The Hon. Purna Bahadur Khadka
Minister of Home Affairs
Ministry of Home Affairs,
Singha Durbar, Kathmandu, Nepal
We are writing to express grave concern over the Nepalese Supreme Court’s proposed ban on activities, including advocacy, by or on behalf of lesbians, gay men, transgender people, and men who have sex with men. The threatened ban comes in the wake of repeated recent allegations of police misconduct against these communities. We urge your Ministry to respond to the Court’s recent writ by affirming that the basic freedoms of association, expression, and assembly must be enjoyed by all without discrimination. To do otherwise would be to endorse a flagrant violation of fundamental human rights. It would also silence those who document and defend against human rights abuses, and would send a dangerous message to those who perpetrate such abuses that they can do so with impunity.
As you are aware, on July 12, 2004, Nepal’s Supreme Court issued a writ demanding that the Ministry of Home Affairs show cause within fifteen days why “open homosexual activities” should not be banned. The writ came in response to a petition by a private attorney, dated June 18, requesting a ban on the activities of the Blue Diamond Society, a non-governmental organization working in the areas of sexual health and human rights. The petition accused the group of trying to “make homosexual activities legal.” The petition demanded the organization be barred on the grounds that homosexual conduct is prohibited by law in Nepal.
The Blue Diamond Society has engaged in outreach around issues of HIV/AIDS and other health concerns to communities of men who have sex with men and metis (transgender persons). It has also documented instances of police violence against these communities, called for official investigations, and raised public awareness about these abuses. These activities have frequently subjected the Blue Diamond Society and its constituencies to retaliation. Most recently, a demonstration organized by the Society on July 5 to protest recent alleged police abuses against metis was disrupted by police while marching peacefully from the Bhadrakhali Temple toward Singha Durbar to present a petition to the Prime Minister. Police reportedly dispersed the group violently, beating several of the protesters.
No express prohibition of adult, consensual homosexual conduct exists in Nepalese law. Paragraphs 1 and 4 of Part 4, Chapter 16 of Nepal’s Muluki Ain (National Civil Code) penalize “unnatural sex” with up to one year’s imprisonment. “Unnatural sex” is undefined in the Code. Although this law has been used by police to justify arrests of men suspected of having sex with men and of transgender people, a definition of the term that would criminalize consensual homosexual conduct between adults would in fact stand in violation of international legal standards. So, too, would any interpretation of the provision that would prohibit the outreach and advocacy work of the Blue Diamond Society.
In the landmark case of Toonen v. Australia, in 1994, the United Nations Human Rights Committee—which interprets and monitors state compliance with the International Covenant on Civil and Political Rights (ICCPR)—held that laws criminalizing consensual homosexual conduct violate both the right to privacy and protections against discrimination in the ICCPR. Articles 2 and 26 of the ICCPR, to which Nepal acceded in 1991, recognize that all persons are equal before the law and are entitled to protection from discrimination on any ground. The Human Rights Committee held that “sexual orientation” should be understood to be protected against discrimination under these provisions.
Restricting or halting the work of the Blue Diamond Society would represent a gross affront to the principles of freedom of association, assembly, and expression. These principles are also enshrined in international legal standards. Article 22 of the ICCPR states that “Everyone shall have the right to freedom of association with others.” Article 21 of the ICCPR protects the freedom of peaceful assembly. Article 19 of the ICCPR protects the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media.”
Prime Minister Surya Bahadur Thapa’s twenty-five-point “Commitment Paper” on human rights, issued in March 2004, states that “Government’s main focus will be to protect the rights of all the citizens.” The freedoms of expression and association were affirmed in items 15 and 16 of the paper. This public reaffirmation assisted the government to avoid a resolution at the annual session of the U.N. Commission on Human Rights condemning Nepal’s rights record. If the government proceeds with the threat to shut down the Blue Diamond Society, it will expose its own reiterated commitment to rights protections as little more than window-dressing.
For your Ministry to endorse the banning of the Blue Diamond Society’s work would send a particularly devastating message about the lack of security accorded human rights defenders in Nepal.
Article 5 of the U.N. General Assembly’s “Declaration on Human Rights Defenders” affirms that “everyone has the right, individually and in association with others … to meet or assemble peacefully,” and “to form, join, and participate in non-governmental organizations, associations or groups.” Article 7 affirms the right “to develop and to discuss new human rights ideas and principles and to advocate for their acceptance.” Indeed, the Special Representative of the U.N. Secretary General on Human Rights Defenders has called attention to the “special importance” of the work of “human rights groups and those who are active on issues of sexuality, especially sexual orientation. … These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by state forces but by other social actors.”
Human Rights Watch therefore calls on you:
• To abide by Nepal’s international obligations and affirm to the Supreme Court that there is no cause for banning “open homosexual activities” under Nepalese law.
• To ensure a full and impartial investigation of police abuse against metis, men who have sex with men, and members of other groups, reported by the Blue Diamond Society or other civil society agents.
• To discipline any individuals found responsible for wrongdoing as a result, and bring them to justice if they are discovered to have carried out illegal actions.
• To eliminate any grounds for ambiguity in Nepalese law by repealing the criminalization of “unnatural sex” in paragraphs 1 and 4 of Part 14, Chapter 16 of Nepal’s Code of 1963 (Muluki Ain).
Thank you for your attention. We look forward to your reply.
Lesbian, Gay, Bisexual, and Transgender Rights Project
Human Rights Watch
Cc: Ministry of Law, Justice, and Parliamentary Affairs