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 4, Issue 1, 2014
Articles

Bringing People at the Threshold of Development: the State’s Unconditional Accountability to Protect Human Rights: A New Jurisprudence for Protecting Human Rights and Promoting Development

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  • Yubaraj Sangroula
Yubaraj Sangroula
Professor In-Charge, Kathmandu School of Law
Bio

Published 2014-04-30

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How to Cite

Sangroula, Y. . (2014). Bringing People at the Threshold of Development: the State’s Unconditional Accountability to Protect Human Rights: A New Jurisprudence for Protecting Human Rights and Promoting Development. Kathmandu School of Law Review, 4(1), 1–32. Retrieved from https://kslreview.org/index.php/kslr/article/view/196

Abstract

The article postulates that the state of poverty is an outcome of the deprivation of basic human rights for dignified life, obliteration of the freedom to individual autonomy and presence of social exclusion with stigma. Human rights advocacy can have no meaning at all if it ignores to ‘emphasize the need of protecting the right to have rights’.

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References

  1. The author has worked as a lawyer for the former Gurkhas' movement for equality in salary in pension, during the 1990s. The following information is based on the author's knowledge about the plight of Gurkhas, which he learned from the movement: Nepal has a peculiar tradition, in which its citizens have been serving in the British Army, since the era of colonial rule in India. The tradition has had a history of over two hundred years. Historically, Nepal and the colonial British Government in India fought a painful war and, in 1816, Nepal was finally Nepal defeated, whose outcome was a treaty pursuant to which a large territory of Nepal was transferred to the British control. In the post-war era, the colonial Government secretly indulged in recruiting Nepalese youths into its military
  2. orce, as argued by historians, for two reasons: firstly, to drain the youth population of Nepal in order to avoid the situation of a renewed threat by Nepal to the colony, and, secondly, to raise a military of people who could not speak the Hindi language and get them assimilated with native Indian population in order to suppress the probable birth of a quest of independence by the native people. In the post-colonial period, this mammoth sized military, was largely disbanded and a sizeable number was divided into the British Gurkhasand the Indian Gurkhas.The British Gurkhaswere deployed in Malaysia where a phenomenal uprising occurred in the 1950s that transformed into a war. The British Government had contracted to participate in that war, on behalf of the Malaysian Government and against the communist insurgents of Malaysia. Many Nepalese soldiers were killed in this war, and many returned destitute in a scheme of redundancy, upon the end of war. This practice of soldiery has been one of the devastating factors behind the massive poverty in Nepal, for two reasons: a) the youth population that was supposed to work for the nation-building was deflected by the British colonial power towards participation in wars, including the two World Wars and the Malaysian War, causing thousands of war casualties that left the soldiers' dependent families helpless; b) those who returned, did so empty-handed.
  3. The author was narrated this story by a relative of the girl during the author's visit to the village, along with a group of law students, while engaged in a mobile legal aid program. Due to the imperatives of research ethics, the name of the girl has been changed and the actual village has been kept unidentified.
  4. The terms 'vector of life' refers to a 'structure of life' formed by the unity of various elements associated with life of each individual or family. The term vector, in a generic sense, refers to a station or platform or the state of life being carried on. Vector of life in the form of family unit is a 'cumulative structure of vector of life of each member' of the family. Vector of life ofan individual is formed by body of 'objective elements', so that each individual's life, although much similar to another individual's life, is different because of the differences in the comparative strength of each contributing element. The elements constituting the vector can be collected and analysed in order to ascertain the exact state of life. The elements contributing to the vector are changeable, and the changes thus occurring in the elements 'change the structure of the given vector', in turn. This implies that 'change in the vector of life' refers to the change in one or more elements associated in forming the given vector or vice versa.The development in a life of person negatively or positively affects the elements that account for formation of the given vector. Recognition, respect and protection of rights' play crucial role in change of the elements accounted for forming the vector. No endeavour of development without recognition, respect and protection of right can make difference in the vector of life.
