The preamble of the Bill made to establish the proposed National Dalit Commission has emphasized on empowerment, increasing public participation, reaching agreements in the national mainstream, and social justice. The issue of the protection of the human rights of the Dalit community should be clearly stated in the proposal. This issue has also been raised in the amendment proposal of the Bill.
The bill has defined caste discrimination and untouchability differently but untouchability has not been properly defined. It is not necessary to separate the two. The definition of caste discrimination and untouchability as provided in this very bill has been presented below as it is. It is best to use this definition.
“Caste discrimination and untouchability” means “ the conscious or unconscious act/attitude/behaviour/character/discrimination of another person by anyone under with whatsoever intention, based on the birth, lineage, color of the skin, caste-community, profession or the basis of their community’s birth, discriminates, ostracizes, refuses, bullies, disgraces, prohibits, bans, prioritizes due to caste, or prohibits or limits the use or consumption of any consumable goods or services, or limits or blocks the human rights and fundamental freedoms of another person on the basis of caste, lineage, profession or caste birth, is caste discrimination or the practice of untouchability”. (Amendment proposal)
3. Capacity and level of Commission
The procedures opted in appointing officials in the commission from different sectors, stating their academic qualifications, professional experiences, formation procedures, recommendations, who makes the appointments, the communication channel to be adopted with the government, who they will submit their reports to, and what kind of services it will provide, will determine the level and capacity of the commission. The current bill has been analysed based on these headings to determine what kind of commission is being made and what it will look like.
(a) Which community should the commission officials be from: Article 3(1)(a) of the proposed bill regarding the formation of the commission does not clearly state which community the commission officials should be from. It should clear state whether commission officials should only be appointed from the Dalit community, or only from othe communities, or whether it should be a mix off Dalit and non-Dalit communities.
Suggestion: In article 3(1)(a) it should clearly be stated that the Chairman and members of the Dalit commission should be from the Dalit community
(b) Determining the period of activity/experience: The provision of a minimum of seven years of experience for the chairperson and a minimum of five years for other members, in the field of Dalit community welfare is impractical. How is such experience to be evaluated? There might be a confusion with regards to who is going to measure the experience and on what basis. It can only be measured if it is clear in what particular sector the person is experienced. Likewise although the proposed bill states that there shall be at least one woman and one Madhesi (gender and regional) to ensure representation, it does not clearly state which sectors they are to be chosen from. As per the Paris Principles, the commission must also represent the majority as well as ensure inclusiveness.
Suggestion: There should be a provision mandating the chairperson to have a minimum of 10 active years and for the members to have a minimum of 7 active years of work experience in either human rights, legal profession, justice, administration, teaching, journalism, research and investigation, social service or politics. Along with this to ensure internal inclusion from the Dalit community, there should be a mandatory provision for a minimum of 2 Dalit women and 1 Madhesi dalit representation.
(c ) Appointment process: Article 6 of the proposed bill states that the committee to recommend individuals for the post of chairperson and members shall be formed under the chairpersonship of the Local Development Minister or the State Minister, and shall include a member of the National Planning Commission (who looks after the sector), and an individual who has worked for the welfare of Dalit rights appointed by the Nepal Government, and that the very same committee shall recommend to the Nepal Government to appoint one person. In the Bill it has been proposed that that the necessary process shall be determined by the Committee’s method committee itself. However it does not clearly specify what particular procedures the said committee is to adopt to choose the officials.
Independence and Autonomy of the Commission
According to the Paris Principles, the government should provide for adequate funds necessary for the Commission as well as the physical infrastructure, and ensure that the Commission is financially autonomous from the state. However there is no guarantee of provision for necessary funds or the physical infrastructure for the Commission in the proposed bill. Instead Article 12(3) states that before taking any financial aid/funds from foreign governments, international organizations and associations, or individuals, the commission must receive prior approval from the government, Article 26 dictates that the approval must be sought from the Finance Ministry before deciding on any financial matters, while Article 27 states that while making rules regarding salaries and services the Commission must consult with the government, all of which puts the Commission under the financial control of the state. In the amendment proposal of the bull it has been suggested that the entire Article 12(3) of the bill must be removed.
Suggestion: In Article 12 of the bill it must be stated that the government must provide for all the necessary funds needed by the Commission and allow it to independently find funds as per its need.
5. Work, responsibility and authority of the Commission
(a) Work, responsibility and authority of the Commission: Article 9 of the Bill authorizes the Commission to monitor, recommend, analyze whether it has been effective or ineffective, provide legal assistance and provide for the necessary, hold public hearings, and conduct public awareness programs.
Suggestion: Include the following provisions in the amendment proposal of the Bill:
Article 9(1): Include the sentence “Conduct all works necessary to enable the Dalit community experience the right to live dignified lives, protection and preservation of the their rights, empowerment and bring to national main stream”
Article 9(1)a: “Monitor whether the works have been conducted to ensure the rights and welfare of the Dalit community as per the provisions of the fundamental human rights, and suggest and recommend to the government and all others concerned to work accordingly”
Article 9(1) c: “recommend to the Nepal government to become a signatory to international and regional conventions
Article 9(1) h: Add “laws and legal investigation for the protection and preservation, empowerment and mainstreaming of the rights and welfare of the community”
Article 9(1) i: “The Nepal government shall prepare for the coordination and involvement of the commission. The [government] shall take the final suggestion of the Commission before sending the report to the concerned committee/agency/office”. “If it found to have been sent without the recommendation of the commission, the concerned committee/agency/office shall be informed in writing.”
