Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 3, Issue Special, May 2013
Feature Article

BREAKING THE GENERATION THEORY OF HUMAN RIGHTS: Mapping the Scope of Justiciability of Economic, Social and Cultural Rights with Special Reference to the Constitutional Guarantees in Nepal

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  • Geeta Pathak Sangroula
Geeta Pathak Sangroula
Kathmandu School of Law
Bio

Published 2013-05-31

How to Cite

Sangroula, G. P. (2013). BREAKING THE GENERATION THEORY OF HUMAN RIGHTS: Mapping the Scope of Justiciability of Economic, Social and Cultural Rights with Special Reference to the Constitutional Guarantees in Nepal. Kathmandu School of Law Review, 3(Special), 1–43. Retrieved from https://kslreview.org/index.php/kslr/article/view/1003

Abstract

‘Though the human rights can be classified in accordance with their nature however, in essence, it is not reasonable to think as co placement and irresponsibility, that by making the essence of human rights secondary; by making one immediately useable and the other opposite to it.

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References

  1. Prem bd. Khadka v. Nepal Governement of Nepal WN 2064/0719 (2008) (Ratio).
  2. Dias, Jurisprudence (5th edn, New Delhi Aditya Books 1994) in Yubaraj Sangroula, Comparative Analysis of Human Rights Concepts and Principles at Concepts and Evolution of Human Rights: Nepalese Perspectives (Kathmandu School of Law 2005) 1 4 Ibid 3.
  3. Johan D. van der Vyver, ‘Foundations of Law: Morality, Human Rights, and Foundations of the Law’ (2005) Emory Law Journal, 188.
  4. Cited at Yubaraj Sangroula, ‘Right to an Adequate Standards of Living, Development and Social Respect and Dignity, (Paper presented at International Residential School on Economic, Social and Development Rights organized by Kathmandu School of Law, 2008).
  5. ILO was founded in 1919 at the end of World War I, the ILO is the oldest of the UN's specialized agencies
  6. See Preamble to the Constitution of the International Labour Organization. ‘Constitution of the International Labour Organization’ (ILO 1919) <http://www.ilo.org/public/english/about/iloconst.htm#pren> accessed 12 May 2012
  7. Declaring that the Organization and its members will implement the ILO's constitutional mandate based on the four strategic objectives of the Decent Work Agenda toward the universal aspiration for social justice; See also ILO Declaration on Social Justice for a Fair Globalization (adopted 30 June 2008) ILO Conference Session 97.
  8. For example, Roosevelt, in his 1944 State of the Union address, advocated that "we have come to clear realization of the fact that true individual freedom cannot exist without economic security and independence. 'Necessitous men are not free men'. People who are hungry and out of job are the stuff of which dictatorships are made." For details of this Statement by Roosevelt, See P. Alston, ‘US Ratification of the Covenant on the Economic, Social and Cultural Rights: The need for an entirely New Strategy’ (1990) 84 American Journal of International Law 365, 365-393 in Eide (ed), Economic, Social and Cultural Rights as Human rights as Human Rights" in Economic, Social and Cultural Rights (Martinus Nijhcff Publishers 2011) 11.
  9. See generally the preamble and the purpose under Article 1 of the Charter of the United Nations.
  10. UN Charter, article 55.
  11. Universal Declaration of Human Rights (adopted 10 December 1948) GA Res 217A.
  12. The phrase ‘A common standard of achievement”’was incorporated in the preamble of the UDHR signifies the universal character of human rights with the notion of “the rights everywhere of all countries”. See, Gudmunder Alfredsson &Asbjorn Eide, The Universal Declaration of Human Rights, A Common Standard of Achievement ( Martinus Nijhoff Publishers 1999) 3.
  13. The provision of 'duty' under the Declaration is complementary to the 'rights' by which only the free and full development of human personality is possible. See UDHR, article 29.
  14. UDHR, preamble, para 1
  15. See, Asbild Samney, ‘Origins of the Declaration’ in Gudmunder Alfredsson & Asbjorn Eide (n 14) 11.
  16. Article 22-27 of UDHR included ESC rights. Article 25 (1) provided a broad framework: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (emphasis added).
  17. UDHR, article 25(2).
  18. See for detail, Radolfo Stavenhagen, ‘Cultural Right: A Social Science Perspective’ in Asjborn Eide & Alan Rosas, Economic, Social and Cultural Rights: A Universal Challenge in Sangroula (n 3) 87-91.
