Nepaldalitinfo Special Report

Mr. Ratna Bahadur Bagchand has been appointed to the position of a appellate court judge for the Court of Appeals in Nepalganj. This is the first instance in the history of Nepal and in the six decade long modern judicial history in the country that anyone from a Dalit community has been appointed to the judiciary position of a judge. This has been possible now, because 40% of 70 judges appointed by Judicial Council were taken from the qualified lawyers outside the judiciary service of Nepal. It is indeed a great achievement in Dalits’ struggle to have access to judiciary machinery.

The machinery of Nepal’s judiciary, one of the three branches of the state, has managed to systematically exclude the marginalized communities, especially Dalit and indigenous communities, from the time immemorial. Judiciary has always remained to date an exclusive domain of so-called high caste people, especially Bahuns, Chhetris, Newars, and Rajputs as if they only inherit any job positions in the judicial offices. In its 60 year long modern judicial history in the country, there was an absolute absence of Dalits holding any position in the courts. Now, we have our man in court, who will inspire all other young lawyers from Dalit community to aim at sitting in the court benches.

Nepaldalitinfo International Network at this juncture congratulates Mr. Bagchand for his respectable and well deserved appointment as judge in the court of law, and hopes that he will do justice to all people without any prejudice, make no personal gains taking advantage of the people, and ultimately rise to the top position of Chief Justice one day not too far away. Also, in our struggle of putting a person from Dalit community in the court bench, all of the members of nepaldalitinfo should rejoice this achievement as our success. The Nepaldalitinfo Network has been voicing for an inclusive judiciary system with the appointment of a Dalit judge.

Report by:
Bhakti Nepal/ Saroj Dillu
Nepaldalitinfo International Network

RELATED ITEMS

Making judiciary inclusive: A way to judicial independence in Nepal

Judicial Council appoints judges in appellate, district courts

LANCAU (Lawyers National Campaign for Elimination of Caste Discrimination), Nepal has filed the Writ Petition before Supreme Court to remove the word Chhota-Bada (Inferior and Superior) from the Preamble of the Country’s Civil Code (Muluki Ain), 2020. The writ was filed with Advocate Ratna Bagchand as its petitioner, on 5th of Shrawan 2066. It was argued that the word Chhota Bada (Inferior and Superior) in the Preamble of Civil Code is derogatory and a great slap against humanity and equality, which is also inconsistent with the Rights to equality guaranteed by the Article 13 of Interim Constitution and national and International Human Rights Law to which Nepal is a party.

The First Hearing of the case was held on 6th of Shrawan 2006. The Supreme Court in the first hearing ordered a Show Cause notice asking Nepal Government, Cabinet Secretariat and others to furnish their written Explanation on the issue before Supreme Court through Attorney General with in 15 days.

Advocates involved in the first hearing were: Advocate Ratna Bdr. Bagchand, Advocate Anita Joshi, Advocate Laxmi Rawal and Advocate Bidhata Poudel.

Click here to see the details of writ petition >>> Chhota-Bada Writ Petition

Reported by:
Advocate Bidhata Poudel
Asst Director (Law & Justice)
LANCAU Nepal

Preliminary Draft of the Constitution of the Republic Nepal, 2067 (2009) as proposed by the Constitution Making and Recommendation Committee, Unified Nepal Communist Party (Maoist)

Excerpts explicitly relating to Dalits:

Part 3: Fundamental Rights

11. Right to Equality
(3) The state shall not discriminate among citizens on grounds of religions, race, caste, tribe, gender, origin, language or ideological conviction or any of these.

Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of women, Dalits, indigenous ethnic tribes, Janajati, Madhesi or farmers, labourers or those who belong to a class which is economically, socially or culturally backward, or children, the aged, disabled or those who are physically or mentally incapacitated.

12. Right against untouchability and racial discrimination
(1) No person shall, on the ground of cast, descent, community or occupation, be subject to racial discrimination and untouchability in any form. Such a discriminatory act shall be liable to punishment and the victim shall be entitled to compensation as provided by the law.

(2) No person shall, on the ground of cast or race, be deprived of any service, conveniences or utilities.

(3) No person belonging to any particular cast or tribe shall, in relation to the production or making available of any goods, services or conveniences, be prevented from purchasing or acquiring such goods, services or conveniences; and no such goods, services or conveniences shall be sold or distributed only to members of a particular cast or tribe.