In the sub-sections of Article 9(1), add the following sub-sections in the appropriate manner:
If information, complaints, or recommendation on incidents of caste discrimination, untouchability, violation of the rights of the Dalit community, its misuse or discouragement is received by the Commission from a victim, a second person on behalf of the victim,or any other source, the Commission shall by its own freewill conduct investigations or cause to it to be conducted.
Evaluate the overall situation of the Dalit community in Nepal regularly and publicize the reports
Monitor/evaluate non-government organisaitons working in the sector of human rights, the protection. Preservation, development, empowerment and mainstreaming of the rights and welfare of the Dalit community, and coordinate and cooperate with these organizations to work for the protection and preservation of Dalit rights and encourage such.
Recommend to the concerned agency for action against those officials who have the responsibility of stopping the violation of Dalit rights but do not do so, or do not show interest in fulfilling the given duty, as per the Caste Discrimination and Untouchability (Crime and Punishment) Act.
File cases in the court after conducting investigations on cases/incidents of communal caste discrimination and untouchability of Dalit communities, individuals, or groups.
In Article 9(3) add “and investigate incidents of caste discrimination and untouchability, violation, misuse, or discouragement of Dalit rights,” and add “commission” to “at par with the court” and add “and others” after “following.”
Instead of Article 9(9) “take permission from the concerned court for approval to conduct research or investigation on any cases concerning the violation of Dalit rights, its misuse or discouragement, that is being heard by the court”
After Article 9(9) add:
(1) Bring to attention: (a) The Commission may cause to bring to attention any issue related to the protection and preservation of Dalit rights to any agency or official as per the necessity
(b) As per section (a) the individual official or agency that has been notified by the Commission on the issue, must conduct the necessary and inform the Commisison about its course of action
(c ) “the Commission may write to the concerned agency to take departmental action on any official who refuses to provide the necessary notice, documents, or proof asked by the Commission, knowingly refuses to follow the recommendation, order or decision of the Commission, knowingly refuses to assist in the work of the commission, is absent when called by the Commission without any justifiable reason
Add “however it may take the permission of the court to conduct investigations and present its own report on cases of violation of Dalit rights, being heard (pending) in the courts
(2) Publicizing and documenting names: a) The Commission shall publicize the names of those officials, individuals or agencies that knowingly refuse to follow or implement recommendations, orders, or directions given by the Commission with regards to cases of violation of Dalit rights, as violators of Dalit rights.
(b) Before publicizing the names as per section
(a) the Commission shall write to the concerned official, invidual, or agency, specifying that such and such has refused to accept or follow the recommendation, order, or direction of the Commission and allowing them a 15 day timeline to justify themselves
(c ) As per section (b) if the concerned official, individual or agency refuses to justify themselves, or if their explanation is deemed unsatisfactory, the Commission will publicize the names of such officials, individuals or agencies as under section (a).
(d) After publicizing such names under section (a) the Commission must keep a record of the names of such officials, inviduals, or agency.
(e) While recommending any individual or official to any public post, the concerned agency may take the record kept under section (c ) as a basis.
(f) When giving responsibility to any official whose name has been publicized under section (a) the concerned agency can take into account the record kept under section (d) with regards to the persons capability
(3) Investigating: The investigation of any matter can be conducted by the Commission itself or have the a Nepal Government agency or official or any other individual. Such agencies, official or individual must conduct the investigation as per the direction of the Commission and present a report to the Commission
(4) External authority: The Commission may also accept complaints of incidents of violation, mis-use or discouragement of Dalit community rights occurring outside Nepal and conduct actions.
(5) Recommending for writ petition: The Commission shall recommend to the Attorney General to file a case against individuals found to guilty in incidents of grave violations, mis-use, or discouragement, of Dalit rights.
(6) Order to compensate: The Commission may define and order to compensate victims whose Dalit rights have been violated, mis-used or discouraged.
Authority to recommend for amendment or correction of any Acts, Regulations or behaviour to the concerned agency
Recommend for the homogenization of national laws, agencies or actions according to those international covenants that state is a party to
Cooperate/coordinate with the human rights commissions of the United Nations, the region and other countries
Cooperate/coordinate with the state’s national human rights commission, women commission, and other rights commissions
Any agency or government that makes important policies that are likely to have an impact on the Dalit community must mandatorily consult with the Commisison\
Monitor the implementation of all constitutional, legal, and rights provided by the regulation concerning Dalits
Monitor the implementation of reservation, proportional representation, right to compensation, and appointments
This investigation and recommendation letter has been finalised by advocate, writer and researcher Yam Bahadur Kisan for Nepal Constitution Foundation, with the inputs submitted by women, Janajati, Madhesi, youth and other pressure groups. The Foundation is grateful to Bijul Biswakarma, chairperson of the National Dalit Commission, Secretary Jeewan Pariyar, Ranju Thakur, Tek Tamata, Depak Nepali, Parshuram Ghimire, Madhusudan Tamang, Kishore Biswakarma, Gaura Nepali, Bhanu Adhikary, Furpa Tamang, Abhishek Adhikari, and Dr. Bipin Adhikary.
This reaserch was conducted with the help of The Asia Foundation. However the opinions expressed in this write up are the author’s alone. It does not reflect opinion of the Foundation.