Article 33
  • Right to marry and establish family, Article 34
  • Right of pension to one who was engaged in employment with state, Article 38
  • Right to participate in cultural life of nation and to benefit from literary and artistic endeavors, Article 39
  • Compensation on unreasonable arrest, Article 58

 

  1. Nepal

 

Article (16-48)

 

  • No discrimination on the ground of origin, religion, race, tribe, sex, physical condition, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology or any other such grounds, Article 18 (2)
  • No law shall be made for capital punishment, Article 16(2)
  • Rights to communication, Article 19
  • Rights to compensation, Article 21 (2)
  • Right of free legal aid, Article 20 (10)
  • Right to information, Article 27
  • Right to privacy, Artilce 28
  • Right to have a clean environment, Article 30
  • Right to language & culture, Article 32
  • Rights of women, Article 38
  • Right of Dalit, Article 40
  • Rights of senior citizens, Article 41
  • Right to social justice, Article 42
  • Right to social security, Article 43
  • Rights of consumers, Article 44

 

  1. Islamic Republic of Pakistan

 

Article (8-28)

  • Every political party shall account for the source of its funds in accordance with law, Article 17(3)
  • Freedom of speech strictly in the line with glory of Islam, Article 19
  • Right to information, Article 19A

(No remedial procedure for implementation of FR is available in the Chapter of FR)

 

  1. Democratic Socialist Republic of Srilanka

 

Article (10-17)

 

  • No one shall be awarded death penalty, Article 13(4)
  • SC shall have the sole & exclusive jurisdiction to determine any question relating to infringement of FR, Article 17 read with Article 126 (1)
  • The petition on violation of FR shall be disposed within 2 months from the date of filing of such petition, Article 17 read with Article 126 (5)

 

 

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