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Nepal's draft constitution: Fundamental rights chapter

in NEPAL, 20/07/2011

This is the 'Unofficial Translation' of the Provisions on the Rights of Gender and Sexual Minority Communities in the Proposed New Constitution of Nepal. This translation is prepared by Toya Nath Bhattarai, Secretary, Fundamental Rights and Directive Principles Committee, the Constituent Assembly of Nepal.

Sexual and Gender Minority: Concept Paper - Gender and Sexual Minority Community

Gender and Sexual Minority Community i.e. lesbians, gays, bisexuals, third sex and intersexuals ( LGBTI ) have become victims of violence, hatred, discrimination, harassment and oppression. In ordinary terms biological sex is determined by recognizing sexual organ of a person demonstrated in the form of boy (male), girl (female) or intersex. Social gender is an internal realization of one's being woman, man or third sex. The behavioral personality and gender expression/ gesture of male, female and third sex are distinct in terms of social gender. Sexual orientation shows the direction of the sexual and emotive attraction of a person. Such an attraction is found to be towards opposite sex, same sex or all sexes.

Discrimination of serious nature is detected in the exercise of human rights as illustrated by crimes against people of gender and sexual minority which are manifested through killings, torture, abuse, sex-related violence, molestation or rape, encroachment on privacy, imprisonment without reason, deprivation from employment and educational opportunities, deprivation from parental property, forced marriage with opposite sex etc.

It is necessary that the human rights of sexual and gender minorities are guaranteed constitutionally while framing the new constitution. Likewise, violation of the human rights of this community should be properly compensated by means of constitutional provisions thereby guaranteeing access to legal remedies for this community. The new constitution should promote gender neutral words and languages in social communication. If the words 'male' and 'female' are used, then third gender or third sex should also be there.

From the perspective of the practices and experiences at the international level, the provisions enshrined in the constitution of South Africa which is widely acclaimed as one framed by a Constituent Assembly and similar other constitutions designed by Constituent Assembly plus in the present context of Nepal the decision of the Supreme Court of Nepal dated 2007.12.21. (CA Member Sunil Babu Panta Vs Government of Nepal) in the mixed certiorari and mandamus order appears relevant. According to the above mentioned Supreme Court order, as gender includes woman, man and third sex, the new constitution to be framed by the Constituent Assembly of Nepal should incorporate, while making provisions about Sexual and gender minority for ensuring non-discrimination, third sex should be recognized in addition to woman and man. In addition, sexual orientation and gender identity should form the basis of such provisions. The judicial note in the above mentioned Supreme Court decision duly emphasizes that these things are required in order to clearly define the provisions for non-discrimination.

It has been an established norm that the identity of a person is determined not only by his/her biological sex but also by his/her nature, character and belief. Some persons may develop such nature, conduct and behavior which are different from those at birth. The directive order of the Supreme Court appears to have been made after having carefully taken note of these factors in order to make sure that new law or amendment to the existing laws are formulated for execution of a person's right without discrimination.

The concept paper of the FRDP Committee has also meticulously taken note of the article 26 of the International Covenant on Civil and Political Rights.  The Human Rights Committee established as per the Covenant in 1994 has mentioned by way of interpretation (Toonen vs. Australia - CCPR/C/50/D488/1992) that the word 'sex' of Article 26 embraces sexual orientation.

The constitution of the United States of America has stated provisions that deal only with equality. It has provided for equality before law. In the case of Romer v. Evans (Romer vs. Evans -19966517 U.S. 602) the provincial constitutional law was declared null and void. It has protected the homosexuals by prohibiting law against discrimination.

The Article 9(3) of the South African Constitution, the Article 23(3) of the Constitution of Equador, the Article 13 of the Portuguese Constitution as amended in 2003, the Article 14 of the Bolivian Constitution and the Canadian Charter of Rights and Freedom have duly emphasized the provisions relating to non-discrimination in their respective texts. The Constitutions of Ecuador, Portugal and Canada have specifically mentioned that 'sexual orientation' can not be the basis of discrimination under any circumstances.

Discrimination, unequal treatment and the problem of identity in respect of gender and sexual minority constitute a problem of superlative degree. This community has not been able to find space in the past censuses of Nepal. Likewise only two persons from this community have been given the citizenship certificate in the capacity of third sex as an indicator of identity. Gender and sexual minority communities have become victims of violence, discrimination and harassment in society. Right to dignified life with gender identity and identity on the basis of sexual orientation, right to equal treatment, equal access with rights against discrimination, equal rights to participation and inclusion should be guaranteed. Thus, gender and sexual minority should be assured of their right to social justice.

Translator's Note: It is noteworthy that the 'concept note' section of the Social Justice chapter also makes gender and sexual minority an explicit categorization and makes several recommendations which are reflected in the preliminary draft bill and explanatory note thereon.

Preliminary Draft of the Bill and the Explanatory Notes Thereon

(It includes only those articles and sub-articles of the Report on Citizenship, Fundamental Rights and Directive Principles that are relevant to sexual and gender minority in Nepal.)

Chapter on Citizenship

Article: 6 - Issue: Citizenship to Indicate Ancestry and Gender as Basis of Identity

Proposed Provision in the Constitution:

Citizenship with Indication of Ancestry and Gender as Basis of Identity: Every citizen shall be entitled to a citizenship certificate indicating his/her mother's or father's ancestry as well as his/her gender identity.