(4) No one shall be allowed to purport to demonstrate superiority or inferiority of any person or a group of persons belonging to any cast, tribe or origin; or justify social discrimination on the basis of the cast and tribe; or to disseminate ideas based on cast superiority or hatred; or to encourage cast discrimination in any form.

(5) Any act contrary to the provisions of the clauses (2), (3) and (4) shall be punishable in accordance with law.

21. Rights of Dalit community
(1) Land and an opportunity of proportional employment in governmental, semi-governmental and private industrial enterprises shall be provided to the landless Dalit in the economic sector as well as priority shall be given to the modern profession related to their tradition.

(2) In field of politics, there shall be a system of the representation of Dalit in the Federal Legislature, Government, constitutional bodies and Governmental political and administrative organs on the basis of special rights. Provision to make the non-geographical federal unit as to be elected one male and one female from all regions shall be made.

(3) In the field of social and culture, the state shall be free of untouchability accepting the untouchability as the evil of humanity and such practice is recognized to be serious crime and legal provision of severe punishment shall be made against the person who commits such crime.

24. Rights to social justice
Economically, socially and educationally backwarded Women, Dalits indigenous ethnic groups (Adivasi Janajati), Madhesi communities, oppressed groups, the poor farmers and labourers shall have the right to participate in state structures on the basis of the principles of proportionality and inclusivness.

Part 4: Responsibilities, Directive Principles and the Policies of the State

37. Responsibilities of the State
The state shall have the following responsibilities:-
(d) to carry out progressive restructuring of the State leading to inclusive federal republic which recognizes the people’s republic and guarantees of autonomy and self governance with the right of self determination to address the problems of women, Dalits, indigenous tribes (Adivasi, Janajati), Madhesis, ppressed and minority communities and other disadvantaged groups and back-ward regions by eliminating discriminations related to class, ethnic, lingual, gender, cultural, religious and regional by eliminating class, caste, language, gender, cultural, religious and regional,

39. State policies

(10) The State shall pursue a policy which will help to uplift the economically and socially and backward indigenous ethnic groups (Adivasi Janajati, Madhesis, Dalita, as well as marginalized communities, and workers and framers living below the poverty line by making provisions for reservations in education, health, housing, food security and employment for a certain period of time.

(14) The State shall pursue a policy of making special provision on the basis of the positive discrimination for the minorities, landless, squatters, bonded labourers, person with disability, backward communities and sections, and the victims of conflict, including women, Dalits, indigenous tribes (Adivasi Janajati), Madhises and Muslims.

Part 10: Structure of Constitutional bodies

105. (1) There shall be following constitutional bodies in the federation:-

(f) Commission for Inclusiveness (for the protection of the rights of Dalit, Adivasi Janajati, minority and marginalized),

(3) While making the appointment of the officials of the Constitutional bodies in accordance with the Constitution, the arrangement to make proportional and inclusive participation of women, Dalit, Adivasi, ethnic community and Madhesi shall to be made.

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Note from a Human Rights and Constitutional Lawyer:

Almost all political parties have drafted the constitution on their own. The concerned readers are suggested to prepare and review a comparative chart from dalit rights perspective and have discussions for the larger interest of dalit communities.

Tek Tamrakar
Human Rights Lawyer
Kathmandu, Nepal
Tel: 0097714302511
Mail: tek_tamrakar@ yahoo.com

By Bhakti Nepal
Nepaldalitinfo International Network
nepal.bhakti@gmail.com

Nepal’s judiciary, despite being one of the three branches of the state, has managed to systematically exclude the marginalized communities, especially Dalit and indigenous communities, from the time immemorial. Judiciary has always remained an exclusive domain of so-called high caste people, especially Bahuns, Chhetris, Newars, and Rajputs as if they only inherit any job positions in the judicial offices. In its 60 year long modern judicial history in the country, there is almost absolute absence of Dalits and negligible participation of indigenous people in the judiciary. It feels as if Dalits are not admissible to this public sector of highest dignity.

In the new era of inclusiveness in Nepal, judiciary must be reformed, and some sort of reservation of quota system or affirmative action for a minimum period of ten years especially is necessary. This has been warranted by the provisions made in the Interim Constitution of Nepal. This is not only about fulfilling the obligation set by the constitution but also about espousing a sense of belongingness to the state among Dalits and indigenous ethnic communities. This will also be an opportunity for the state to show the rest of the world that Nepal no longer remains a nation that bars Dalits in all practical terms from being appointed to the positions of judges. Moreover, this opportunity is about strengthening the democratic republic by bringing all sovereign people together in nation building.

