|
The 1990 constitution establishes
new rights for the people of Nepal, and preserves others guaranteed
under the 1962 constitution.
The thirteen articles of Part 3 provide for the protection of
certain "Fundamental Rights": the rights to equality Articles:-
1) Freedom
2) Press and Publication
3) Regarding Criminal justice
4),Against Preventive Detention
5) To Information
6) Property
7) Cultural and educational right
8) To Religion
9) Against exploitation
10) Against exile
11) To privacy
12) The right to constitutional remedy of abuses
13) Some of these articles include specifications of further rights.
For example, Article 12, which begins by prohibiting unlawful
deprivation of personal liberty and capital punishment, goes on to
guarantee five freedoms: (a) freedom of opinion and expression;
(b) freedom to assemble peaceably and without arms; (c) freedom to
form unions and associations; (d) freedom to move throughout the
Kingdom and reside in any part thereof; and (e) freedom to practise
any profession, or to carry on any occupation, industry, or trade.
Other rights are mentioned
elsewhere in the constitution. For example, Article 26/6 says that
"The State shall pursue a policy of increasing the participation of
the labour force, the chief socio-economic force of the country...
ensuring the right to work, and thus protecting its rights and
interests." Some rights are not explicitly designated as such, but
are nevertheless implied and established by prohibitions of their
infringement. One of the most important of such rights, established
in Part 17 and especially Article 119, is that of citizens to form
political parties and participate in elections.
This right to form political
parties, of course, is a cornerstone of the 1990 constitution, the
struggle for which was a primary cause of its coming into existence.
The establishment of such a right in the 1990 constitution required
the elimination of the 1962 constitution's Article 11/2a, a
prohibition on political parties, somewhat paradoxically inserted
into the old constitution's bill of rights. This section of the old
constitution, also labelled "Part 3," was called "Fundamental Duties
and Rights," and began with Article 9, "Fundamental Duties of the
Citizen," which required "devotion to the Nation and loyalty to the
State," along with exercising one's own rights with regard to law
and the rights of others, as duties of every citizen. This article
on duties was dropped, making Part 3 of the new constitution purely
a bill of rights.
Many of the rights guaranteed in
the 1990 constitution are carried over from the 1962 constitution.
These include the rights to equality (old constitution Article 10,
new 11); freedom, including a further specification of five freedoms
as in the new constitution (old Article 11, new 12); a right against
exile (old 12, new 21); against exploitation (old 13, new 20); to
religion (old 14, new 19); property (old 15, new 17); and
constitutional remedies (old 16, new 23). Fundamental rights not
specified as such in the old constitution, but added to the new,
include freedom of the press (new Article 13); the right against
preventive detention (15); the right "to demand and receive
information on any matter of public importance" (16); the cultural
and educational rights of "every community residing within the
Kingdom of Nepal" (18), and the right to privacy (22).
Important changes have also been
made in the provisions of some of the articles carried over from the
1962 constitution dealing with these fundamental rights. For
example, a provision for affirmative action legislation to "protect
or promote the interests of" the disadvantaged has been inserted
into Article 11, along with a prohibition of caste discrimination
against untouchables and a guarantee of equal pay for the same work
by men and women (11/3-5). Article 12/1 gains a prohibition on
capital punishment, and Article 12/2e substitutes a guarantee of
"freedom to choose any profession, occupation, trade or to start any
industry" for the old constitution's freedom to acquire, enjoy or
dispose of property (old article 11/2e), a right guaranteed
elsewhere in both documents. Article 14 establishes as a separate
right the freedom from police and judicial abuses formerly included
as subsections of the right to freedom (old Article 11/3-8); and it
adds a new prohibition on torture and other cruel, inhuman or
degrading treatment (Clause 4). Article 19, Clause (2) adds
guarantees of rights of religious communities to those previously
granted to individuals; and Article 20/4 protects children agains
hazardous employment. All in all, the 1990 constitution provides for
substantial gains in human rights over and above those guaranteed in
the 1962 constitution. |
About Nepal