In a briefing paper released today, and an accompanying letter to Nepal’s Constituent Assembly, the ICJ raises a number of concerns about Nepal’s Draft Constitution.
The Constituent Assembly’s endorsement of a Draft Constitution on 7 July 2015, and the subsequent opening of a 15-day public consultation on this draft, represents a unique and crucial moment in Nepal’s constitutional history, the ICJ said.
But to fulfill the promises of the Comprehensive Peace Accord that ended the decade-long armed conflict and the guarantees of the Interim Constitution it will replace, changes to the drafting process must ensure adequate opportunity for meaningful and inclusive public participation, and amendments to the Draft Constitution are required to protect human rights in accordance with Nepal’s international obligations.
“This 15-day timeframe must be expanded, and provisions of the draft Constitution must be amended, to ensure that the Nepali people have the opportunity to frame a Constitution which guarantees the rule of law, human dignity and enhanced human rights protection,” said Wilder Tayler, Secretary General of the International Commission of Jurists.
In a letter to the Chairperson of the Constituent Assembly on 17 July 2015, accompanied by a detailed briefing paper, the ICJ has made recommendations for changes to both the constitution-making process and text of the Draft Constitution in light of Nepal’s obligations under international human rights law.
The ICJ has underscored that, while the renewed momentum within the Nepali government in the aftermath of the earthquake to finalize and adopt the long-awaited Constitution is welcome, the speed and manner in which the consultation on the first Draft Constitution is being conducted is undermining people’s right to participate.
“Such ‘fast-tracking’ risks delegitimizing the constitution-making process by undermining people’s right to participate in it”, Secretary-General Tayler said. “The government must urgently revise the timetable to ensure that all individuals, including minorities, historically marginalized groups and people in remote areas whose accessibility is further compromised by the rainy season, have the necessary time and resources to meaningfully review and comment on the draft”.
The ICJ has also noted several provisions of the Draft Constitution that must be amended to fully comply with international human rights standards and to protect the rule of law.
The ICJ’s analysis of the provisions of the Draft Constitution on citizenship, fundamental rights and judicial independence, in light of Nepal’s international human rights obligations, found that:
- The citizenship provisions are vague and discriminatory, and risk making people stateless;
- Non-citizens are excluded from key rights entitlement and protections;
- Several rights, including women’s rights and key economic, social and cultural rights, are not adequately protected;
- Restrictions on the rights to free speech, expression, information and press freedom, as well as the rights to freedom of association and assembly are broad and vague and do not conform with international human rights standards;
- Provisions on remedy for human rights violations are lacking;
- Protections of the independence of the judiciary are weak and inadequate;
- Provisions on emergencies and consequent restriction of rights are overbroad.
“Amendments to the Draft Constitution to address these concerns, among others are needed if Nepal is to adopt a strong and progressive Constitution which safeguards the rule of law, human rights and the independence of the judiciary, consistent with the country’s obligations under international human rights law,” Tayler said.