  5. Sergio J. Campos, 'Subordination and the Fortuity of Our Circumstance', vol. 41, no. 3,
  6. University of Michigan Journal Law Reform 585, 2008, p. 587.
  7. Campos (n 5), p. 612.
  8. Campos (n 5), p. 591.
  9. Injustice results as an outcome of denial or deprivation of socio-economic and political rights of person, which, in turn, blocks the process of positive changes in the elements of the vector of life. See Amaratya Sen, Choice, Welfare, and Measurement, Oxford University Press, 1982, pp. 24-31.
  10. For instances, New Testament in Matthew (19:16-30) and Luke (18:18-30) contains a parable of a rich man's queries to Jesus. Jesus in his response to the rich foolish man, implicitly repudiates the 'prevailing belief' that richness is a blessing of the God. Jesus has said that a rich man who refutes to share property with poor finds it more difficult to enter the God's home than camel, as entering into the God home one has to pass through a hole of needle point'. Jesus's advice to the foolish rich was to share his property to poor. For detail, see W.F. Allbright & C.S. Mann, Matthew, The Anchor Bible, Doubleday and Company, 1971; The Old Testament, in Deuteronomy 15, expresses concerns to the poor. t says, 'There will be no poor among you ... if only you will obey the voice of the Lord your God. . . If there is among you a poor man, one of your brethren, in any of your towns within your land which the Lord your God gives you, you shall not harden your heart or shut your hand against your poor brother, but you shall open your hand to him, and lend him sufficient for his need. . . You shall give to him freely, and your heart shall not be grudging. . . For the poor will never cease out of the land; therefore, I command you, You shall open wide your hand to your brother, to the needy and to the poor . . .'. Bruce C. Birch, 'Hunger, Poverty and Biblical Religions', Religion Online Organization available at http://www.religion-online.org/showarticle.asp?title=1855, accessed on 20 October 2014; Buddhism considers poverty as bad because it involves dukha (suffering).The key message of Buddhism is to eliminate dukha, and for this end, it advises people to renounce greed. Buddha, in his teaching, has advised people to possess enough material resources, enjoy those resources, share them with relation and friends and being not in debt'. See David Loy, 'Buddhism and Poverty' National Taiwan University Online Library available at http://buddhism.lib.ntu.edu.tw/FULLTEXT/JR-MISC/101785.htm, accessed on 20 October 2014. Hinduism recognizes the importance of material wealth for the overall happiness and well being of an individual. A house holder requires wealth, because he/she has to perform many duties to uphold dharma and ensure the welfare and progress ofhis/her family and society. While Hinduism advocates austerity, simplicity and detachment, it does not glorify poverty. 'Purusarthas, Hindu Way of Life', Mailer Indiaavailable at www.mailerindia.com/hindu/veda/index.php?Purasarthas, accessed on 20 October 2014.
  11. As described by Hindu scriptures, the very first goal of life is pleasure,in its assorted material and abstract forms, implying claims to food, housing, clothing, art, music and dance. James Fieser, 'Great Issues in Philosophy', The University of Tennesse UT Martin available at www.utm.edu/staff/jfieser/120; Also see Karl Britton, Philosophyand the Meaning of Life,Cambridge University Press, Cambridge, 1969; Also see John Cottingham, On the Meaning of Life, Routledge Publications, London,2003; Also see Milton K. Munitz, Does Life Have a Meaning?, Prometheus Books, New York, 1993. According to Toaist teachings, human beings should live in accord with flow of nature; no one should aggressively go against it. See James Fieser (n10). Buddha's teaching about meaning of life is simple. He begins by describing 'four noble truths' of life: (a) life is suffering; (b) source of suffering is desire; (c) cure of suffering is the elimination of desire; and (d) so that each person has to follow eight paths to enrich the life, which emphasize cultivation of proper or right understanding, thought, speech, action, livelihood, effort, mindfulness and concentration.10Pursuing these teachings, according to Buddha, will lead a person to a