Madhav Dulal/Pahichan – On September 20, 2015, Nepal promulgated a more liberal and democratic Constitution than ever before. The new constitution has provided Constitutional rights of homosexual, transgender, bisexual. It is a Ninth constitution in the world that has provided constitutional Rights to gender and sexual minority which is an exemplary to rest of The World.
South Africa is the first country to protect the rights of this Community. South African constitution enshrined the rights of this Community in 1996 while Fiji followed the suit in 1997. However, Fiji’s constitution of 1997 was dissolved in 2009. Similarly, Ecuador in 1998, Sweden in 2003, Switzerland in 2000, Portugal in 2004, Iceland in 2007, Kosovo in 2008 ensured the rights Of this community. Bolibhiya in 2009 addressed the rights of this Community through constitution amendments. Now, Nepal could teach People of first world who used to mentor us about civil rights. We can Feel pride concerning the new provision regarding the rights of a gender and sexual minority.
Now, we can speak about the rights of this community in international Arenas and challenge them to be liberal like Nepal when it comes to Ensure the rights of this community. Dozens of countries of the world are supporting various organizations in Nepal that speak for the rights of Marginalized community. It does not mean that there is no support for The gender and sexual minority by much organization. The contribution international assistance towards ensuring the rights Of gender and sexual minority is praiseworthy which should be Continued in the coming days as well.
However, some countries who have not secured the rights of gender and A sexual minority in their own country is visiting Nepal with awareness Campaign. It is up to the nature to decide the sexuality and habits of a man After the birth. Otherwise, we use people to transform ourselves to Man, women and other phases before our birth. In our context, mainly after 2001, debate began that there are other Gender identity like men and women and there is homosexuality. Lawmaker Sunil Babu Pant initiated the debate about it. CA member inn Previous CA, Pant is a founder of Blue Diamond Society.
After a peaceful struggle for 10\15 years, the movement of homosexual and transgender has reached a point, though all rights have not been Secured but it has provided a ground for further struggle. On the basis of writ filed by Pant, Supreme Court in 21 Dec 2007 delivered a directed verdict to provide citizenship under O category.
On the basis of such directive, Ministry of Home Affairs issued a Circular in ‘2069 Paus 17 BS.’ to provide citizenship under O category and Many districts are providing citizenship under O category. However, Majority of District Administration Offices have not provided Citizenship under O category. There are still confusions as some Districts have not implemented the provisions. It is a major achievement that the new constitution has guaranteed that There would not be discrimination on the basis of sexuality.
It has come at a time when efforts are underway to amend the discriminatory laws against this community. It is a meaningful development of world history and it is a milestone development. The part-2 of the constitution has secured the citizenship rights. In the new constitution, gender and sexual minority have received the rights. However, some issues still remain unaddressed, which should be dealt during law making time.
In the part-3, the rights of this community have been addressed mentioning gender and sexual minority under the fundamental rights and duty. However, provisions that there would not be discrimination on the basis of sexual orientation have been removed from the final draft. In the constitution, laborer, youths, children, senior citizen, gender and sexual minority, people with disability and people with pregnancy has been incorporated. It has paved the way to seek legal remedy if members of this community do not get equal rights like ordinary People.
The rights of this community were ensured till the preparations of preliminary draft taken for public consultation, which is secured by first CA as well. While preparing the final draft some rights have been curtailed so there is a need of a struggle again to secure complete rights. In the article 18 of preliminary draft it was mentioned that There would not be discrimination on the basis of gender orientation. If the provision was incorporated in final draft, it could have paved the way for the legal marriage of couples who are living together. The current provision also does not impose any restrictions for the same-sex marriage. A government committee has already recommended for legalizing same-sex marriage. If there is same-sex marriage, no one can say it is illegal. Along with this, the new constitution has accepted some important concepts which have provided equal rights for all the citizens. The constitution states that all citizens are equal in the eye of law and no one would be denied from equal protection and benefit of law. This provision is sufficient that the entire citizen would be treated on equal footing.
Under the provision of social justice, it has been guaranteed that members of gender and sexual minority would get inclusive and proportional representation in state mechanism. On the basis of proportional representation, the members of this community would participate in state mechanism. All credit goes to Sunil Babu Pant for All these achievements that played a vital role in previous CA. On the dissolved CA, Pant was the member of fundamental rights and directive principles. According to him, though all rights have not been answered right now, the current provision has ensured to live with dignity and freedom. However, there is always a problem of implementation in Nepal. Chairman of Blue Diamond Society Pinki Gurung, Executive Director Manisha Dhakal, Deputy Director Parshuram Rai and all members of this community have a similar demand: the rights mentioned in new constitution should be implemented.