Dec 21, 2017 | News
On the 10th anniversary of the Supreme Court’s decision in Sunil Babu Pant on the protection of the rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI), the ICJ calls on the Government of Nepal to fully implement the Court’s ruling.
In 2007, the Supreme Court of Nepal delivered a judgment in Sunil Babu Pant v. the Government of Nepal and others, directing the Government of Nepal to take necessary measures to ensure that people of diverse gender identities and sexual orientations could fully enjoy their rights without discrimination. Such measures were to include the adoption of new laws or amending existing laws.
However, ten years after the judgment, LGBTI persons are denied equal protection of the law, and their rights are still not fully protected.
“The Supreme Court’s 2007 judgment gave hope to LGBTI people in Nepal and inspired judiciaries in the region and the world,” said Frederick Rawski, ICJ’s Asia Director. “Despite some positive measures, the Government has much more work to do to implement the judgment and ensure that the rights of the LGBTI community in Nepal are fully respected.”
The Supreme Court based its findings on international human rights law and standards, particularly in respect of the right to non-discrimination and equality and the right to privacy. The Court relied in particular on Nepal’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
The Court strongly rejected arguments that a person’s LGBTI status was the result of “emotional and psychological disorders”, and found that the petitioners faced violence, stigmatization, and discrimination because of their sexual orientation or gender identity. The Court further ordered that a new Constitution under consideration by the Constituent Assembly should guarantee the right to non-discrimination on the grounds of gender identity and sexual orientation.
Since then, some steps have been taken. The 2015 Constitution that was ultimately adopted contains provisions guaranteeing the right to equality for all citizens and establishing special provisions for the protection, empowerment and advancement of gender and “sexual minorities”. Pursuant to a subsequent Supreme Court ruling, transgender men and women can now change their gender markers to “O” on official documents. However, to use “M” or “F”, they still face prohibitive and unclear restrictions. A recently tabled bill would also criminalize unnecessary medical interventions and provide some, though incomplete, protections to intersex children.
Despite these developments, discrimination against LGBTI people remains rampant in the labour market, in schools and in hospitals. LGBTI people are mistreated and sometimes disowned by their families and singled out for physical attack – often beaten, sexually assaulted and subjected to severe physical abuse. Recent revisions to the Civil Code (2017), effective from mid-August 2018, do not recognize equality before the law related to family life.
“These violations continue in the absence of a state strategy or political will to tackle them,” added Rawski. “The Government of Nepal should prioritize enacting reforms to ensure the protection of the rights of LGBTI persons.”
The ICJ calls on the Government of Nepal to fully implement all aspects of the 2007 ruling and subsequent Supreme Court rulings affecting LGBTI communities. This should include, at the minimum:
- Repealing all discriminatory laws, including provisions of the recently introduced Penal and Civil Codes, against sexual orientation and gender identity in line with the principle of equality, equal protection and non-discrimination;
- Enacting legislation that allows same-sex couples full equality before and protection of the law;
- Enacting legislation that removes any prohibitive or unclear restrictions to changing of gender markers on all official documents;
- Enacting legislation that establishes prior, free, full, informed, genuine and consistent consent, and prevents unnecessary medical interventions on intersex persons; and
- Ensuring that the legal protections are given practical effect, including through implementation measures and administrative instructions binding officials at all levels of government.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Nov 1, 2017 | News, Publications, Reports, Thematic reports
The arrest of absconding murder convict Bal Krishna Dhungel, a senior Maoist leader, highlights the weaknesses, as well as the promises, for victims seeking accountability through Nepal’s judicial system, said the ICJ as it released a report on accountability mechanisms in the country.
The ICJ’s report Achieving Justice for Gross Human Rights Violations in Nepal concludes that impunity for gross human rights violations is one of the major obstacles to the creation of a stable and legitimate democratic government and lies at the heart of the rule of law crisis in Nepal.
It found that a lack of commitment by Nepal’s political leadership to address past and ongoing human rights violations continues to allow perpetrators to escape justice and undermines victims’ right to effective remedies and reparation.
“In the past, the promise to shield perpetrators for human rights violations has been used as a bargaining chip to garner political support and build political alliances,” said Frederick Rawski, Director of the ICJ’s Asia Pacific Regional Programme.
“It is imperative that accountability for human rights violations remains a priority for Nepal’s political leadership after Parliamentary elections, and that alliances between political parties are not once again used as an excuse to undermine Nepal’s human rights obligations,” added Rawski.
Attempts to thwart justice have also included the cynical manipulation of justice sector actors, from the police to the Attorney General’s office, in a way that threatens the independence and credibility of the institutions responsible for safeguarding human rights and the rule of law in Nepal, the report highlights.
This pattern of impunity persists despite demands for accountability by civil society and victims’ organizations, as well as the National Human Rights Commission and Nepal’s Supreme Court.
“In many ways, the Supreme Court of Nepal has emerged as a beacon of hope for victims of human rights violations,” said Rawski.
