Nepal - Legal Reference Brief: Protective Laws Related to HIV, MSM and Transgender People by UNDP in Asia and the Pacific

Legal Reference Brief Nepal Protective Laws related to HIV, Men who have Sex with Men and Transgender People This brief was researched and drafted by Ms Sushama Gautam and Ms Priyadarshani Sherchan

Abstract: This Legal Reference Brief is an output of the South Asian Roundtable on Legal and Policy Barriers to HIV, held in Kathmandu from 8-10 November 2011 (Roundtable Dialogue). The Reference Brief reports on the results of research on key protective laws focused on HIV, men who have sex with men (MSM) and transgender people. This Reference Brief is not intended to be a complete analysis of the countryâ&#x20AC;&#x2122;s legal and policy framework or social environment. The objective of this Reference Brief is to provide an entry point for discussion on protective laws in Nepal. Reference Briefs were prepared by legal researchers in Bangladesh, India, Nepal, Pakistan and Sri Lanka to support the development of Regional Legal Reference Resource. The Regional Legal Reference Resource documents key protective laws focused on HIV, men who have sex with men (MSM) and transgender people in the abovementioned five countries in South Asia. The two primary objectives of the Regional Legal Reference Resource were to build the capacity of legal professionals to analyze protective laws (focusing on people living with HIV, MSM and transgender people);1 and develop a resource to support legislative drafting, law reform and advocacy initiatives. The Roundtable Dialogue was a joint initiative of SAARCLAW, the International Development Law Organization (IDLO), the United Nations Development Program (UNDP), the Joint United Nations Program on HIV/AIDS (UNAIDS) and the World Bank; under an overarching goal to promote an enabling legal environment and strengthen the legal response to HIV in South Asia. The Roundtable built upon the momentum of the Asia Pacific Regional Dialogue of the Global Commission on HIV and the Law (February 2011) and supports the human rights commitments of the Economic and Social Commission for Asia and the Pacific (ESCAP) under Resolution 66/10 and 67/9. 1â&#x20AC;&#x192;This objective was advanced in the process of researching and drafting national legal reference briefs.

UNDP and IDLO are inter-governmental organizations and these NHRI Legal Reference Briefs are preliminary documents and intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The designations and terminology employed may not conform to United Nations practice and the views expressed in this Publication are the views of the authors and do not necessarily reflect the views or policies of the United Nations, nor of IDLO or its Member States. UNDP and IDLO do not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. The partners welcome any feedback or comments regarding the information contained in the Publication. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization (and the United Nations Development Programme). These Legal Reference Briefs were supported by UNDP under the South Asia Multi-country Global Fund Round 9 Programme (MSA-910-G01-H).

For further information contact: International Development Law Organization Headquarters Viale Vaticano, 106 00165 Rome, Italy Email: idlo@idlo.int Web: http://www.idlo.int Twitter: @idlonews

United Nations Development Programme UNDP Asia-Pacific Regional Centre United Nations Service Building, 3rd Floor Rajdamnern Nok Avenue, Bangkok 10200, Thailand Email: aprc@undp.org Web: http://asia-pacific.undp.org