The author Ananta Raj Luitel in his recent article , “Quota system: Does this mean end of independence of judiciary?” that appeared in the LEGALE-EAGLE Perspectives column of The Himalayan Times (Kathmandu, November 16, 2008) asserts that there is a provision of reservation of quota for women, Dalits and Janajatis and the people of the backward region in the other government services. If such a provision exists, would it not be logical to extend it to judiciary? In fact such quota would be in line with Article 33 (d1) of the Interim Constitution of Nepal, which guarantees inclusiveness in spirit stating ‘to enable Dalit, indigenous ethnicity, women…to participation in all organs of the state structure on the basis of proportional inclusion’.

Luitel’s article ironically appeared to carry a biased belief that only the posts of judges are directly related with the life and liberty of the people. Any intellectual mind can think that life and liberty are much more complex than what Luitel believed to be. Not only the justice, there are manifold human spheres that are important for sustaining the life and liberty. However, we believe that the positions of judges are held by the persons, whom the people do venerate for preserving the rights of every citizen to be born, grow and live with dignity equal to that of other fellow citizens.

While the article’s author recognizes the positive side from the reservation system that gives space for the people of the sections concerned, he becomes maligning to say “… there is a high risk of hindrance to the quality of justice.” He fails to realize that having the reservation system is not about diminishing the quality of justice; rather it is about enhancing the quality of justice by way of broadening the knowledge base in the benches encompassing diverse people’s perspectives. More diverse the background of the justices, higher would be the quality of justice delivered with the wider vision and perspectives of the cases they handle.

It is wrongful to consider that appointing judges under rightful criteria fixed prior to hiring will anyway hinder the independence of judiciary. Any hiring of public office jobs must reflect the peoples’ aspirations for justice and fairness, and judiciary cannot be isolated from this process. The author Luitel on one hand rightly maintains in his article that merely meeting the criteria is not sufficient for holding the posts of judges; integrity and people’s perception should be considered. The crux of the matter is that the people’s perception will have been reflected fully only when the people from all segments of the society feel that they are well represented in the judiciary to have their full faith in them. If all the judges of the Supreme Court are from Bahun, Newar, Chhetri or Madheshi Rajput castes throughout the history and same pattern has been continuing in the new era of Nepal, there cannot be a reasonable ground for the people, especially the marginalized ones, to believe that the judiciary has come to them with a change for itself becoming independent of caste based discrimination. Unless the diversity of people is reflected in the faces of judges, today’s marginalized people cannot perceive it to be of their own.

Luitel wrote an extremely nonsense view that introducing a system to make room for some equalization through the societal inclusion by way of introducing a quota system of reservation for people who would otherwise be excluded from the judiciary sector might create hindrance to the quality in the justice system and may pose a threat to the independence of the judiciary. There is absolutely no basis to claim that the quality of court and independence of judiciary will be adversely affected if the positions of judges are filled from the people of marginalized communities, meeting the criteria set for minimum requirements of the positions. Has any one heard of a patient died because s/he was treated by a doctor trained in medical sciences from reservation quota? The current Chief Justice of India comes from a Dalit community. How can Luitel even dare imagine that Honourable Chief Justice K. G. Balakrishnan, who has given several rulings that have had far reaching positive effects on society, could cause any threat to quality or independence of the justice system of India? Luitel’s argument is not only biased and maligning, but also a dangerous one coming from feudalist- Brahminist view of those who fear as if they have to part away some of their apparently inherited and practically reserved judiciary positions to Dalits, whom they have been always treating inferior to animals for a long time.

The traditional practice of appointing judges only by promotions through the bureaucratic ladder of judiciary is perhaps a rudiment of feudalist setup that has been going on in the judiciary sector for a long time. In the new era, new judges must have to go through a rigorous open job interviews among all qualified lawyers within or outside the courts before they can sit on the benches. At the same time, the positions of justices must ensure ethnic representation as one of the necessary qualifying criteria determined prior to hiring.

