KAMAL RAJ SIGDEL
The International Commission of Jurists (ICJ)
According to ICJ, in order for the draft to meet the international standard it needs a serious revision to trim out on a number of flaws related to definition, limitations and measures provided for the enforcement of fundamental rights.
The draft, for instance, does not even mention the right to protect against “enforced disappearance”, which is considered one of the serious crimes under international human rights law, according to ICJ. “It is advisable that this provision be expanded to include: the fundamental right of everyone not to be subjected to enforced disappearance, that no exceptional circumstance may be invoked to justify an enforced disappearance and that an enforced disappearance shall be punishable as a criminal offence without the possibility of amnesty or the imposition of statute of limitations on this continuing violation,” sated the ICJ in its letter submitted to CA Chairman Subash Nemwang on Wednesday. ICJ has recommended at least 24 major corrections in the draft.
ICJ has asked the CA to correct, among others, the definitions of “right to live with dignity” (Article 1) right to "security of person", right against torture, punishment and compensation (Article 7), substantive equality, right against untouchability, rights of women and Dalits (Articles 3/9/23 & 25), right to legal counsel (Article 5/2), legal aid (article 5/10), rights of those under preventive detention (Article 5), civil and political rights, right to privacy (Article 13) and economic, social and cultural rights (Article 31/1, 31/2).
Regarding limitations on fundamental rights, ICJ says that the current provisions allow the government to impose "reasonable restrictions" on fundamental rights on the overly broad and vague grounds of threats to "harmony", "relations", "decent public behavior, "the interest of the general public", or the "social dignity of the individual".
According to ICJ, the use of this kind of "reasonable restrictions" is contrary to that established under international law.
Specifically, under international human rights law (and good practice around the world), it is legitimate for a government to restrict the rights to freedom of expression, assembly and association only if the restrictions are: specifically provided by law, the least restrictive means necessary in a democratic society, intended to protect a legitilllate interest, including respect of the rights and reputations (or freedoms) of others, the protection of national security or public order, or public health or morals, reads the ICJ letter.
Regarding weak enforcement of rights, ICJ says that the provision on retroactivity (5/4) contradicts Nepa1's obligation to prosecute those acts that were crimes under international law even if, at the time of the criminal act, no domestic provisions existed (Article 15, ICCPR). “It is advisable to clarify that this provision does not apply to acts that were crimes under international law at the time of their commission.”