Essential Steps to Safeguarding Children's Constitutional Rights in Nepal

Constitution of Nepal 2072 is the present governing Constitution of Nepal. Nepal is governed according to the Constitution which came into effect on Asoj 3, 2072 replacing the Interim Constitution of 2063. The constitution of Nepal is divided into 35 parts, 308 Articles and 9 Schedules. The Constitution of Nepal 2072 has well addressed the provisions of rights of children as their fundamental rights.

There are also special provisions for children's rights to justice, education, and health, as well as rights in dispute with the law and rights against exploitation. Article 39 of the Constitution guarantees children's rights to survival, protection, growth, and participation through ten different clauses. The constitution has laid emphasis on the best interest of children through the article 51 (j). The Constitution is very progressive with the view point of the right of the child as it has clearly accommodated the provision of basic principles of child rights. The child rights related provisions are presented as follows:

 

(A) Article 39: Rights of the child

1. Every child shall have the right to name and birth registration along with his or her identity.
2. Every child shall have the right to education, health, maintenance, proper care, sports, entertainment and overall personality development from the families and the state.
3. Every child shall have the right to elementary child development and child participation.
4. No child shall be employed to work in any factory, mine or engaged in similar other hazardous work.
5. No child shall be subjected to child marriage, transported illegally, abducted/kidnapped or taken in hostage.
6. No child shall be recruited or used in army, police or any armed group, or be subjected, in the name of cultural or religious traditions, to abuse, exclusion or physical, mental, sexual or other form of exploitation or improper use by any means or in any manner.
7. No child shall be subjected to physical, mental or any other form of torture in home, school or other place and situation whatsoever.
8. Every child shall have the right to juvenile friendly justice.
9. The child who is helpless, orphan, with disabilities, conflict victim, displaced or vulnerable shall have the right to special protection and facilities from the State.

          Any act contrary to clauses (4), (5), (6) and (7) shall be punishable by law, and a child who is the victim of such act shall have the right to obtain compensation from the perpetrator, in accordance with law.

          In addition to the special provisions for children under the Fundamental Rights and Duties of article 39, other 11 articles are also related directly or indirectly to the child development and protection. Under the title of 'to be the Citizen of Nepal' in part two of the constitution, article 11(4) has stated that "Every minor who is found within Nepal and the whereabouts of whose father and mother are not known shall, until the father or the mother of the child is traced, be a citizen of Nepal by descent".

 

(B) Article 18: Right to equality

          The following clauses under 'Right to equality' under article 18 are also related to children:

1. All citizens shall be equal before law. No person shall be denied the equal protection of law.
2. No discrimination shall be made in the application of general laws on grounds of origin, religion, race, caste, tribe, sex, physical condition, condition of health, marital status, pregnancy, economic condition, language or region, ideology or on similar other grounds.
3. The State shall not discriminate citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideology or on similar other grounds.
4. All offspring shall have the equal right to the ancestral property without discrimination on the ground of gender.

          The following clauses related to ‘Right against exploitation’ under article 29 also encompass the issues of children:

1. Every person shall have the right against exploitation.
2. No person shall be exploited in any manner on the grounds of religion, custom, tradition, usage, practice or on any other grounds.
3. No one shall be subjected to trafficking nor shall one be held in slavery or servitude.
4. No one shall be forced to work against his or her will.

          Act contrary to clauses (3) and (4) shall be punishable by law and the victim shall have the right to obtain compensation from the perpetrator in accordance with law.

 

Under the 'Right to clean environment’ article 30(1), states “Every citizen shall have the right to live in a clean and healthy environment". This article may also perceive to be related to children.

          The following clauses of 'Right to education' under article 31, 'Rights to health" under article 35, and 'Right to Social security' under article 43 are also related to children.

 

(C) Article 31: Right Relating to Education

1. Every citizen shall have the right of access to basic education.
2. Every citizen shall have the right to get compulsory and free education up to the basic level and free education up to the secondary level from the State.
3. The citizens with disabilities and the economically indigent citizens shall have the right to get free higher education in accordance with law.
4. The visually impaired citizens shall have the right to get free education through brail script and the citizens with hearing or speaking impairment, to get free education through sign language, in accordance with law.
5. Every Nepalese community residing in Nepal shall have the right to get education in its mother tongue and, for that purpose, to open and operate schools and educational institutes, in accordance with law.

 

(D) Article 35: Right to health

1. Every citizen shall have the right to free basic health services from the State, and no one shall be deprived of emergency health services.
2. Every person shall have the right to get information about his or her medical treatment.
3. Every citizen shall have equal access to health services.
4. Every citizen shall have the right of access to clean drinking water and sanitation.

 

(E) Article 43: Right to social security

The indigent citizens, incapacitated and helpless citizens, helpless single women, citizens with disabilities, children, citizens who cannot take care themselves and citizens belonging to the tribes on the verge of extinction shall have the right to social security, in accordance with law.

 

(F) Article 51: the following policies under this article are also related to children:

Article 51(i) Policies relating to labor and employment: (3) To abolish all forms of labor exploitation including child labor.

Article 51 (j) Policies relating to social justice and inclusion: (4) To evaluate economically the work and contribution such as maintenance of children and care of families. (5) To take into consideration primarily of the best interests of the child.

 

Conclusion

The Constitution is very progressive with the view point of the right of the child as it has clearly accommodated the provision of basic principles of child rights. Any act contrary to clauses and shall be punishable by law, and a child who is the victim of such act shall have the right to obtain compensation from the perpetrator, in accordance with law. In addition to the special provisions for children under the Fundamental Rights and Duties of article 39, other articles are also related directly or indirectly to the child development and protection.