Legal Reference Brief - Nepal

Introduction Since the first case of HIV was reported in 1988, Nepal has evolved from a low prevalence country to a concentrated epidemic.2 By the end of 2009, an estimated 64,000 adults and children (up from 60,000 in 2001)3 were living with HIV, of which 20,000 were women aged 15 years and above.4 In addition, there were an estimated 4,300 people newly infected with HIV and 4,700 deaths related to AIDS in 2009, up from 4,000 deaths in 2001.5 As of 2009, an estimated 29.4% of all HIV infections occurred in labour migrants, followed by 6.2% in men who have sex with men (MSM), 5% in clients of female sex workers (FSWs), 4.2% in injecting drug users (IDUs), and 1.0% in FSWs themselves (aged 15 years and above). In addition, low-risk male and female populations accounted for 26.2% and 28% of HIV infections, respectively.6 The risk factors contributing to the rise in HIV epidemic include sex work and sharing of unclean needles by injecting drug users in the highways and major towns as well as migration of people to India and other countries due to poverty and lack of livelihood opportunities, in selected hill districts. Stigma and discrimination against people living with HIV, which discourages access to available HIV-related services, has also contributed to the HIV epidemic.7 Recognising legal and policy barriers to HIV prevention, treatment, care and support services in South Asia, the International Development Law Organization (IDLO), the United National Development Programme (UNDP), SAARCLAW, the World Bank, and the Joint United Nations Programme on HIV/AIDS (UNAIDS) convened the South Asia Roundtable Dialogue: Legal and Policy Barriers to the HIV Response in Kathmandu from 8-10 November 2011 (Roundtable Dialogue). The Roundtable Dialogue was a follow-up to the Asia-Pacific Regional Dialogue of the Global Commission on HIV and Law held during February 2011 at Bangkok. The key outcomes of the Roundtable Dialogue were the identification of law and policy issues that act as barriers to effective HIV responses and the development of recommendations linked to these issues. One of such recommendations was the strengthening of the enabling legal environment for the PLHIV and high-risk population that (i) protects them from stigma and discrimination; (ii) enables them to access critical services; and (iii) ensures accessible and affordable recourse to the law. Pursuant to these recommendations, review and analysis of laws protecting people with diverse sexual orientation and gender identity (SOGI) and PLHIV in Bangladesh, India, Nepal, Pakistan and Sri Lanka, was undertaken. This Legal Reference Brief is the Nepal chapter to the study. It is proposed that this document will serve as reference resource for future legislative drafting, law reform initiatives and advocacy initiatives with respect to PLHIV and people with diverse sexual SOGI in Nepal. It is notable that Forum for Women, Law and Development (FWLD), in collaboration with National Centre for AIDS and STD Control, USAID and POLICY Project Nepal, was involved in conducting a legal audit of the existing laws, policies and executive orders in order to understand the effectiveness of the Nepali legal provisions in addressing the HIV/AIDS epidemic in 2003. The objective of the legal audit was to measure, by way of an audit tool comprising of a questionnaire, the extent to which Nepal’s legal system is consistent with the standards contained in the International Guidelines on HIV/AIDS and Human Rights, 1996. The results of the legal audit were published in a report titled HIV/AIDS and Human Rights: A Legislative Audit, in June 2004.8 The scope of the report was limited to specific questions forming part of the audit tool. The researchers of this paper are not aware of any further, or more a recent national studies on HIV and the law in Nepal. 2

Ministry of Health and Population, National Centre for AIDS and STD Control, Nepal Country Progress Report 2012 (2012) at 4, available at: http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2012countries/ce_NP_Narrative_Report.pdf (accessed 7 November 2012).

3 UNAIDS, Global report: UNAIDS report on the global AIDS epidemic 2010, (2010) at 187, available at: http://www.unaids.org/en/media/ unaids/contentassets/documents/unaidspublication/2010/20101123_globalreport_en.pdf (accessed 7 November 2012). 4 Ibid at 189. 5 Ibid at 192. 6 National Centre for AIDS and STD Control National Estimates of HIV Infections Nepal, August 2010 (2010) at 24. 7 Ministry of Health and Population, National Centre for AIDS and STD Control, UNGASS Nepal Country Progress Report 2010, (2010). 8 Forum for Women Law and Development, “HIV/AIDS and Human Rights: A Legislative Audit”, Publication No. 76, (Kathmandu, 2004).

1. Legal environment in Nepal – Overview Nepal has a mixed system of common law with a strong influence of Hindu legal tradition. The legislature is responsible for the enactment of the laws, which are interpreted by the courts. The Supreme Court has the authority to declare a law void if it finds such law to be inconsistent with the Interim Constitution of Nepal 2007.9 Nepal has been active in ratifying/acceding to or adopting a large number of international instruments. Nepal has a monist approach and strong treaty jurisprudence to international law. Therefore, the protective provisions under the international instruments with respect to PLHIV and people with diverse SOGI are automatically enforceable in Nepal without any further action by the legislature. The Supreme Court of Nepal has been proactive in applying protective provisions contained in the international instruments and the domestic laws to adequately protect the interests of PLHIV and people with diverse SOGI. In this context, the decision in the case of Sunil Babu Pant v. Government of Nepal10 was significant in (a) directing the Government of Nepal to make necessary arrangements towards enacting new laws and amending existing discriminatory laws in order to ensure that individuals with different SOGI can exercise rights equal to other citizens of Nepal, and (b) recognizing that sexual intercourse between such individuals shall not come within the definition of “unnatural sex” under Chapter 16 (on bestiality) of the Country Code 1963 that criminalises “unnatural sex”. However, the Government is yet to take necessary measures to give full effect to this decision.

