While creating a constitution, a constituent assembly/power must make difficult choices. Over the years, liberal democracies have adopted different constitutional models. There is no one-size-fits-all constitutional design. Depending on the history, politics, culture, geography, and population, among other things, each state designs its own constitution. Despite their uniqueness, most liberal constitutions have certain commonalities. For instance, in today’s world, it is hard to imagine a written constitution that does not guarantee at least some human rights in some shape or form. Even constitutions adopted under authoritarian political parties or military dictatorships guarantee some human rights. However, not all human rights are adopted in the same manner. In the last decade, Nepal, through its newly adopted constitution, has guaranteed human rights in a unique way. It made social and economic human rights justiciable (judicially enforceable) constitutional rights. This essay discusses how Nepal’s decision to make social and economic rights enforceable may impact our region’s (if not the world’s) understanding of constitutional rights.
The concept of human rights comes from the simple idea that human beings are born with certain rights that the states cannot take away. Due to their different features and demands, human rights are divided into several categories. For instance, civil and political rights are often referred to as first-generation human rights (FGHRs), while social and economic rights are called second-generation human rights (SGHRs). Most constitutions guarantee FGHRs. FGHRs are almost always adopted in constitutions as justiciable rights, meaning an aggrieved party may enforce these rights by filing a petition in a court. Traditionally, FGHRs were understood to create negative obligations, meaning they only limit the state’s actions. However, many scholars and even courts now accept that FGHRs may also create positive obligations (such as the obligation to provide legal counsel to ensure due process).
SGHRs are conventionally thought of as positive obligations (affirmative state action) creating rights. Due to their positive obligation-creating nature, SGHRs are often inserted as non-justiciable constitutional rights. This trend arguably began with the Irish Constitution, which was later made popular by the Indian Constitution. The Constitution of Bangladesh also guarantees SGHRs in its Part II while making them non-justiciable. These non-justiciable provisions are commonly known as constitutional directives. However, different constitutions give them different names, such as fundamental principles of state policy, fundamental directives, directive principles, and so on. Although these principles cannot be enforced by filing a case in a court of law, they nevertheless create legal obligations on states. Some scholars see these non-justiciable provisions as constitutional aspirations that the states must seek to achieve. (Weis, 2017) Other scholars see these directives as a tool for political constitutionalism. (Khaitan, 2019)
Interestingly, Nepal adopted SGHRs as judicially enforceable fundamental rights in both its 2007 Interim Constitution and the 2015 Constitution that followed. On its face, the decision to incorporate SGHRs as judicially enforceable fundamental rights makes the Nepalese Constitution far more progressive than other constitutions in its region. The Constitution of Nepal guarantees, inter alia, the right to health, food, housing, environment, education, social justice, and employment as fundamental rights. The Constitution of Nepal provides that “[t]he State shall, as required, make legal provisions for the implementation of the rights conferred by this Part, within three years of the commencement of this Constitution.” Within the three-year deadline, Nepal’s legislature has enacted several legislation to enforce these rights.
Although the Nepalese constituent assembly’s decision to include SGHRs among its judicially enforceable fundamental rights is commendable, it has its fair share of concerns. The nature of SGHRs makes it difficult for them to be judicially enforceable. The enforcement of these rights depends on a plethora of factors. For instance, if a litigant files a case to enforce the homeless people’s right to housing and the Court directs the government to eradicate homelessness, the government cannot do it overnight. Implementing such a directive would need considerable resources that governments of developing countries like Nepal may not have. The conventional belief was that SGHRs need progressive realization depending on the state’s available resources. It was believed that if the Court gives an order that is impossible to implement, it may undermine the Court’s authority. The orthodox understanding of SGHRs also saw the implementation of these rights as largely a matter of the politicians rather than the judges.
Regardless of the challenges, Nepal’s decision to make SGHRs enforceable can be seen as a right step towards the future of constitutional human rights. The Supreme Court of Nepal has also not always shied away from enforcing these rights. For instance, in Bajuddin Miya and others vs Government of Nepal, the Court held that the government’s failure to stop animals from the wildlife reserve from destroying the petitioners’ crops violated their right to food. Additionally, in Sudarshan Subedi and others vs Government of Nepal, the Court ordered the government to provide sustenance allowance to citizens with disabilities.
Nepal’s commitment to ensuring a society with distributive justice and substantive equality should be a lesson for other countries. Although judicially enforcing SGHRs may be difficult, seeing these rights as simply aspirational will not help us create the society we aspire to.