“The Court has given domestic effect to Nepal’s obligations under international law and has set high standards for accountability, remedy and reparations,” he added.
However, the Government’s disregard of key judgments has limited the impact of the Supreme Court’s jurisprudence, the report says.
Attacks on the independence of the judiciary, as demonstrated by the impeachment motion against former Chief Justice Sushila Karki, also indicate a worrying trend.
The ICJ’s report found that the mandate and operation of transitional justice mechanisms fall short of international standards despite the repeated reinforcement of such standards by the Supreme Court.
Though ostensibly formed to provide a measure of public accountability, the practice of forming ad hoc commissions of inquiry to investigate rights violations has promoted impunity by diverting investigations from the criminal justice process – where they belong – into parallel mechanisms that are established by means that make them vulnerable to political interference and manipulation.
The ICJ’s report also concludes that gross human rights violations in Nepal are not a thing of the past, but are ongoing.
Notably in the Terai region, the State has responded to the Madhesh movement with excessive use of force, extrajudicial killings, and torture and other ill-treatment.
Political expediency has trumped calls for justice and accountability and the Government continues to use State machinery to shield perpetrators rather than serve the interests of justice.
“In a seemingly perpetual cycle, the weak rule of law in the country contributes to impunity for human rights violations, and this culture of impunity further erodes the rule of law,” said Rawski.
“The search for truth and justice in Nepal will not be realized unless this cycle is ended,” he added.
Additional information
Dhungel had been absconding since the Supreme Court upheld his conviction for murder in 2010. The arrest comes after a contempt of court petition was filed before the Supreme Court against the Inspector General of Police for failing to implement multiple Supreme Court orders directing Dhungel’s arrest.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte@icj.org
Download
Nepal-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF)
Read also
ICJ Discussion Paper Nepal’s Transitional Justice Process: Challenges and Future Strategy (August 2017)
ICJ Report Authority without Accountability: The struggle for justice in Nepal (October 2013)
Aug 29, 2017 | News
Today, the ICJ concluded its Regional Conference on Women Human Rights Defenders as Political Actors, which gathered in Kathmandu women human rights defenders (WHRDs) from all over Nepal who were recently elected during the local elections in May 2017.
They were joined by Bushra Gohar, a former Member of Parliament in Pakistan, Ahmed Naaif of the Maldivian Democracy Network, and Sherene Xavier, a filmmaker and WHRD from Sri Lanka.
The discussions focused on how the newly-elected WHRDs can continue to advance human rights in their new roles as elected officials.
Under Nepal’s Local Level Election Act 2017, political parties are required to field female candidates for half of the executive posts (mayor/deputy mayor) and at least 40% for membership at the local community councils.
In May 2017, during the first local election held in the country in almost 20 years, approximately 20,000 women stood for elections, including WHRDs.
Most of the women candidates, however, were fielded by the political parties for the deputy mayor posts. At least 92% of the candidates fielded for the mayoral posts were men.
The discussions during the two-day conference (28-29 August 2017) focused on how these affirmative measures should be utilized by women human rights defenders in Nepal to advance equal participation of women in public affairs and further their advocacy for human rights.
There was some caution expressed by some of the women that these measures may reinforce the already disadvantaged place women hold in public life and may also be viewed as tokenism.
Participants in the conference discussed as well how as WHRDs, they would need to deal with human rights abuses allegedly committed by their political parties against women.
The need for WHRDs in politics to have their own support system was also emphasized during the conference.
The participants of the conference ran under the banner of various political parties in Nepal.
The National Alliance of Women Human Rights Defenders of Nepal collaborated with ICJ in organizing the conference.
The conference was opened with a keynote speech from Justice Sapana Pradhan Malla of the Supreme Court of Nepal, who spoke about the challenging path women politicians face.
Former Chief Justice Kalyan Shrestha, Commissioner of the ICJ, chaired the opening ceremonies.
May 2, 2017 | News
The Nepali legislature should immediately reject the unprecedented motion filed on 30 April 2017 to impeach Chief Justice Sushila Karki because it threatens the independence of the judiciary and the rule of law, said the ICJ today.
“This impeachment motion, the first against a sitting Chief Justice in Nepal’s history, raises very serious concerns about the independence of Nepal’s Supreme Court and the separation of powers in the country,” said Matt Pollard, who heads the ICJ’s Center for the Independence of Judges and Lawyers.
“The impeachment motion seems timed to suspend Chief Justice Karki just as she was scheduled to hear a politically controversial case,” he added.
The impeachment motion comes in the wake of the decision of the full bench of the Supreme Court, chaired by Justice Karki, to revoke the Cabinet’s 12 February decision to appoint a new Inspector General of Nepal Police evidently in violation of existing processes and regulations.
The motion to impeach Chief Justice was sponsored by two ruling parties, Nepali Congress and Nepal Communist Party (Maoist Center), pursuant to Article 101(2) of Nepal’s 2015 Constitution.
