Progress Made In Ensuing LGBT Human Rights Issues Addressed in Nepal's New Criminal and Civil Code

Published: August 19, 2014

Blue Diamond Society (BDS) has made significant progress in ensuring that human rights issues of lesbian, gay, bisexual and transgender (LGBT) people are adequately addressed in the proposed Criminal and Civil Code of Nepal’s new Constitution. Important sexual and gender minority issues have been included in the Nepal Bar Association’s Report of the General Secretary, an influential report which will be relied upon to advocate Parliament during the drafting process.

Nepal is currently in midst of a multi-year process to draft a new Constitution. While Nepali political leaders and legal experts are in broad agreement that extensive revisions are needed to cope with contemporary criminal and civil affairs in the country, the initial drafts have included some worryingly regressive elements, particularly with respect to rights of LGBT people and other marginalized communities such as people living with HIV, men who have sex with men, transgender people, sex workers, intravenous drug users, religious minorities, people with disabilities, women, etc.

“The proposed Criminal and Civil Code is contrary to the spirit of the Supreme Court’s decision in 2007. We hope that our parliamentarians will not endorse the proposed Criminal and Civil Code in its current form. We hope all concerned authorities, activists and the public will help us to advocate parliamentarians to protect LGBTI rights, not criminalize us,” said Manisha Dhakal, Deputy Director, Blue Diamond Society.

The proposed codes go against the Supreme Court’s 2007 decision in favour of LGBT communities, for they fail to recognize the citizenship of third gender individuals, to whom the Nepali government have already begun issuing citizenship IDs and passports using the designation “other”. The drafts also ignore the Court’s decision to allow adult men, women and third genders to live together as same-sex/gender couples. Provisions in the draft codes are also at odds with international human rights treaties that Nepal has signed, particularly the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

As the revised codes make their way through the parliamentary process, BDS and its allies have taken action to ensure that amendments are incorporating earlier rulings of the Supreme Court and international human rights bodies with respect to human rights of LGBT individuals and other minority groups. To this end, high-level legal experts were targeted for advocacy through a two-day ‘Consultation on the proposed Criminal and Civil Code with a special focus on the LGBT community’, 23-24 May 2014 in Dhulikhel. A total of 63 participants took part in the consultation, including representatives from the Nepal Bar Association (NBA), District Court and Appellate Court officials, Home Ministry, Office of Legislature Parliament Secretariat, networks of key affected populations, LGBT community activists and leaders, and lawyers and advocates of the Supreme Court.

The consultation succeeded in ensuring key LGBT human rights issues were included in the NBA’s Report of the General Secretary. This report was presented the following week at the Special Constitutional Conference in Kathmandu on 29-31 May 2014 and attended by over 2,000 prominent advocates and lawyers of the NBA, as well as the Prime Minister of Nepal, Chief of Parliament and many Constituent Assembly members. The report is expected to play a significant role in advocacy efforts with Constituent Assembly members involved in Criminal and Civil Code drafting process.

“The Nepal Bar Association will help Blue Diamond Society to amend draft civil and criminal codes,” said Mr. Hari Krishna Karki, NBA President. “We will take the matter seriously to protect LGBT rights in the new Constitution of Nepal.”

Blue Diamond Society is supported through the Multi-Country South Asia Global Fund HIV Programme*. The United Nations Development Programme Asia-Pacific Regional Centre (UNDP APRC) serves the role of interim Principal Recipient.

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