2. International Law and Conventions Relating to HIV/AIDS a. Relevant Provisions Nepal has signed and ratified or acceded to/adopted a number of international human rights instruments, including: •

the International Covenant on Civil and Political Rights, 1976 (ICCPR) - acceded to 14 May 1991;

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the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) – acceded to 14 May 1991;

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the Convention on the Rights of the Child 1989 (CRC) - ratified 14 September 1990;

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the Convention on the Elimination of All Forms of Racial Discrimination 1963 (CERD) – acceded to 30 January 1971;

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the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) – ratified 22 April 1991; and

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the Convention on the Rights of Persons with Disabilities 2006 (CRPD) - ratified 7 May 2010.

The provisions under these international instruments that, directly and/or indirectly, protect PLHIV and people with diverse SOGI groups are as follows: Provisions against discrimination: Article 7 of the Universal Declaration of Human Rights (UDHR) provides that all are equal before law and are entitled without discrimination to equal protection of the law. All of the above international instruments provide that the rights and freedoms set forth within shall be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.11 The CRC provides that the state parties shall respect and ensure the rights

Article 107 of the Interim Constitution of Nepal 2007 states “ Jurisdiction of the Supreme Court: (1) Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground; and the Supreme Court shall have extra-ordinary power to declare that law to be void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with this Constitution.” Writ No. 917 of the year 2064 BS (2007 AD), Supreme Court Division Bench, 2007.

11 Article 2(2) of the ICESCR provides “The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 2(1) of the ICCPR states “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within in territory and subject to its jurisdiction the rights recognized in the present

Legal Reference Brief - Nepal

set forth therein without discrimination on the basis of any disability. These provisions may be invoked against any form of discrimination towards PLHIV and people with diverse SOGI. Although the terms ‘gender orientation’ or ‘sexual preference’ or ‘disability’ or ‘disease’ are not covered (other than in case of the CRC which covers ‘disability’); such terms may be read into the relevant provisions as the provisions are inclusive in nature. Right to physical and mental health: Article 25 of the UDHR, Article 12 of the ICESCR and Articles 24 and 25 of the CRC, provide for right to highest attainable standards of physical and mental health.12 These provisions may be used to ensure that HIV prevention and control services are available along with necessary infrastructure and personnel. Right to information and education: Article 19 of the UDHR and Article 19 of the ICCPR provide for freedom to receive and impart information and ideas through any media. Further, Article 17 of the CRC provides for obligation on the part of the State Parties to ensure that the child has access to information aimed at promoting his or her physical and mental health.13 These provisions can be invoked to ensure that the State provides information and education on HIV prevention and sexual health. Right to privacy: Article 12 of the UDHR, Article 16 of the CRC and Article 17 of the ICCPR provide that no once shall be subjected to arbitrary interference with his privacy and shall have legal protection against such interferences.14 These provisions guarantee the right of non-disclosure to third parties and confidentiality regarding a person’s gender orientation, sexual preference and HIV test results.

b. Application of International Law and Conventions in Nepal Article 156 of the Interim Constitution of Nepal 2007 (Constitution) provides that the ratification of, accession to, acceptance of or approval of treaties or agreements that Nepal is to become party shall be determined by law. It further provides that ratification of, accession to, acceptance of or approval of treaties or agreements on (a) peace and friendship, (b) security and strategic alliance, (c) boundaries of Nepal, and (d) natural resources and distribution of their uses, shall require consent of 2/3 majority of the total number of the members of the legislature-parliament existing. In all other cases the ratification of, accession to, acceptance of or approval of

Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 2(1) of the CRC- states “(1) State Parties shall respect and ensure rights set forth in the present Covenant to each child within its jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Article 2 of the Universal Declaration of Human Rights (UDHR) states “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth of other status.” 12

Article 25 of the UDHR states “(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” Articles 12 of the ICESCR provides “The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: ….(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Articles 24 of the CRC provides “(1) States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.”