  19. See for example Article 27 of the International Covenant on Civil and Political Right (ICCPR) and Article 30 of the Convention on the Rights of the Child (CRC). The rights of the minorities has further been expanded by the See the 'Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities' adopted by General Assembly resolution 47/135 of 18 December 1992. In addition, the Cultural Rights are also referred to in numerous international instruments as well as in several UNESCO Conventions and recommendations. See the Declaration of the principles of International Cultural Co-operation, proclaimed by the General Conference of UNESCO on 4 November 1966.
  20. The case of Sandra Lovelace v. Canada (CCPR/C/13/D/24/1977) is landmark. Lovelace was born and registered as ‘Maliseet Indian’ in Canada but has lost her rights and status as an Indian in accordance with Indian Act, after having married a non-Indian on 23 May 1970. Pointing out that an Indian man who marries a non-Indian woman does not lose his Indian status. The Committee found the said provision discriminatory on the grounds of sex and contrary to articles 2 (1), 3, 23 (1) and (4), 26 and 27 of the ICCPR. With regard to the individual rights, the Committee further gave view that "statutory restrictions affecting the right to residence on a reserve of a person belonging to the minority concerned, must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole.
  21. See Karel Vasak, Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights (UNESCO 1977); Eide & Rosas (n 19) 4.
  22. It should be noted that the natural rights of life, liberty, and equality take on a different form within the body politic; the right to private ownership which, according to Rousseau, would inevitably lead to the destruction of the state of nature, now becomes a ‘sacred’ right of the citizen. See der Vyver (n 5) 190.
  23. King John of England was forced to sign this charter in 1215. The king agreed that in the future he would not deprive freemen of their lives, liberties, or properties unless it was required by a legitimate law, and then, only pursuant to fair and proper procedures. King John died in October 1216. After his death his nine years old son Henry III succeeded. 1215’s Magna Carta was amended several times. Chapter 29 of the 1225 charter broadened and replaced Chapter 39 of King John's charter and provided: ‘No freeman shall be taken, or imprisoned, or be diseased of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.’
  24. It is called a second greatest constitutional charter of the liberties of England. Clauses 1, XI were related to the rights and freedoms of the citizens. These rights and freedoms include trial by court/jury. This provided that no tax without permission of the representatives of people and unnecessary search and seizure were restricted.
  25. Another important document from the early history of human rights is English Bill of Rights from 1688, an act declaring rights and liberties of citizens. It was a tremendous step towards the development of a true limited government. Among other things, the English Bill of Rights prohibited the king from forming armies without authorization from parliament, (By raising and keeping a standing army within this K in time of peace without consent of parliament, and quartering soldiers contrary to law.(emphasis added)), It also provided the ‘suspending laws without the consent of parliament is illegal, election of members of parliament ought to be free, and Freedom of speech ought not to be impeached or questioned.’
  26. In 1776, most of the British colonies in North America proclaimed their independence from the British Empire. Life, liberty and pursuit of happiness were the essence of the Declaration.
  27. The second generation of rights arose during the industrial revolution and was contemporaneous with the political revolutions circa 1848-1870. Human rights were then seen, increasingly, as no longer merely negative rights to freedom from state interference, but rather as affirmative, substantive social claims to state resources. Second-generation rights were seen as the consequence of dialectical class struggle and thus, to some extent, as collective rights. See Eric Engle, Universal Human Rights: A Generational History’ (2006) 12 Annual Survey of International & Comparative Law Golden Gate University School of Law 219 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020464> accessed 20 February 2013.
  28. The UN Commission on Human Rights (replaced by Human Rights Council since 2006) drafted the International Bill of Human rights, the International Covenant on the Economic, Social and Cultural Rights, The Covenant on the Civil and Political Rights (ICCPR), and the First Optional Protocol to the ICCPR adopted by General Assembly in 1966 and entered in to force in 1976. The two Covenants distinguish between implementation of these two sets of rights. See David Weissbrodt (ed), Civil and Political Rights at Encyclopedia of Human Rights (Oxford University Press 2009) 309.