It is ironic that there is no single judge or any officer of law so far appointed from Dalits in the past 60 year long history of Nepal’s modern judiciary. The current state of the matter is such that, if some affirmative action is not put in place immediately, the people are not going to see any Dalit as a judge in the next one decade due to the current process that goes into making of a judge. For an example, suppose, if one person from Dalit community passes the exam of law officer in 2009 s/he will be able to compete for the post of Under Secretary by 2014 only after working for a minimum of four years at the Section Officer level. Again, s/he has to work for another minimum three years (till 2018) at the post of Under Secretary to qualify for competing for the post of a District Judge. If s/he is selected for the post of District Judge, there is a chance for her/him to be appointed in the year of 2019. All this process will take altogether 10 years from now.

On the flip side, it is not at all true that there are no qualified and able people from Dalit community, who can fulfill the basic qualifications to readily serve as judges. Currently, there are about 30 licensed lawyers from Dalit community, who are practicing in the Courts of Nepal. Among them, a few may have 15 years of experience in legal practice and research, being qualified for the post of a judge in the Supreme Court or the Court of Appeals. At least five advocates are eligible for the posts of judges at Court of Appeals, and about ten advocates are eligible for the posts of District Judge with the experience of 8 to 10 years as advocate. (Note: The eligibility criteria for Supreme Court judge requires an experience of a lawyer with related experience of 15 years or above; and it is 10 years or above for Appellate Court judge, while it is minimum of 8 years for District Court judge).

Currently, with the Judicial Council mulling over the several judges’ appointments, the Nepal Bar Association (NBA) has demanded 50 per cent share of these appointments outside the bureaucratic ladder. The leadership of the lawyers’ body has sought the share for the practicing lawyers in order to modernise the judiciary and recognise the best human resources of the profession that lie outside the bureaucracy. The NBA’s way of modernizing judiciary in the new era of Nepal appears to be the only way left for the country to make judiciary more independent and competent in contemporary world, while making it a true reflection of the diversity of the society it serves.

All these reasonings bring us to conclude that making judiciary inclusive is the surest way to guarantee universal faith of all people in the venerated institutions of judiciary, and, therefore, to make judiciary independent by freeing it from feudal barriers.

Related Article:

LEGAL EAGLE: Quota system: Does this mean end of independence of judiciary? - Ananta Raj Luitel (The Himalayan Times, Kathmandu, November 16, 2008)

A draft document called Nepal Dalit Charter was developed by a gathering of various Dalit organizations in Godavari on December 13, 2007, with the legal advice by UNDP, based on a series of five regional conference Declarations made in the year. This document has not yet been finalized as a consensus rights charter for all Dalits in the country, but can certainly serve as the remarkable milestone from which to begin a national single voice of all dalit voices.

Meanwhile, a proposal for a national mega-convention “MAHASAMMELAN” of all dalits of Nepal has been talked about among Dalit intellectual circle.

The draft Charter document can serve as the starting document towards building a consensus self governing national body of Dalits, which can take up all the aspirations and demands for a life of Dalits with dignity, equal rights and respect like any other communities in Nepal.

The nepaldalitinfo international network calls upon everyone interested in Dalit rights to comment on the following draft document to provide creative and meaningful inputs for finalizing the document as a consensus Dalit Charter in Nepal.

Nepal Dalit Rights Charter (DRAFT)

Even DNA Certification didn’t Grant a Citizenship Certificate to a Dalit

RANAGAUN-KHALANGA (JAJARKOT), March 17- Lalitjung Shah, aged 35, son of a Non-dalit father and Dalit mother still doesn’t have a Nepalese citizenship certificate. The main reason behind is that he took birth from a Dalit mother.

Lalitjung, son of father Khambajung Shah and mother Padmakali B.K., is still not a certified Nepali citizen. He does have a DNA report prepared by National Science Laboratory, proving his relation with his Non-dalit father.

The Chief District Officer denied him with the Citizenship certificate, stating lack of his father’s citizenship certificate and recommendation letter from the Village Development Committee.

“Even DNA report didn’t provid me a citizenship certificate, it’s all because my mother represents the Dalit community,” Lalitjung said.

He filed a case four years ago at the District Court- Jajarkot seeking some part in his father’s property. The court delayed the hearing stating lack of relationship certification with his father, but later the court gave the decision on the basis of the DNA report and ordered the father to give some part of the property.

But, till today, neither he received a single rupee from his father’s property nor the Nepalese citizenship certificate.

Khambajung Shah, one of the leader of Nepali Congress, is showing no respect for the court’s decision. However, Lalitjung’s mother is married to a next man.