state ofNirvana (enhanced spiritual enlightenment). Hence, to achieve nirvana is the ultimate goal of life. The achievement of nirvana transforms an individual from 'I' to 'We'. Hence, 'sarbajana hitaya sarbajana sukhaya. For detail, see Yubaraj Sangroula, The Philosophy of Law, Oriental Perspective', Kathmandu School of Law, Kathmandu, 2010. Islamic thought on life is very precise and unequivocal. It says, life is a great gift of allahand is to cherished and protected. Islam therefore talks of 'alms', a system of compulsory contribution of charity by those who have to support those having resources. See Dr. A. Majid Katme, 'Sanctity of human life is basic concept in Islam' available at www.spuc.org.uk/about/muslim-division/euthanasia, accessed on 25 October 2014.
  12. The Declaration added that 'poverty depends not only one income but also on access to social services'. Most international organizations have taken same approach to define poverty.Copenhagen Declaration on Social Development, UN Doc. A/CONF.166/9, adopted on 14 March 1995, annex II, s.1; A report of the World Bank, for instance, states that absolute poverty is refers to 'the state of severe deprivation of basic human needs, which commonly include food, water, sanitation, clothing, healthcare, education and information'. The report categorizes poverty as absolute and relative poverty, the latter referring to a state 'contextually as economic inequality in the location or society in which people live'. World Bank, 'Measuring Inequality', World Bankavailable at http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPA/0,,contentMDK:20238991~menuPK:492138~pagePK:148956~piPK:216618~theSitePK:430367,00.html, accessed on 25 October 2014; The one more approach to determine poverty is known as 'income and consumption determination' method. In this method, the researchers have to determine 'the per-capita income and per-capita consumption amounts.' For detail, See Geoffrey Gilbert, World Poverty, ABC-CLIO, Santa Barbara, 2004; Also see Sanjay G. Reddy, How not to Count Poor, Columbia University Press, 2005; The difference is then used to 'determine the level of poverty'. This method proceeds by quantifying the 'poverty status'. In all of these methods, the de factosituation, which is a cumulative effect of various factors, is seen as poverty. All these definitions and methods take poverty as a tangible substance or object, thus making attempt to identifying its underlying characters or attributes.
  13. For example Jonathan Haughton & Shahidur R. Khandker argue that 'poverty is the deprivation of food, shelter, money and clothing that occurs when people cannot satisfy their basic needs' and add that poverty can be understood simply as lack of money, or more broadly in terms of barriers to everyday life. Jonathan Haughton & Shahidur R. Khandker, Handbook on Poverty and Inequality, World Bank, Washington DC, 2009.
  14. World Bank, World Development Report 2000/2001: Attacking Poverty, Washington DC, 2000.
  15. Haughton and Khandker (n 12).
  16. Ibid, p. 2.
  17. Utilitarianism, as a normative ethics theory, emphasizes that every action must maximize happiness and minimizes suffering. The classical or hedonistic theory of utilitarianism argues that materialistic pleasure is the only intrinsic good. Charavakaphilosophy in Eastern philosophy propagates for hedonism, that is, life is the ability to enjoy happiness by all means and argues, in opposition to other schools of Hindu thoughts, that there is no other life after death. In the Western tradition, Democritus might be considered as the earliest philosopher to have categorically embraced hedonism. The Cyrenaics, in the early Greek philosophy, represent the ultra-hedonistic thought, who argued that pleasure is only intrinsic good. The classical or hedonistic approach emphasizes material well-being as a salience of happy life. The quality of richness and poverty is, thus, implicitly looked upon as a state of having or not having the materialistic adequacy of life. Such definition of poverty is, therefore, impliedly based on classical or hedonistic aspect of adequacy or happiness. This approach undermines the 'importance of rights that constitute the worth of human person'. See James Hastings, Encyclopaedia of Religion and Ethics, Charles Scribner's Sons, 1922, p. 6.
  18. Haughton Khandker (n 12), p. 2.
  19. For detail, see Amartya Sen, Commodities and Capabilities, Oxford University Press, Amsterdam, 1987.
  20. Theory of Rene Descartes can be helpful to understand the idea that 'understanding' and 'knowledge' are two different things.
  21. Indicators of Poverty and Hungers, United Nations, signed by all UN Agencies on 1998.