  29. Vyver (n 5)191.
  30. See United Nations Declaration on the Right to Development (1986), preamble.
  31. Tapan Biswal, Human Rights Gender and Environment (1st edn, Viva Books 2008) 14.
  32. ECtHR, Communication Number.16798/90 (1990).
  33. Ibid.
  34. Ibid 191.
  35. Joy Gordon, ‘The Concept of Human Rights: The History and Meaning of Its Politicization’ (1998) Brooklyn Law School, Brooklyn Journal of International Law, 708.
  36. Article 16 of the ICESCR provided the initial mandate to the ECOSOC. The committee of ICESCR was established by the resolution of ECOSOC in 1985.
  37. Since 1990, The Committee on Economic, Social, and Cultural Rights started its work for the possibility of drafting an Optional Protocol to the ICESCR. The Committee on ESCR finalized a draft Optional Protocol that was presented for consideration to the Commission on Human Rights in 1997. The draft was still not adopted for many years. See UN Doc E/CN.4/1997/105.
  38. Vienna conference was the second global conference held in to focus exclusively on human rights, with the first having been the International Conference on Human Rights held in Teheran, Iran, during April–May 1968 to mark the twentieth anniversary of the Universal Declaration of Human Rights
  39. The Committee's report on a draft optional protocol for the consideration of individual complaints to the ICESCR (Doc. E/CN.4/1997/105) was submitted to and considered by the former United Nations Commission on Human Rights (replaced by the Human Rights Council through General Assembly’s Resolution in 15 March 2006). ESCR Res 1996/16 (1996) para.10.
  40. See ‘Section 8: Challenging Misconceptions around the OP-ICESCRC’ <http://www.escr.net) accessed 13 May 2013.
  41. See Vienna Declaration and Program of Action (1993) part 1, para 5.
  42. Ibid, part II, para 98.
  43. Joy Gordon, ‘The Concept of Human Rights: the History and Meaning of its Politicization, Brooklyn Journal of International Law’ (1998) 23 Brooklyn J. Int'l L. 689, 697.
  44. This case upheld the right to legal aid as an element of the civil right of access to justice; require the courts to examine the socio-economic condition, put stress that human rights can not be boxed into separate watertight compartment. See Yash Ghai & Jill Cottrell (eds) Implementing Economic, Social and Cultural Rights (2004) 18.
  45. Ibid, 19.
  46. See Paul Hunt, Reclaiming Social Rights: International and Comparative Perspectives (1996) 53-54 in Ibid 38.
  47. Marc Bossuyt, International Human Rights Systems: Strengths and Weaknesses, in Human Rights in the Twenty-first Century at Irwin Cotler, Human Rights as the Modern Tool of Revolution, in Human Rights in the Twenty-first Century (Kathleen E. Mahoney & Paul Mahoney eds., 1993) 52.
  48. Eleventh Annual Message to Congress on 11th January. 1944 (cited at Fred L. ed., 1966)
  49. The case on right to food observed by the Supreme Court of India is worth mentioning in a later discussion..
  50. Limburg Principles, paras 25-28.
  51. Similarly, the words 'achieve progressively' have been misinterpreted. While the concept of progressive realization requires reading this phrase in the light of overall objective which is to establish clear obligations for state parties to move as expeditiously as possible towards the realization of these rights.53 See Ellen Wiles, ‘Aspirational Principles or Enforceable Rights? The Future for Socio-Economic Rights in National Law’ (2006) American University International Law Review, Washington College of Law, American University, 46.
  52. This case was about the judicial separation where there was difficulty to have a lawyer so the Court concluded why the applicant herself was present to to represent herself, was a clear case of access to aid of counsel as positive right. See Airey v. Ireland, Eur. H.R. Rep 305, 315 (1979).
  53. Holding that although the Convention for the Protection of Human Rights and Fundamental Freedoms does not explicitly provide for a right to free legal assistance in civil cases, in some circumstances Article 6.1 may require the states to provide free legal assistance when such assistance proves indispensable for securing an effective access to court). Ibid. at 314-16.
  54. MARGIT COHN, Form, Formula and Constitutional Ethos: The Political Question/Justiciability Doctrine in Three Common Law Systems, The American Society of Comparative Law, Inc. 59 Am. J. Comp. L. (2011), 675, 676
  55. See for detail General Comment No. 3 (1990) and the Report of the Committee on ICESCR, UN Doc. E/1991/23, 83-87.
  56. 10 BHRC 84, DN 11 May 2000 (High Court); 4 October 2000 (Constitutional Court).