Article 19 of the UDHR states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19 of the ICCPR provides “(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include 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 of his choice.” Article 17 of the CRC states “States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.”

Article 12 of the UDHR states ”No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Article 16 of the CRC provides “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. (2) The child has the right to the protection of the law against such interference or attacks.” Article 17 of the ICCPR provides “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.”

treaties or agreements may be done at a meeting of the legislature-parliament by a simple majority of the members present. Section 9(1) of the Nepal Treaty Act 1990 (Treaty Act) states that, upon a treaty/convention/agreement being ratified, acceded to or approved as stated above, the provisions of such a treaty, convention or agreement, shall be the law of the land and at par with the existing domestic law. To the extent any provision of such a treaty, convention or agreement conflicts with the provision of the existing domestic law, the provision of the treaty/ convention/agreement shall prevail. This provision therefore, prescribes a monist legal system approach. Section 9(2) of Treaty Act further provides that in the event Nepal is a signatory to a treaty, convention or agreement but the same has not been ratified, acceded to or approved in the manner provided above and the provisions of such treaty, convention or agreement imposes additional obligations for enforcement of which new law may need to be enacted, then the Nepal government shall, as soon as expedient, enact such law. It is important to note that the provisions of international human rights instruments have been used time and again by the Supreme Court of Nepal to safeguard the various human rights provisions contained therein.15

3. Domestic Laws Relating to HIV/AIDS a. Constitutional Provisions Right to equality: Article 13 of the Constitution provides for right to equality as a fundamental right as per which all citizens are equal before the law and no discrimination shall be made against any citizen in the application of law on the grounds of religion, color, sex, caste, tribe, origin, language or ideological conviction or any of these. Article 13 further states that the State shall not discriminate against any citizen on the grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these. However, providing for special provisions for protection, empowerment or advancement of, inter alia, the disabled or those who are physically or mentally incapacitated shall not be considered discriminatory.16 While Article 13 confers right to equality to all citizens, the right of non-discrimination on various grounds does not include ‘gender identity’ and ‘sexual orientation’. Further, while Article 13 permits laws to be made for making provisions for protection of the disabled and the physically or mentally incapacitated, it does not specifically provide for right of non-discrimination based on disability or mental or physical incapacitation. Therefore, right of equality and non-discrimination of people with diverse SOGI and PLHIV does not appear to have been specifically protected. The Supreme Court of Nepal in the case of Sunil Babu Pant v. Government of Nepal made a judicial comment to the Constituent Assembly to make clear provisions in the new Constitution “guaranteeing non-discrimination on the ground of ‘gender identity’ and the ‘sexual orientation’ besides ‘sex’ in line with the Bill of Rights of Constitution of South Africa.” 17 It further directed the Government of Nepal to make necessary arrangements to enact new laws and amend existing discriminatory laws so that all individuals with different sexual orientations and gender identities can exercise rights equal to other citizens of Nepal. In this case the petitioner had challenged various provisions of law, including the property rights law, marriage law, citizenship law, which discriminated against people of different gender orientation and sexual identities. The petition included challenges to No. 1 and No. 4 of Chapter 16 of the Country Code 1963 (Country Code)18 which criminalizes homosexuality by criminalizing

See Ananda Mohan Bhattarai, (ed.) The Landmark Decisions of the Supreme Court, Nepal on Gender Justice (Nepal: National Judicial Academy/UNIFEM, 2010).

Article 13 of the Interim Constitution of Nepal states “(1) All citizens shall be equal before the law. No person shall be denied the equal protection of the laws. (2) No discrimination shall be made against any citizen in the application of general laws on grounds of religion, color, sex, caste, tribe, origin, language or ideological conviction or any of these. (3) The State shall not discriminate against citizens among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these. Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of women, Dalits, indigenous peoples (Adibasi, Janajati), Madhesi or farmers, workers, economically, socially or culturally backward classes or children, the aged and the disabled or those who are physically or mentally incapacitated. (4) No discrimination in regard to remuneration social security shall be made between men and women for the same work.”

Writ No. 917 of the year 2064 BS (2007 AD), Supreme Court Division Bench, 2007.