  22. Joseph Raz, 'Human Rights in Emerging World Orders', vol. 1, Transitional Legal Theory 31, 2010, pp.31-37.
  23. Kevin R. Johnson and George Martinez, ''Crossover Dreams: The Roots of LatCrit Theory in Chicana/o Studies Activism and Scholarship', vol. 53, Miami Law Review 1143, 1999 available at http://papers.ssrn.com/so13/papers.cmf?abstract_id=244677, accessed on 2 December 2012.
  24. See David G. Gutierrez, Walls and Mirrors: Mexican Americans, Mexican Immigrants, and the Policies of Ethnicity in American Southwest, University of California Press, Berkeley, 1991, p. 132.
  25. Johnson & Martinez (n 22).
  26. Johnson & Martinez (n 22).
  27. Ibid.
  28. For detail, see Strauder v. West Virginia, Supreme Court, the United States, 100 US 303(1880).
  29. For detail, see David Orentlicher, 'Discrimination Out of Dismissiveness: the Example of Infertility', vol. 85, no. 1, Indiana Law Journal, 2010 available online at http://ssrn.com?abstract=1359417, accessed on 26 October 2014.
  30. This assertion was established by the US Supreme Court in Frontiero v. Richardson. The principle is predominantly used to rectify discrimination based on gender, color and other differences. The principle of equality, however, has been hardly used specifically to address the problem of poverty. Poverty has not been recognized as a matter of discrimination so far. See Frontiero v. Richardson, Supreme Court, the United States, 411 U.S. 677, pp. 684-88.
  31. See Kenneth Karst, 'The Supreme Court, 1976 Term: Foreword: Equal Citizenship Under the Fourteenth Amendment', vol. 91, Harvard Law Review 1, 1977, p. 5.
  32. See Campos (n 5).
  33. See Francisco Valdes, 'Legal Reform and Social Justice: The Introduction to LatCrit Theory, Praxis and Community', The LatCrit Monograph Series,2003 available at www.latcrit.org/publications/monographs/icfvenglish.pdf, accessed on 26 October 2014.
  34. The concept of personality and associated rights of individual human beings are matters of immense consideration and study in the philosophy of natural rights. Hegel and Kant took personality as essence of human being and dealt extensively within the philosophy of natural rights. They presented personality as a capacity of making individuals able to interact with each other. It is explicably implied that the equality of individual ultimately rests on an element called personality. Personality abstracts fromthe doctrinal framework of rights and duties. Personality obviously embodies a notion of correlativity of right and duty. It means human interactions are governed by the theory of personality on the one hand and the theory of correlativity on the other. Together, personality and correlativity are the interlocking foundation stones of a theory of liability. For detail, see Ernest J. Weinrib, 'Correlativity, Personality, and the Emerging Consensus on Corrective Justice', Vol. 2, No. 1, Theoretical Inquiries in Law, 2001, p.7 available at http://ssrn.com/abstract=1273345, accessed on 26 October 2014.
  35. The concepts of right and duty, within the correlativity framework, share the characteristic one actual behavior, which is generally called active act. Within this framework, right and duty describe and act where the law forbids permits or requires physical action or inaction. Weinrib (n 7).
  36. This state can be better illustrated by an example. In Nepal, schools are far in distance and the difficult terrain makes it hard for disable children to go to school. This situation violates the right to education of most disable children. The policy of the government is wrong and is acted upon (which constitutes an active act, here) and is the cause of deprivation of right to education of disable children. The denial of right to education makes it difficult to improve in the given vector of life. Apparently, the so-called poverty, here, is nothing but a denial of the right to education and a wrong policy of the government.
  37. See Richard A Posner, The Economics of Justice, 2ndedn, Harvard University Press, 1981, p. 3.
  38. Posner (n 36), pp. 3-53.
  39. The economic approach to study non-market areas, including law began prominently in the 1970s. Gray J. Becker has most vividly presented the economic approach in non-market areas such as discrimination, justice and so on. For detail, see Gray J. Becker, Economics of Discrimination, University of Chicago Press, 1971; Asearly as 1957, Gray Becker started pressing economics into non-market areas of education, fertility, slavery, suicide, adultery and soon. Gradually theories developed with firm believes that the concept of justice, privacy, equality, discrimination, public interests and many similar areas of law and justice sector could be illuminated by the economic approach. The use of economic analysis in matter of non-market behaviors gained momentum in Becker's book. Other scholars who significantly highlighted the necessity of economic analysis of non-market behaviors were Theodore W. Shultz, John H. Kagel and Ronald H. Coase.