  57. Ibid, para 95.
  58. Ibid, para 45.
  59. Dilys M. Hill, Human Rights and Foreign Policy: Theoretical Foundations, in Human Rights and Foreign Policy 6 (Dilys M. Hill ed., 1989) 68.
  60. World Bank. Development and Human Rights: The Role of the World Bank. (Washington, D.C.: 1998), 4 available at http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module27.htm, accessed 15 Feb. 2012
  61. Yubaraj Sangroula,( n. 6)
  62. Yash Ghai & Jill Cottrell (n 46) 6.
  63. Martin Scheinin, ‘Economic, Social Rights as Legal Rights at Economic, Social and Cultural Rights’ in Asbjorn Eide (n 10) 29.
  64. Article 3 of both ICCPR and ICESCR provide the same principle of ‘equality of men and women’ and also the General Comments 16 and 28 respectively as the comprehensive guidelines for the effective implementation of the provision.
  65. See, the Committee on Economic, Social and Cultural Rights Introduction, Fact Sheet No.16 (Rev.1).
  66. The necessity of implementing the provisions of the Covenant through domestic legislation is consistent with article 27 of the 1969 Vienna Convention on the Law of Treaties, which states that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty". Indeed, the Covenant often requires legislative action to be taken in cases where existing legislation is in violation of the obligations assumed under the Covenant. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights emphasize that "States parties shall provide for effective remedies, including, where appropriate, judicial remedies" (principle 19). Because there does not yet exist an individual complaints procedure under the Covenant, the full implementation of the rights which this instrument contains is all the more dependent on the provision of appropriate laws and remedies at the national level. The Principle required interpreting ICESCR in good faith, taking into account the object and purpose in accordance with the Vienna Convention on the Law of Treaties, 1969. UN doc. E/CN.4/1987/17, Annex; (1987) 9 Human Rights Quarterly 122, 122-135.
  67. See ‘the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights’ Quarterly, 691-705.
  68. Ayesha Kadwani Dias & Gita Honwana Justice for the Poor: Perspectives on Accelerating Access ( Oxford University Press 2009), 209.
  69. Benjamin obi Nwabueze, Judicialism in Commonwealth Africa: The Role of Courts in Government 21 century (1977). In the South African context, Loots has suggested that justiciability implies determining whether a particular issue is appropriately resolvable by the courts and that this involves procedural and substantive considerations. See also generally, ‘Access to Courts and Justiciability, in Constitutional Law in South Africa, I (Matthew Chaskalson et al. eds., 1996)
  70. See generally Shadrack B. O. Gutto, ‘Beyond Justiciability’ (1998) 4 Buffalo Human rights law Review 79, 82.
  71. See Dias & Honwana (n 70) 230.74 See paragraph 2 of the Victoria Falls Declaration of Principles for the Promotion of the Human Rights of Women, 1996
  72. Government of South Africa & Ors. v. Grootboom & Ors. 10 BHRC 84, DN 11 May 2000 (High Court); 4 October 2000 (Constitutional Court).
  73. The South African Constitution was adopted by the Constitutional Assembly on 8 May 1996). Despite the fact that South Africa has yet to ratify the ICESCRs its constitution includes key ESCRs including the right of access to adequate housing (section 26(1)), to health care, food and water, and to social security (section 27 (1)). Also protected is a range of children’s rights to basic nutrition, shelter, basic health care services and social services (section 28(1) (c)). Except for the latter, the general socio economic right provisions are subject to internal limitations. They require the state to only take reasonable legislative and other measures within its available resources to progressively realise them (section 26(2)) and section 27(2)).The Constitution with the realization of respect and protect the inherent dignity (Article 10), clearly stipulates the ESC Rights under the 'Bill of Rights' such as Freedom of trade, occupation and profession, Labour relations, environment, property, including equitable access to natural resources, Housing, Health care, food, water, and social security, child right, education, language and culture, particularly addressing the cultural, religious and linguistic communities etc. See South African Constitution, chapter 2, Bill of Rights.