No 1 of Chapter 16 of the Country Code states “No one may penetrate an animal or make an animal penetrate him/her or may do or make another person do any kind of unnatural sex.” No 4 of Chapter 16 states “In this chapter, not mentioned in other sections, anyone who

Legal Reference Brief - Nepal

‘unnatural sex’. The Supreme Court, in delivering its decision, examined Article 13 of the Constitution which provides that every citizen and every person shall obtain rights on equal basis such as the right to have one’s own identity and the same cannot be restricted by laws that are discriminatory and arbitrary. It acknowledged that the existing property laws, citizenship related laws and the law of marriage appear to be male and female sex specific and therefore noted that there is a need to amend these laws such that people with different gender orientation and sexual identities also have equal access to the rights guaranteed by such laws. Right to privacy: Article 28 of the Constitution defines the right to privacy as a fundamental right. Article 28 states that “Except in circumstances provided by law, privacy in relation to the person and to their residence, property, documents, records, statistics and correspondence, and their reputation are inviolable.” The right to privacy becomes important in protecting the right of PLHIV and people with diverse SOGI against disclosure of their HIV test results, sexual orientation or gender identity. Although the right to privacy should also protect against mandatory testing, under the Infectious Disease Control Act 1963 (Act), the Government of Nepal may issue any order to prevent the spread of infectious diseases. While there is no provision of mandatory testing for HIV, relying on section 2(1) mandatory test orders may be issued at any time to achieve the objectives of the Act.19 There is currently no specific HIV legislation and the Act does not provide for informed consent for testing for any diseases. The Supreme Court has dealt with issues relating to privacy. In the case of Sunil Babu Pant v. Government of Nepal (noted above), on the issue of Chapter 16 of the Country Code criminalizing homosexuality, the Supreme Court, founding its arguments on fundamental right to privacy contained in the Constitution, clarified that the aforesaid provisions did not apply to homosexuals and transsexuals.20 The Supreme Court in its decision stated: “No one has the right to question how two adults perform sexual intercourse and whether this intercourse is natural or unnatural. In the way the right to privacy is secured to two heterosexual individuals in sexual intercourse, it is equally secured to the people of third gender who have different gender identity and sexual orientation. In such a situation, therefore, gender identity and sexual orientation of the third gender and homosexuals cannot be ignored by treating the sexual intercourse among them as unnatural.” 21 Further, in the case of Forum for Women, Law and Development v. Government of Nepal and others,22, the petitioner contended that although Article 28 of the Constitution and the various international human rights ratified or acceded to by Nepal, provide for right to privacy, no specific provisions exist to protect the privacy of PLHIV who were involved in litigation. The petitioner contended that if the privacy of PLHIV is not protected then they would be unable to exercise their right of judicial remedy, due to the stigma surrounding HIV. The Supreme Court issued a directive order to the Prime Minister and the Office of the Council of Ministers as well as the Ministry of Law, Justice and Parliamentary Management to enact law for maintaining privacy in litigation in which victim women or children or PLHIV are involved. The law in this regard has not come into force yet, however the Supreme Court has issued guidelines, which are required to be complied with until the relevant law comes into force. The guidelines require that in the aforesaid lawsuits, the ‘personal introductory information’23 of a PLHIV is does or makes someone practice unnatural sex may be sentenced to one-year jail or 5,000 NRS fine.” Note: The English translation of all the domestic laws have been sourced from the website of the Law Commission of Nepal (http://www.lawcommission.gov.np/). 19

Section 2(1) - Where any infectious disease develops or spreads or is likely to spread on the human beings throughout the Nepal or any part thereof, Government of Nepal may take necessary action to root out or prevent that disease and may issue necessary orders applicable to the general public or a group of any persons.

Writ No. 917 of the year 2064 BS (2007 AD), Supreme Court Division Bench, 2007.

Ibid.