  40. Loss in income due to low production of yields disables litigant to hire service of lawyer. Non-engagement of legal professional will weaken the defense of case in his/her side. This 'accrual of injustice' is directly associated with economic condition and the economic condition is directly related with access to resources.
  41. Autonomy in most general sense refers to being of a thing in its own nature. Loss of autonomy decimates the'identity of thing. Autonym, as defined by the Stanford Encyclopedia of Philosophy is an idea that is generally understood to refer to 'the capacity to be one's own person, to live one's life according to reasons, motives that are taken as one's own and not the product of manipulative or distorting external forcers'. Center for Study of Language and Information, Stanford Encyclopedia of Philosophy, Stanford University, 2009; The term autonomy comes from 'Latin terms auto(self) and nomos(law). Together, these two words are understood as 'one who gives oneself his/her own law'. It is the capacity of rational individual to make voluntary decision.
  42. The interest of resolving dispute by the application informal justice mechanism is not limited to the object of convenience alone. The desire of parties to effect changes in behaviours of the society is implicit, but prominent. The informal justice mechanism is, thus, implicitly associated with mission of reconstruction of the traditional structure of society. The social sanction attached to the resolution of the case is a prelude to the change in the behaviours of the society.
  43. In ancient Roman Empire, the patricians exclusively enjoyed ownership over the lands. Similar was the history in Greek city states.
  44. Aristotle opined that slavery was natural institutions. Roman empires described the non-Romans as uncivilized and barbarians. Plebeians were considered inferior to patricians. Citizens and slaves, patricians and plebeians and woman were arbitrary classification of people, which were fully institutionalized by laws. The claims over natural resources were exclusively enjoyed by some people by relegatingthe worth of persons of mass. It was a political act. Hence, poverty has a root in political injustice. The control of economic behaviours by political institutions is a historical cause of poverty among vast people.
  45. The laws of Nepal, until very recent past, used to recognize and protect institutions such as Birta, Guthi, Raiker, Bethi, Kipat, and so on. These institutions were established by the State through law in order to protect the interest of jamaindars, taludars, bhardars, choutaraiyasand employees of the State.
  46. Egalitarian and natural theories believe that all individuals are born free without any given social or economical position. Individuals are capable of taking social position of their choice. The professions chosen to carry on determine their positions in the society. The difference of people in the society is characterised not by difference in worth of person, but by nature of their works and productivity. This theory recognize an argument that natural resources are available to utilize efficiently, but not to absolutely own without use. The nature of right over the resource should be determined by its use. Land cannot be held for uncertain period of time without being utilized.
  47. In Nepal, the Land Reform Act 1964 (2021) and some other laws were developed in the line of equity-based distribution of land in Nepal. However, their enforcement was tainted and blurred by the system of governance which could not be transformed into a modern system. The land, thus, became a matter of conflict in Nepal. It was one of the sources many conflicts in Nepal.
  48. Campos (n 5).
  49. Immanuel Kant, in his treatise called 'Foundations of the Metaphysics of Morals (1785)', requires individuals to pay respect for responsibility of exercising his/her autonomy (freedom) solely for the sake of good of all independent of other incentives. Kant argues that individual autonomy within moral framework is an ability to impose objective moral imperatives onto oneself. The eastern philosophy - Hinduism and Buddhism, both emphatically assert the necessity of good of one, for the good of all, i.e. Sarbejana hitaya sarbajana sukhaya'.
  50. John M. Cobin, 'Allodialism as Economic Policy', vol. 3, Commentaries on Law and Economics, 1999 available at http://papers.ssrn.com/sol3/papers/cfm?abstract_id=186934, accessed on 26 October 2014.
  51. Ibid.
  52. Ibid.