This provision allows for an impeachment motion against the chief justice to be moved by one-fourth of the members of the Legislature–Parliament on the grounds of “serious violation of the Constitution and law, his or her incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or serious violation of code of conduct.”
Justice Karki is scheduled to retire on 7 Jun 2017, when she reaches the mandatory retirement age.
“The timing of the impeachment action, so close to the Chief Justice’s scheduled retirement, gives credence to suspicions that it is aimed at preventing her participation in judicial activity during the next few weeks,” Pollard said.
Filing the impeachment motion immediately resulted in the suspension of the Chief Justice from her duties, pursuant to Article 101(6).
“The impeachment process under Article 101 does not comply with international standards on the independence of the judiciary, as the ICJ has pointed out repeatedly in its analysis of the 2015 Constitution,” Pollard added, referring to the ICJ’s Briefing Paper on the Constitutional Draft. “This recent motion starkly demonstrates the problems with the Constitutional provision.”
Nepal’s judiciary, including the Supreme Court, had also recently been criticized by officials in the ruling parties and the military in relation to a number of high profile human rights cases.
“Nepal’s Judiciary has been instrumental protecting human rights, rule of law and enforcement of the Nepal’s obligation under international law,” Pollard said.
“The Nepali judiciary as an institution has strengthened and has gained international respect for its independence, so it should be celebrated and strengthened, instead of being subject to this kind of legislative attack,” he added.
The ICJ calls on the Government of Nepal and ruling parties to withdraw the impeachment motion against the Chief Justice in order to ensure judicial independence and the appropriate separation of powers under the rule of law in the country.
Apr 20, 2017 | News
Nepali authorities should immediately take effective steps to enforce the landmark Kavre district court murder verdict for the 2004 torture and killing of teenage Maina Sunuwar, the ICJ, Amnesty International, and Human Rights Watch said today.
On 16 April 2017, the Kavre district court sentenced three army officers to life imprisonment for the murder of Maina Sunuwar, a 15-year-old girl (photo) who was tortured in army custody and died as a result in February 2004.
Maina’s killing took place during the decade-long armed conflict between the Maoists and government forces that ended in 2006.
A court martial in 2005 found that Maina had died in army custody, convicted the three officers of torture and murder, but only sentenced the three perpetrators to six months’ imprisonment for minor offences, and promptly released them on grounds that they had already served the six months while confined to army barracks during the period of investigation.
“These convictions are an important development in Nepal’s slow-paced justice system’s ability to deal with grave conflict-era human rights abuses,” said Sam Zarifi, the ICJ’s Secretary General.
“What we need now is for the government to demonstrate its commitment to the rule of law and enforce them,” he added.
The trial before the Kavre district court took place in the absence of any of the four accused, despite repeated court summonses, including an arrest warrant, to notify them of the charges and compel them to appear in court.
The three accused army officers who were convicted of Maina Sunuwar’s murder, Bobi Khatri, Amit Pun and Sunil Adhikari, are no longer in the army and are believed to have fled abroad after the court martial proceedings.
The fourth accused, who was acquitted, Major Niranjan Basnet, is still in the army and was repatriated to Nepal from a UN peacekeeping assignment in Chad in 2009 due to the indictment against him.
Maina Sunuwar’s case has become emblematic of the shortcomings in Nepal’s justice system that have repeatedly frustrated efforts of Nepali conflict victims to secure justice for wartime abuses.
Maina Sunuwar’s mother first filed a report with the police in November 2005.
Since then, there have been numerous procedural and political hurdles, and a lack of cooperation by the military as it sought to protect its own.
An arrest warrant issued in 2008 was never enforced by Nepali authorities, with the police telling the court they were unable to trace them.
“Maina Sunuwar’s case was a true test case for the Nepal criminal justice system, but the government has a habit of simply ignoring court orders,” said Brad Adams, Asia director of Human Rights Watch. “This is the first sign of hope for victims after more than ten years since the end of the conflict—and now we need to see all those convicted of murder behind bars.”
The human rights organizations expressed concern that the government might refuse to seek to take measures to enforce the Kavre court’s verdict given its prior record on this and thousands of other conflict-era cases.
In a disturbing example, the police have yet to implement a 13 April 2017 Supreme Court order to arrest Bal Krishna Dhungel, a Maoist politician convicted of a 1998 murder.
Dhungel has yet to serve out his life sentence handed down by the courts.
The court gave the police a week to execute its order and present Dhungel before it.
“The Kavre district court has done its job, reaffirming the independence of the judiciary from political and military pressure, and holding perpetrators of serious crimes committed during the conflict to account,” said Biraj Patnaik, Amnesty International South Asia Regional Office Director. “Now the authorities must do their job by breaking with the practice of successive past governments that ignore and undermine the courts’ decisions. We expect the government to promptly implement this week’s ruling.”
Contact
Nikhil Narayan, ICJ’s South Asia Senior International Legal Adviser, e: Nikhil.narayan@icj.org
Sam Zarifi, ICJ’s Secretery General, e: sam.zarifi@icj.org
