Delay in formulating laws

Sujan Pant/Pahichan – Though Nepal’s constitution is very progressive on sexual and gender minorities, law has not been formulated accordingly.

The constitution promulgated by Constituents Assembly on September 20, 2015 has provided the status of equality to sexual and gender minority. The three articles, namely 12, 18 and 42 of constitution have clearly provided equal rights to this community like male and female.

The constitution has imagined uplifting the status of life style, educational status and economic condition of this community providing special reservation in economic, social and political level through the formulation of special laws.

The article 12 has ensured the right of receiving citizenship on the basis of identity.

Article 18 states that there should not be discrimination on the basis of gender identity and special laws could be formulated to grant equal status to this community.

Article 42 has granted the rights of social justice which talks about proportional representation, enlisting this community in the cluster of reservation.

However, it is unfortunate that laws have not been formulated even after the three years of constitution promulgation, dismaying this community.

Government has not started to formulate laws as per constitutional provisions. The rights mentioned as fundamental rights are the subject to priority rights. If no laws are formulated as mentioned in the constitution, people have the right to ask the government for such delay.

Any citizen could register Public Interest Litigation (PIL) at Supreme Court. The SC could order government to formulate the laws, asking to present reasons for the delay in formulating laws.

The LGBTI movement played a major role to make constitution progressive. However, the writ filed by LGBTI campaigner Sunil Babu Pant is a turning point in this direction. On Poush 6, 2064, Supreme Court delivered a historic verdict.

As per the verdict, LGBTI could exercise equal rights like male and female. Stating that right to marry is one right among them, SC issued an order to form a committee to study about same-sex marriage and implement the suggestions given by committee. Three years have already elapsed since the government committee submitted its reporting suggestion to legalize same-sex marriage,

The verdict of SC, the report submitted by government committee and documents presented by Sunil Babu Pant in First Constituent Assembly (CA) were taken as reference while incorporating progressive constitution in 2015. But, laws have not been formulated.  Civil and Criminal code and laws concerning their procedures have been formulated after the promulgation of constitution. Those laws have failed to take up the agenda of LGBTI. This community is facing the problem of rape and sexual harassment due to the lack of proper laws. The writ was registered by Supreme Court and it has covered following issues:

Except male and female, there could be separate sexual identity and it should not view that they are not human and citizens.

There should not be discrimination on the basis of sexuality and they must get equal constitutional rights like other community.

Citizenship

  1. Nepal is first country to mentioned Others(O) in gender category
  2. The laws on citizenship was amended in 2012 and members of this community could get citizenship as per their identity
  3. Home Ministry has already issued an order in the name of District Administration Offices to issue citizenship

Passport

The Ministry of Foreign Affairs has already changed its software to issue passport as per gender identity.

The constitution of Nepal 2015

Nepal is among the few countries in the world which has mentioned sexuality and gender in the constitution and the number of such countries is half-dozen South Africa is first country and Nepal is first Asian country.

The article 12 is related to citizen, 18 about proportional representation and article 42 about the social justice.

Challenges ahead

  • The constitution has addressed this community but laws have not been formulated
  • Other general laws have not addressed this community
  • It is not accommodated by Civil and Criminal code
  • Lack of laws on rape and sexual harassment
  • Same-sex marriage should be legalized

The article has been prepared on the basis of the speech delivered by Pant to a group of student who visited BDS office.