22 Sapana Pradhan Malla v Office of Prime Minister and Council of Minister and Others, Writ No. 3561 of the year 2063 B. S (2006). 23 Section 2(b) of the Guidelines states “’Personal Introductory Information’ shall signify, (1) all the related description regarding disclosure of the identity including name, family title, address, etc. of the victim women in the context of the cases mentioned in sub-clause (1) of Section 2(a); (2) all the related description regarding disclosure of the identity including name, family title, address etc. of the children who are involved as a party in the context of the cases mentioned in sub clause (2) of Section 2(a); (3) all the related information regarding disclosure of the identity of the persons affected or infected with HIV/AIDS in the context of the cases mentioned in sub clause (3) of Section 2(a).Section 2(a)- ‘Lawsuit’ means, for the purpose of these Guidelines, the following types of cases specified by the concerned official after making a decision on protecting the privacy of the personal introductory information:(1) the criminal cases, requiring protection of privacy on the basis of the nature of the case and the impact that they can leave on the victims, having women as victims and including rape, abortion, sexual abuse, transactions in human beings, trafficking in human beings, incest and violence against women;

kept confidential at the time of registration of the case, and is maintained, even after the disposal of the case.24 It further lays down the rights and duties of the concerned authorities (investigating, judicial and implementing bodies) in maintaining confidentiality of personal introductory information of such persons.25 Right to information: Article 27 of the Constitution recognizes the right to information as a fundamental right and states that every citizen shall have the right to demand or obtain information on any matters of concern to him/ her or to the public so long as the right of privacy contained in the Constitution or any other law is not violated.26 The Supreme Court in the case of Gopal Krishna Shiwakoti v. HMG/N and Others discussed Article 16 of the Constitution of Nepal 1990, which had a similar provision on right to information as contained in Article 27 of the present Constitution.27 The Supreme Court held that the government has an obligation to provide information on any matter of public interest, including public health, and that the Court may fill the gap if any procedural difficulty arises in the application of this right. Therefore, citizens can invoke Article 27 to demand access to information on HIV from the government. Recently, the Government of Nepal passed the Right to Information Act and created the National Information Commission of Nepal.28 Constitutional remedy against violation of fundamental rights: Article 32 of the Constitution provides for constitutional remedy under Article 107 in case of violation of fundamental rights under Part 3 of the Constitution.29 Under Article 107, any citizen can file a petition in the Supreme Court to have a law or any part

(2) (3)

the criminal cases having children as a party and tried by a juvenile court or Juvenile Bench; the cases related to HIV/AIDS affected or infected persons where such information has been disclosed.”

24 Section 3 of the Guidelines states “Personal Introductory Information not to be Disclosed:(1) All the bodies including the investigating body, the body trying the case and the verdict implementing body shall have to protect the privacy of the persons appearing as a party to the cases mentioned in Section 2 in course of all the activities conducted right from the filing of the complaint to investigation, prosecution, trial, delivery of verdict, implementation of verdict and even during the period following the implementation of the verdict. (2) The privacy of the personal introductory information, not disclosed as mentioned in Clause (1), shall have to be protected in all conditions including the lawsuit, rejoinder, complaint, petition, report, appeal, decision or any public publication to be made by the court or any other body. (3) The concerned person cannot be compelled to disclose the introductory information kept secret in accordance with clause (1). (4) Nobody, including any party or his/her counsel, expert, witness, judge or employee, who appear at any stage of the legal proceedings and come to know about the personal introductory information kept secret, must not disclose to anybody the information thus kept secret. (5) The information kept secret according to these Guidelines shall not be disclosed even after the disposal of the case.” 25 Section 5 of the Guidelines states “Procedure for Maintaining Privacy:(1) The personal introductory information kept secret in accordance with Section 3 must be recorded on a separate page and sealed in an envelope, and a separate introductory name or number or indication mark must be given to indicate the information kept private and that must be certified by the concerned authority. (2) If the privacy of any document or evidence needs to be protected for the sake of maintaining secrecy of the personal introductory information it must be sealed and its details mentioned on a separate sheet of paper and attached to the case file. (3) For the sake of protecting the privacy of the information kept secret, the concerned court or office must make arrangements for creating a separate roster of such case files, giving indication marks and preserving the records. (4) If any person requests for protecting the privacy of his/her personal introductory information, it shall be as decided by the concerned official whether or not to protect the privacy as requested. In case the personal information is to be kept secret as requested in any case, the reasons justifying such a decision must be mentioned in a written form.” Section 6 of the Guidelines states “Introduction: (1) Notwithstanding the presence of a person, whose introductory information has been kept secret in course of investigation or proceedings of the case, the introductory matters relating to him/her shall be mentioned only by the name, number or indication mark assigned to him/her. His/her signature, too, shall have to be made by that very symbol, name, number or indication mark. (2) The person whose personal introductory information has been kept secret in accordance with these Guidelines must be given an identity card mentioning his symbol, name, number or indication mark.” Section 7 of the Guidelines states “Summons, Notice and Correspondence:- While issuing any summons, subpoena or notice to or corresponding with the persons, whose introductory information has been kept secret, it must be executed by using his/her symbol, name, number or indication mark. If the other party asks for official introduction regarding such information, the information shall have to be given by opening the sealed particulars after making arrangements for preventing unnecessary disclosure of the personal introductory information thus kept secret, and after the completion of the work it must be resealed.” 26

