The past year has seen the firm establishment of practices that concretize such identities. In the ubiquitous development circuits, attendance of the “excluded groups” is duly checked off – quota reached/inclusion addressed/development underway. This is even as funding donors worry about inclusion “going too fast” (without a critique of the manner in which this “inclusion” is taking place) and the possibilities of ethnic strife. The potential of the bordering of identities with debates on federalism furthered claims to solidified, internally coherent and unproblematic categories.
In the meanwhile, in the circles of critically minded women activists, fears have been expressed that the women’s movement has been “eaten” by the identity movements – with women from the excluded groups more likely to identify with their men-folk and their communities, then with “women’s” rights broadly defined. None the less, various women’s groups maintained pressure on the Constituent Assembly (CA) for their rights, the cross-political party women’s caucus in the CA strategized and lobbied and activists continued to monitor and advocate for the rights of women.
In the midst of the flurry of activities to make sure women’s rights are included in the new constitution, the importance of the draft by the CA’s Fundamental Rights Committees appears to have been missed. It is unclear whether this report is a result of a misplaced faith in the ability and political principles of our CA members, and/or negligence or a deliberately planned outcome by “experts” and/or a result of the “everything is up for negotiation” atmosphere that reigns. What is obvious – as a recent International Commission of Jurists report on the draft has made clear – is that our most fundamental rights have not been secured.
To give a few examples, if the current provisions were constitutionally enshrined, Nepali citizens would have only partial or, in most cases, no right to the following: the unconditional right to life and the right against arbitrary deprivation of life; the right to ‘security of the person’ and the right against arbitrary detention; the right to be brought immediately before a judge upon arrest regardless of the reason for the arrest; the unrestricted right to legal counsel; the right against enforced disappearance and the unrestricted right to have access to family members upon detention; the right against torture or other cruel or inhuman ‘punishment;’ the right against forced or coercive labor and the right to substantive - not merely ‘formal’ - equality.
To be noted is that restrictions have been put on such fundamental rights as free expression, assembly, and association with caveats that allow the government – that is, Nepali politicians of the present and future – to decide via law what are vaguely defined notions of threats to “harmony,” “the interest of the general public,” “law and order” “public purpose” etc. International law applicable to Nepal requires that any such restrictions be precisely prescribed for reasons accepted under international law and strictly and demonstrably necessary in a democratic society. However, in the current draft, instead of recognizing human beings as agents equal in dignity, and human rights as those aspects of dignity that are inherent, power is given to the State to “gift” (and therefore also take away) these rights. Human dignity is not subject to negotiation. And that is why the fundamental rights draft is so dangerous and unacceptable.
It is strange that in this context there has been so little outcry. Janajati activists burnt this draft on the grounds that it didn’t include their demands. The problem, however, needs to be contextualized further: under the current draft of the fundamental rights concept paper, Janajati (or for that matter women/dalit/madhesi) activists asking for their rights can be arrested for disrupting “social harmony” (through the future “making of laws”), tortured (without any explicit constitutional or, at the moment, legislative protection), held under “preventive detention” for “threats” to “law and order” and denied access to legal counsel and review by the judiciary within 24 hours with accompanying restrictions on access to information by family members. Not exactly the new Nepal envisioned.
As women, janajati, madhesi, dalit, and other newly formed and forming identity group seek to ensure their own particular rights are included – efforts that need to be pursued –it is imperative that the larger picture of our fundamental human rights as citizens of Nepal is not lost. These rights cannot but be women’s rights. These rights cannot but be the rights of janajatis, dalits, madhesis and all the fluid identities of the everyday lived lives of Nepalis.
Regardless of what identity category we currently most identify with, we need to ensure that our basic human rights are secured and protected no matter what government and what persons are in power. UN criteria on fundamental rights are available. We all need to push for them to be incorporated.
Seira Tamang is a political scientist associated with Kathmandu-based think-tank and research institute Martin Chautari.
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