Need for a comprehensive law on

Inclusive Justice :
Challenges and way forward

 
 Historical Context of Social Exclusion in Nepal

• Social exclusion is deep-rooted in the political, economic, and social

(Source : Overview of Gender Equality and Social Inclusion in Nepal , Asian Development Bank,
2010, visited at
http://www.adb.org/sites/default/files/institutional-document/32237/cga-nep-2010.pdf )
 Historical Context of Social Exclusion in Nepal
• Despite the abolition of caste-based discrimination in 1963, the
social hierarchies and divisions remained, vesting more power and
privilege in the Brahman, Chhetri, and Newar caste groups in the
hills region.
• The consolidation of economic and political power by these groups
led to further marginalization of the non-Hindus (i.e., Adivasi
Janajatis and Muslims) and the Madhesis, the southern plain
dwellers of the Tarai belt (the plains region of Nepal), who were
not even included in the Muluki Ain.
• The patriarchal system also assigns women a subordinate status
and position in society, which was reflected in state-based
discrimination.

• (Source : Overview of Gender Equality and Social Inclusion in Nepal , Asian Development
Bank, 2010, visited at
http://www.adb.org/sites/default/files/institutional-document/32237/cga-nep-2010.pdf )
 Inclusion : Background Information
• Nepal is a rainbow nation from its casts, religion, ethnicity and
language speaking groups.
• Nepal is a mosaic of communities: there are 22 Dalits groups, more
than 59 Madheshi groups, around 59 Indigenous nationalities, 102
caste and ethnic groups, 11 religious groups and more than 92
linguistic groups in Nepal.
• More than 51 % population are women.
• Exclusion, marginalization and exploitation of many of these
communities had initially fuelled the 10 years armed conflict that
affected the country.
• Nepal is entered into federalism and it is under the federal
constitution making process.
• Therefore new laws are being enacted along with the federal
constitution.
• So, there is space for new development to incorporate all issues to
ensure inclusive justice system.
 Guaranteed human rights (CPR/ESC)
• Right to dignified life, liberty and security of person are
the minimum human rights which has been guaranteed by
Int’l and national HR mechanisms
• Nepal has ensured legal mechanisms for inclusion and
human rights, so that there is need of a state restructuring
process to participate all in state building process.
• Civil and political rights as well as economic, social and
cultural rights have been guaranteed by the national laws.
• Right to fair trial, right to just and favourable conditions of
work, freedom from torture and inhuman treatment,
freedom from slavery and right to identity/nationality are
minimum conditions of human right which has been
guaranteed by the state laws.
 Overall challenges of Inclusive Justice System
• Key challenges for rule of law in Nepal :
• - The foremost challenge is a widespread impunity
that is impeding in law enforcement,
• - A second major challenge is limited access to
justice, especially for vulnerable and marginalized
populations, and the historic exclusion of many
from representation in justice institutions and the
legal profession on grounds of gender, ethnicity,
and caste.
• - The third challenge is the need for independence
and professionalism to enable the justice system.
Theme wise challenges and
recommendations
 Untouchability : Key challenges and
recommendations
• Challenges
• Society has recognized untouchability as their regular practice
so that societal stratification and subordination is existed.
• Continuation of so called value system
• Absence of regulation on Anti-untouchability law
• Weak implementation of laws to reduce impunity and
discrimination
• Recommendations
• Effective implementation of laws and enactment of Anti-
untouchability regulation
• Proper representation of dalits in state mechanisms and
effective implementation of affirmative provisions
 Indigenous peoples rights – Key issues to be
addressed
• Issues
– Right to self-determination
– Right to participate in decision-making
– Rights to land and natural resources
– Affirmative action
– Cultural and Linguistic Rights
Recommendations :
– Appropriate representation to participate in state mechanisms.
– Amendment of LSGA to provide more rights to them to ensure
their access to land and natural resources.
– Effective implementation of affirmative actions
– Freedom to practice cultural practices and indigenous
knowledge
 Madhesi people - Key issues to be addressed
• Immediate attention needs to be provided to
ascertain citizenship rights to the landless
Madhesi people, and to maximise their
representation in political and administrative
units of the country.
• Eliminate the discrimination based on color,
region, religion, language and cultural identity by
adopting a special legislation.
• Investigate the allegation of the extra judicial
killing and torture in Terai-Madhes.
 Senior citizens - concerns and challenges
• Concerns :
• Lack of state run protection centres
• Inadequate social security allowances
• Lack of implementation of several services and facilities to
be provided by the public/private institutions( eg. Bus fare,
health care facilities)
• Non- implementation of laws specifically for the protection
of helpless/destitute elders.
• Recommendations:
• Establishment of protection centres
• Increment in social security allowances
• Special care and facilities in public services
( transportation, health facilities etc.)
 IDPs- Concerns and recommendations
• Concerns :
– Lack of personal security
– Still capturing of personal property
– Lack of livelihood options
– No access to services and opportunities
– Gaps of adequate laws on IDPs
• Recommendations :
– Ensure personal security
– Return of property
– Create livelihood options at local level
– Provide adequate access to services and opportunities
– Enact new laws on rights of IDPs
 Vehicles of social change to ensure inclusive
justice
 Family
 Colleagues
 Society
 Education/curriculum
 Work/behavior
 Religious and cultural
practices
 Media
 State/government
 Regional/international
communities
Lawyer of levels to be involved to ensure inclusive justice system

Global/Int’l

Regional National

Local Community Household Individual

Communit Family
y

Religio State Media

School Market/
Private sector
Required mechanisms to ensure inclusive justice

Actions/
behaviours Policy

Constitution/
Ínt’l Law
Decisions/ Acts
case laws

Internal
communic By laws
ations
 Special recommendations to address the
challenges
• Enactment of special laws to protect the interests of all
categories ( eg. Women, senior citizens, IDPs, children,
differently able citizens and indigenous people etc.).
• Proper implementation of laws to protect the rights of all
targated groups (eg. women, Dalits, Madhesi communities
and destitute people etc).
• Establishment of protection centres for abandoned citizens,
vey poor and helpless citizens including differently able
peoples.
• Effective implementation of Interim Constitution, National
code, Local Self Governance Act and Social welfare related
laws.
• Effective implementation of judicial decisions in line with their
mandate and decisions taken.
Thank you