  74. “Although the Grootboom case centred on the right of access to housing, it emphasised that socio economic rights are interrelated and interconnected and that in order for a government policy to pass the test of reasonableness as elaborated upon in the Grootboom judgement case, a policy aimed at providing access to a right cannot be aimed at longterm statistical progress only but it should benefit the targeted people (poor households).”, See Shivani Verma, ‘Justiciability of Economic Social and Cultural Rights relevant case law, International Council on Human Rights Policy ICHRP commissioned this document as a Working Paper. (2005), para 9
  75. Brigido Simon et al. v. Commission on Human Rights (5 January 1994).
  76. Dr Mohiuddin Farooque v Bangladesh & Ors 48 DLR(1996) (HCD) 438; (1996) 2 CHRLD 107
  77. Ain o Saalish Kendra]and ors v Government of Bangladesh and ors Supreme Court of Bangladesh, (Writ Petition No. 3034 of 1999); (1999) 2 CHRLD 393.
  78. See for detail, Litigating Economic, Social and Cultural Rights- Achievements, Challenges and Strategies- ESC Rights Litigation Programme, Centre for Housing Rights and Evictions (COHRE), Geneva 2003. Available online at:www.cohre.org/litigation, accessed 13 Jan. 2011
  79. Shela Zia v WAPDA PLD 1994 SC 693
  80. Mohini Jain v. State of Karnataka SC 1992 AIR (1858).
  81. Randhir Singh v. Union of India, 1982) A.I.R. 1982 S.C. 879 85 Shantistar Builders v. Narayan Khimalal Totame and Others Civil Appeal No. 2598 of 1989.
  82. Chameli Singh & Ors. State of U. P. & Anr. (1996) 2 SCC 549.
  83. Vincent Panikurlangara v. Union of India and Others (1987) SCC 990.
  84. Peoples' Union for Civil Liberties v. Union of India in S. Muralidhar, Economic, Social and Cultural Rights: an Indian Response to the Justiciability Debate, 29-31.
  85. Prakash Mani Sharma and Others v Government of Nepal (2008) 8 NLR 956.
  86. Dil Bahadur Bishwokarma and Others v HMG decided on 2062-01-19 B.S. (01-05-2004 91 Tek Tamrakar and Others for Pro Public v. Office of Prime Minister and Council of Ministers and Others (2005) 6 NLR 680.
  87. Prem bd. Khadka v. Nepal Governement of Nepal WN 064/0719 (2008).
  88. Prakashmani Sharma v. Nepal Government WN. 0149/ 065 (2009); DN 19 May 2010 in Some Decisions of the Supreme Court Nepal (2012) 284.
  89. On behalf of Disability Human Rights Center and his own Advocate Sudarshan Subedi WN 2068-WO-0188. See also, for English translation, Some Decisions of the Supreme Court Nepal (2012) 407.
  90. See ‘Interrights’ (Commonwealth Case Law Database ) accessed 26 Feb 2010.
  91. Manila Prince Hotel v. Gov’t Serv. G.R. No. 122156 (SC 3 Feb 1997) (en banc) <http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/122156.htm> accessed 12 June 2006.
  92. See Diane A. Desierto, ‘Justiciability of Socio-economic Rights: Comparative Powers, Roles, and Practices in the Philippines and South Africa’ (2009) University of Hawaii Asian-Pacific Law & Policy Journal , 136.
  93. The Supreme Court of India has rendered the range of ESC jurisprudence including housing and food under the DPSP in connection with the rights to life guaranteed under Article 21 of the Constitution for examples Olga Tellis v. Bombay Municipality Corporation (1985) 1 SCC 81. In the Olga Case, the Supreme Court also laid down that this could be done only after arranging alternative accommodation for them. The court ordered that (i) sites should be provided to residents presented with census cards in 1976 (ii) slums in existence for 20 years of more were not to be removed unless land was required for public purposes and, in that case, alternative sites must be provided (iii) high priority should be given to resettlement.
  94. The Constitution of Nepal 1990 does not provide the explicit guarantee to the right to life, however, the Supreme Court has observed a number of cases mainly of environment in conjunction with Article 12 that provides 'right to freedom or liberty. See for example the cases of Surya Prasad Dhungel v Godawari Marble Industries (DN 30 October 1995) NLR 2052, 168); Bhojraj Iyer on Behalf of Pro-Public v HMG, Ministry of Water resources (WN 3305/2056 (1999) DN 27 September 2001; Prakash Mani Sharma et al v HMG (Bagmati Pollution) (DN 17 May 1999).
  95. See, Ghai (n.46)
  96. The rights-based approach presented in the vicious circle is an outcome of my own experience of providing pro bono legal service (legal aid) to a number of cases of poor, marginalised and indigent community in Nepal. Right to have lawyer upon his/her choice is guaranteed only for those who can afford the expenses but there is no choice for haves not people and the concept of legal aid is yet to be realized and recognized as rights-based approach of consumers of justice.