Article 27 of the Interim Constitution of Nepal states “Right to information: Every citizen shall have the right to demand or obtain information on any matter of his or her interest or of public interest. Provided that nothing shall be deemed to compel any person to provide information on any matter of which confidentiality is to be maintained by law.”

Nepal Kannon Patrika (NKP) 2051 B.S., Vol. 4 at 255.

28 Right to Information Act (2007), Right to Information Regulations (2009), available at: http://www.nic.gov.np/download/rti_act_eng_ official.pdf (accessed 7 November 2012). 29

Article 32 of the Interim Constitution of Nepal states “Right to constitutional remedies: The right to proceed in the manner set forth in

Legal Reference Brief - Nepal

thereof void on the grounds that it violates or imposes restrictions on the enjoyment of, the fundamental rights conferred by the Constitution. The Supreme Court has the authority to declare the law void ab initio or from the date of the decision if it finds such law to be inconsistent with the Constitution. Further, the Supreme Court has the right to issue appropriate writs, including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto, for the enforcement of fundamental rights conferred by the Constitution.30

b. Legislation i. Anti-discrimination legislation Nepal does not have any legislation specifically designed to protect PLHIV and people with diverse SOGI. However, there are other provisions within Nepalese law dealing with discrimination that are applicable for all citizens which should be mentioned: •

Country Code: No. 10(B) of Chapter 19 (on Decency/Etiquette (Adal)) of the Country Code provides that in the event a person commits torture or banishes any sick (ill) person from his or her place of residence by rejecting or doing any inhuman or degrading treatment to him or her, on the ground that he or she has suffered from any disease, the person shall be liable to the punishment of imprisonment for a term ranging from 3 months to 2 years or a fine of NRS 5,000 NRS to 25,000, or both.31

•

The above provision of the Country Code criminalizes ill-treatment and/or ostracism of any person suffering from a disease and could be interpreted to cover ill-treatment and/or ostracism of PLHIV. Notably, the provision seems to cover ill-treatment at the societal level only, it is not broad enough to cover ill-treatment at the institutional level. An interesting test of this provision would be an incident where a PLHIV was removed from his/her job is consequently forced to move from his/her place of residence.

•

Civil Rights Act 1955: this Act states that, subject to the provisions of the prevailing law, no citizen shall be denied equality before law and equal protection of law.32 It further states that appointments to the Government or any other public shall be based on merit and that there shall be no discrimination on the grounds of colour, gender, caste and tribe or any of them, in making such appointments.33 The provisions of the Civil Rights Act do not prohibit discrimination in appointment to the Government or public service on the basis of gender identity or sexual orientation or on the basis of a person being infected with a disease.

•

Protection and Welfare of the Disabled Persons Act 1982: this Act aims to protect and promote the interest of the disabled persons: to prevent and abolish the circumstances leading one to be disabled; and to make the

Article 107 for the enforcement of the rights conferred by this Part (Part 3: Fundamental Rights) is guaranteed.” 30

Article 107 of the Interim Constitution of Nepal states “Jurisdiction of the Supreme Court: (1) Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground; and the Supreme Court shall have extra-ordinary power to declare that law to be void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with this Constitution. (2) The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution or for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such right or settle such dispute. For these purposes, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto. Provided that, except on the ground of absence of jurisdiction, the Supreme Court shall not under this Clause interfere with any proceedings and decisions of the Legislature-Parliament concerning violation of its privileges and penalties imposed therefore.”