Location in the Constitution: Citizenship

Explanatory Note (Rationale):

The provision is incorporated to provide certificate of Nepalese citizenship to an individual applying for the certificate of Nepalese citizenship in line with lineage of his/her mother or father or both and showing his/her gender identity as male, female or third gender.

Chapter on Fundamental Rights

Article: 1 - Issue: Right to Live with Dignity

Proposed Provision in the Constitution:

Right to Live with Dignity: (1) Every person shall be entitled to the right to live with dignity.

Location in the Constitution: Fundamental Rights

Explanatory Note (Rationale): Every person has been guaranteed a right to live. This right includes the right to live with dignity by maintaining one's physical body and complete organs, identity and self esteem. As in the absence of these basic rights all other rights of the person/s become worthless. So this basic right has been incorporated to guarantee every person's right to live with dignity.

Article: 3 - Issue: Rights to Equality

Proposed Provision in the Constitution:

Right to Equality:

(1) All citizens shall be equal before the eyes of the law. No person shall be denied the equal protection and benefits from the laws.

(2) There shall be no discrimination in the execution of general laws against any citizen on grounds of religion, colour of the skin, caste, ethnicity, gender, sexual orientation, physical condition, disability, health condition, marital status, pregnancy, economic condition, origin, language, region of the country, ideological allegiance or any other similar grounds.

Provided that, nothing shall prevent the state from making special legal provision for protecting, empowering or development of women, dalits, indigenous and ethnic peoples, Madhesis peasants, workers, oppressed region of the country, Muslims, backward classes, minorities, marginalized peoples, endangered communities or impoverished people, youths, children, senior citizens, sexual and gender minorities, persons with disabilities, weak and helpless people, who are economically, socially or culturally backward.

Explanation: For the purpose of this Part and the Part on Directive Principles, State Policies Responsibilities, the term "impoverished" refers to those citizens who are living under the line of average poverty.

Location in the Constitution: Fundamental Rights

Explanatory Note (Rationale):

(1)This is a right which has been guaranteed to all the citizens. Under this right, the rights to equality before law and the right to equal protection and benefits from the laws have been guaranteed. Under the provision of equality before law, as persons are free by birth and equal in human dignity/prestige, no citizen shall be given special right or privilege on the basis of his or her birth, religion, colour, gender, and any other similar grounds. Additionally, as equal treatment in the eyes of the laws alone cannot provide equal protection and benefit to the citizen in terms of outcome, it is necessary to constitutionally ensure common protection and equal benefits to all resulting from the laws, this right to equality has been incorporated.

(2) As it is deemed essential to ensure that there is equal treatment among all citizens in the execution of law in respect of the right to equality before law and equal protection of law, this right has been incorporated to ensure that there shall be no discrimination against any citizen in the execution of general laws on the grounds of religion, colour of the skin, caste, ethnicity, gender, sexual orientation, physical condition, physical and mental disability, marital status, pregnancy, economic condition, place of origin, language or region of country, ideological allegiance or any other similar grounds. Additionally, as it may not be possible to achieve the national goals only by means of prescribed equality in a country like Nepal which has diverse social structures, and opportunities, unequal distribution of economic means and resources, varying educational quality and religious, cultural and linguistic diversities. Thus, this provision has been incorporated to enable the state to enact positive discrimination
measures by Acts and rules for a limited term in accordance with the needs and conditions and on the basis of objective statistics and information to ensure protection, empowerment or development of women, dalits, indigenous and ethnic peoples, Madhesis, Muslims, backward classes, peasants, workers or backward classes (from the perspective of educational, economical, social or cultural backgrounds) or youths, children, senior citizens, gender and sexual minorities, those who are physically or mentally disabled or weak or helpless people, so that achievement of substantial equality through social justice can be possible. In addition, for the purpose of the Chapters on Fundamental Rights, Directive Principles and Policies and Responsibilities of the State under this Constitution, the term ' impoverished' refers to these poor citizens who live below average poverty line gauged on the basis of objective standard as determined at federal or provincial level.

Article: 27 - Issue: Right to Social Justice

Proposed Provision in the Constitution: Right to Social Justice:

(1) Socially backward groups i.e. women, dalits, Madhesis, indigenous and ethnic peoples, minorities and marginalized peoples, Muslims, gender and sexual minority communities, persons with disabilities, youth, backward class, peasants and workers and oppressed regions of the country shall have the right to participate in state structure and public service on the basis of the principles of proportional and inclusive representation*

Location in the Constitution: Fundamental Rights

Explanatory Note (Rationale):

This is a right guaranteed to every citizen. As participation and inclusion are the most important instruments of social justice. this provision has been incorporated to guarantee the rights of politically, economically and socially backward people among women, dalits, Madhesis, indigenous and ethnic peoples, minorities and marginalized groups, Muslims, gender and sexual minority community, persons with disabilities, youth, backward classes, peasant and workers and oppressed groups to enable them to
participate in the political structures of the State and in the public service on the basis of proportional inclusion.

State Policies and State Responsibilities

Article: 3(j).17 - Issue: Policy on Social Justice and Inclusion

Proposed Provision in the Constitution:

(17) Special provisions will be made for ensuring the right of the gender and sexual minorities to lead a dignified and respectful life.

Location in the Constitution: State Policies and State Responsibilities

Explanatory Note (Rationale):

This provision has been incorporated to make special arrangements for ensuring the right for the sexual and gender minorities to live a dignified and respectful life based on, amongst other things, equality, non-discrimination, equal treatment, equal access, full participation and inclusiion.

 

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