  97. Aristotle even recognizes that his arguments for natural slavery and the natural inequality of men and women are flawed, and tries to meet the objections. He clearly believed that some people were inherently destined for slavery. ‘Aristotle, Politics, Book I, VI, pt XIII’ <http://classics.mit.edu/Aristotle/politics.mb.txt> accessed 24 June 2007.
  98. The World Conference on Human Rights was held by the United Nations in Vienna, Austria, on 14 to 25 June 1993. See Vienna Declaration and Programme of Action (1993), Part I, para 5.
  99. Article 6 of the UDHR stipulates, ‘Everyone has the right to recognition everywhere as a person before the law.’
  100. Grootboom, (n 58), para 42
  101. ‘UNDP Access to Justice Practice’ < www.undp.prg/governance/docs/A2J> accessed 1 May 2013.
  102. See UN doc. E/CN.4/1987/17.Annex; (`1987) 9 Human Rights Quarterly, Vol.9 (1987) 37.
  103. Ibid, para 38.
  104. The term 'properly' is used here with a valid expectation of quality data analysis. For example the increasing ratio of literacy rate is recorded not on the basis of 'actual literacy'.
  105. Rather the literate people are counted, including those who can simply write or read their names. Similarly, most of the data are not extracted from /with the actual place and person respectively.
  106. See HRI/MC/2006/7, para.7). In Report of the United Nations High Commissioner for Human Rights, Substantive session of 2011, Geneva, 4–29 July 2011, Item 14 (g) of the provisional agenda, Social and human rights questions: human rights (E/2011/90), Para 2 118 ICESCR, Preamble, para 2.
  107. See for detail, Monitoring Economic, Social and Cultural Rights in Nepal: Human rights Indicators as a Tool, (March 2011, Kathmandu).
  108. Report on indicators for monitoring compliance with international human rights instruments/ HRI/MC/2006/7 in ibid
  109. Ibid
  110. Id
  111. Id, Chapter 4
  112. Ibid, para, 39
  113. This is one of the ethnic communities who are highly marginalized. Total 52.237 (0.23%) are recorded from the community according to CBS Nepal, 2001.
  114. Ibid, para 3.
  115. Ibid , para 6.
  116. See, Article 1 common to both Covenants.
  117. Ibid, article 1(1).
  118. Ibid, article 1(2) , followed by article 11 (basic means of subsistence).
  119. Ibid, article 5(2).
  120. Article 2 (2).
  121. See, Thirty-fourth session, Geneva, 25 April-13 May 2005, Agenda item 5 of the ICESCR Committee
  122. ICCPR provides three frameworks 'equality'. Article 2, 3 are related with the general provision of non-discrimination, equality between men and women respectively. Article 26 is a remedial safeguard for equal and effective protection of discrimination of all kind.
  123. General Comments are authoritative, although not legally binding, interpretations of obligations under the treaty. ‘Committee’s understanding of state practice’ <http://www.un.org/search/ohchr_e.htm> accessed 22 July 2012.
  124. See for detail, General Comment No. 2, CESCR, Session 4 (1990).
  125. The CESCR has adopted this Comment in 5th session, 1990
  126. The General Assembly adopted the Optional Protocol to the ICESCR through the resolution A/RES/63/117. On 10 December 2008.The Optional Protocol cam into force 5 May 2013, in accordance with Article 18(1) after meeting the 10 ratifications. As of now, there are 42 signatories. 10 States have ratified the Optional Protocol. Ecuador was the first to ratify followed by Mongolia, Spain, El Salvador, Argentina, Bolivia, ` Bosnia Herzegovina, Slovakia, Portugal and. Uruguay. See for detail <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3a&chapter=4&lang=en> accessed 15 May 2013
  127. The Optional Protocol mandates the CESCR to handle the case of violation of rights under the Covenant including the procedures to issue Interim order to avoid possible irreparable damage to the victim or victims of the alleged violations. Article 7 also provides a unique provision for friendly settlement, Like CEDAW, it also provide the inquiry procedure.
  128. The powers of Monarch had been forcibly snatched by the first Rana Prime Minister Named Junga Bahadur Rana in 1846. These de facto rulers ruled in Nepal continuously for 104 years (1846- 1951). See generally DR Regmi, A century of family Autocracy in Nepal; (Nepal National Congress 1960).