Moreover, Lalitjung is living in a meager condition with his two children and hoping for implementation of the court’s decision.

Source: The Jagaran Media Centre

The article on ‘Socio-economic and cultural rights’ under Nepali Human Rights Paradigm-

Economic, Social and Cultural Rights under Human Rights Jurisprudence with Nepalese Perspective by Tek Tamrakar.

This was a paper presented in a national conference organized by constitutional lawyers forum recently in Kathmandu.

The article will soon be published in the form of a book.

२०६१ साल साउन २ गते हसिया, आसी, बन्चरो नबनाई दिएकै कारण भएको छुवाछूतको विरुद्धको मुद्दामा कुटपीट लुटपीटवाट पीडित वालिघरे दलितले न्याय पाएका छन् । चौमाला ७ कैलालीका ४० वषिर्य धन बहादुर वि.क. ले ०६३/११/२८ गतेका दिन सम्मानीत जिल्ला अदालत कैलालीका माननीय न्यायधिस इन्द्र कार्कीको इजलासवाट न्याय पाएका हुन । निज धन बहादुरलाई चौमाला ७ कैलालीका खगेन्द्र धामीले हसिया, बन्चरो नवनाएको भन्दै २०६१ साउन २ गतेका दिन त डुम भन्दै मरणासन्न हुने गरी कुटपीट गरेका थिए । पीडक खगेन्द्र धामीले काम गरे वापतको ज्याला वाली (खली) तिन वर्षम्मको नदिएका कारण वि.क.ले हसिया आँसी, बन्चरो बनाएनन् र कुर्टाई खानुपरेको थियो ।

पिडित धन बहादुरले २०६१ साल श्रावण ६ गते राष्ट्रिय दलित नेर्टवर्क (RDN) नेपालको पहलमा सम्मानीत जिल्ला अदालतमा छुवाछूत विरुद्धको कुटपीट लुटपीट उजुरी दिएको र उजुरीकै आधारमा पीडितले न्याय पाएका छन् । RDN नेपालका कानूनी सल्लाहकार कुलानन्द उपाध्यायले सानो जात भएकै कारण वि.के ले कुर्टाई खाएको बताउनु भयो । RDN नेपालका केन्द्रीय सदस्य जंग बहादुर सुनारले भने घट्ना जातीय छुवाछूतका विरुद्ध भएको र यो न्याय ऐतिहाँसिक हो । यस अघि धाँदिङ्गको ढोलमाई मन्दिर र लालपुर स्थित कालिका मन्दिरमा छुवाछूत गर्नेलाई सम्मानीत जिल्ला अदालतवाट रु. १०० का दरले जरीवाना गरिएको थियो । यो घट्नाका दोषीलाई प्रति व्यक्ति रु ७५०।- जरीवाना तोकेको छ । यो ऐतिहासिक फैसलाले दलित माथि न्याय दिलाएको छ ।

- हुकुम ब. सार्की

मितिः २०६३ ०८ ०४

श्री दलित अधिकारको सरोकारवाला महानुभावज्यूहरु,

विषयः आरक्षण सम्वन्धी मुद्दाको अन्तिम सुनुवाई आज हुन नसकी मिति सरेको सम्बन्धमा ।

महोदय,

उपरोक्त सम्वन्धमा देशको संविधान र अन्तर्राष्ट्रिय कानून बमोजिम आरक्षण सम्वन्धी स्पष्ट कानून अविलम्व निर्माण गर्न परमादेशको आदेश सम्वन्धी सार्वजनिक सरोकारको मुद्दाको अन्तिम सुनवाई आज मिति २०६३ साल मंसिर ४ गते समयाभावको कारणले सम्पन्न हुन नसकी अर्का समय मिति २०६३ साल माघ ३ गते सम्मानित सर्बाेच्च अदालतबाट तोकिएको ब्यहोरा जानकारीको लागि अनुरोध गर्दछौं ।

रत्नबहादुर बागचन्द
कार्यकारी निर्देशक
संस्थापक अध्यक्ष
ल्यानकाउ नेपाल

A Report on Inclusion of the Dalits’ Rights under the Interim Constitution of Nepal

This is a report of Dalits’ Development and Law, Nepal (DDL, Nepal) on interim constitution building process.

DDL, Nepal organized a series of meetings, submitted the memorandum to the interim constitution drafting committee and published the document.

The Report:
A Report on Inclusion of the Dalits’ Rights under the Interim