  129. P Neupane, The Constitution and Constitutions of Nepal (Ratna Pustak Bhandar, 1969) 197.
  130. Interim Constitution, 1951, article 4(a).
  131. Article 15 provided: ‘His Majesty’s Government of shall not discriminate against any citizens on grounds of only of religion, race, caste, sex, and place of birth or any of them’.
  132. See also Article 14, 16, 17 of the Interim Constitution 1951.
  133. Ibid, article 7.
  134. Constitution of Nepal, 1962, article 10.
  135. Although the Interim Constitution has replaced this Constitution, the contents under the Constitution need to be examined minutely as this brought a historical departure from monarchical rule to a Constitutional Monarchy including the provision to file the public interest litigation (PIL) providing greater scope. Aftermath of 1990 has been considered as PIL jurisprudence era, therefore, this article overviews the scope and limitations under the Constitutions since.1990.
  136. Article 18 guarantees the Cultural and Educational Right that; "(1) Each community residing within the Kingdom of Nepal shall have the right to preserve and promote its language, script and culture. (2) Each community shall have the right to operate schools up to the primary level in its own mother tongue for imparting education to its children."
  137. Constitution of Nepal, 1990, article 4(1).
  138. According to Article 6 of the Constitution, the Nepali language (Devnagari Script) shall be the official language. And all the languages spoken as the mother tongue in the various parts of Nepal are the national languages of Nepal.
  139. See Chudanath v. Public Service Commission (1997) 6 Supreme Court Bulletin 1; Laal Bahadur Thapa et. al v Local Development Ministry and others, WN 2931/054.
  140. Article 3, 5 (1) (3) of the proposed Interim Constitution.
  141. Ibid, article 24 (1).
  142. See for example the case of Yogi Naraharinath v. Prime Minister, 5 S. Ct.Bull.5, 1997 (Bhadra 1-15, 2053) Cited at Dhungel Surya et. al., COMMENTARY on the Nepalese Constitution (DeLF, Kathmandu 1998)
  143. Unlike the Indian Constitution, there was no explicit provision for 'right to life'. This has been included within the heading of 'right to liberty' that was also contained in the 1990 Constitution.
  144. The provision related to civil and political rights such as privacy and right to justice, including arrest, detention and torture are placed without being dependent in the language -'in accordance with law'. See Ibid, part III.
  145. As in the previous constitution, the language enshrines that no question can be raised at the court about the non- enforcement of the provisions under the DPSP. Ibid.
  146. Article 25 (2) states ‘the principles and policies contained in this part shall be fundamental to the activities and governance of the State and shall be implemented in stages through laws within the limits of the resources and the means available in the country.’
  147. The people of far western Districts of Nepal like Humla, Jumla, Mugu, Kalikot, Dolpa, Bajhang, Bajura and Darchula were in severe problem of starvation and are compelled to migrate in the quest of their basic means of subsistence. Being based on the information reported in the media , the public interest litigation was filed by a lawyer contending for the violation of right to food, including right to life of the people thereof. See Advocate Madhav Basnet v. Cabinet Secretariat, WB 3341/055, (1998) in Narendra Pathak et.al, Supreme Court on Constitutional Disputes (Pairavi Publications 2000).
  148. Prakashmani Sharma (n 92).
  149. Madhav Basnet (n. 151)
  150. Prakashmani, (n. 92) 292.
  151. Ibid
  152. Prem Bahadur (n.91)
  153. Sebastian Von Einsiedel, David M. Malone & Suman Pradhan (eds), Nepal in Transition from People’s War to Fragile Peace (Cambridge University Press 2012).
  154. Section 7(2) of the South African Constitution (1996) requires the state 'to respect, protect, promote and fulfil the rights in the Bill of Rights' and the courts are constitutionally bound to ensure that they are protected and fulfilled.
  155. See Paul Brest, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 BU L Rev 204, 205; See also Thomas C. Grey, ‘Do We Have an Unwritten Constitution?’ (1975) 27 Stan L Rev 703, 706; in David A. Straus, ‘Common Law Constitutional Interpretation’ 63 U. Chi. L. Rev. 87, 882.
  156. Prakashmani , ( n. 92)
  157. See for detail, General comment No. 12, Twentieth session (1999) 162 See the list of cases highlighted in the table above.(n. 75-93)