No. 10(B) of Chapter 19 of the Country Code states “If a person accuses another person of a witch or banishes him or her from his or her place of residence on such accusation or excludes him or her from social activities or does any other inhuman or degrading treatment or commits torture or banishes any ill (sick) person from his or her place of residence by rejecting or doing any inhuman or degrading treatment to him or her on the ground that he or she has suffered from any disease, the person shall be liable to the punishment of imprisonment for a term ranging from 3 months to 2 years or a fine of NRS 5,000 NRS 25,000, or both.”

Section 3 of the Civil Rights Act provides “Equality in the eye of law: No citizen shall be denied equality before the law and equal protection of law subject to the provisions of prevailing laws.”

Section 4 of the Civil Rights Act provides “ No discrimination on the ground of Religion, Caste, Tribe or Gender: In the course of providing appointments, the Government of Nepal shall appoint only in the ground of merit and no citizen shall be discriminated on the ground of religion, colour, gender, caste, tribe or any of them in the appointment of government or any other Public Service.”

disabled persons capable members as well as actively productive citizens of the society, by making necessary welfare provisions for the health, education, care, training of the disabled persons and their right to equality and employment. As Nepal has now also ratified the Convention on the Rights of Persons with Disabilities, the Supreme Court of Nepal has ruled that the law should be amended to be in line with rights under the CRPD. •

While no law specifically requires HIV testing for appointment, promotion, training, or other facilities for employees in government, public or private sectors, there is a mandatory provision in the public sector requiring submission of a certificate of health stating that the candidate is not suffering from a serious or contagious disease, before receiving a public appointment, including civil service.34 Notably, an employee may still be appointed if a certified doctor recommends that the candidate can carry out their prescribed functions.35 Further, for appointments in the Royal Nepalese Army,36 Nepal Police,37 and the Armed Police,38 the candidate must be declared healthy after receiving health check-up carried out by the prescribed medical board or doctor. Any medical and physical disability may be a ground for rejection.39

ii. Pending legislation concerning HIV/AIDS Although Nepal currently has various policies on HIV that include rights-based components, these policies do not have the force of law and thus are not binding or enforceable in Court. Further, given the inadequacies in the existing law relating to HIV and the protection of rights of the PLHIV and key affected populations, in both public and private spheres, the need for HIV-specific legislation, cannot be exaggerated. The authors in this section will therefore analyse the HIV and AIDS (Prevention, Control, Treatment, Re-integration and Protection of Rights) Bill, 2067 (2010) (HIV Bill). This analysis is based on a draft of the HIV Bill dated 6 October, 2011, which this version was submitted by the HIV/AIDS and STD Control Board to the Ministry of Health and Population (MoHP) in 2010. The HIV Bill is currently being amended by MoHP pursuant to which it will be forwarded to the Ministry of Law and Justice (MoLJ) and finally tabled before Parliament for endorsement and enactment. The key protective provisions of the HIV Bill are as follows: Prohibition of discrimination: The HIV Bill provides that “no person shall be subjected to any form of discrimination because of his/her being HIV infected or on a suspicion that he/she is HIV infected”. “No public or private enterprise shall discriminate against any person because of his/her being HIV infected or on a suspicion that he/ she is HIV infected, in access or distribution of any facilities, from appointment, transfer or promotion or while nominating for training or study in any public or private enterprise. Such persons’ employment shall not be terminated by public or private enterprises nor shall his/her facilities be diminished or denied.” Further, “persons infected or suspected to be infected with HIV shall not be discriminated against in his/her familial and personal life through deprivation of his/her access to or exercise of rights under law”. Comments: Protection against discrimination in the workplace is an important aspect of the HIV Bill as the existing laws do not seem to recognize HIV as a workplace issue. Further, such protection has been granted to employees in both public and private sector. The HIV Bill prohibits: i.

discrimination or deprivation from employment or the work place or at a public place;

ii. discrimination related to use of public utilities;

Rule 19 of the Civil Service Regulation, 2050 (1993).

Schedule 5 of the Civil Service Regulation, 2050 (1993), Schedule 7 of the Nepal Television By-Laws, 2055 (1998).

Rule 4 (c) of the Royal Nepalese Army Recruitment Rules, 2019 (1963) Rule 3 (f) of the Royal Nepalese Army Recruitment, Promotion, and other various General Provisions Rules, 2020 (1964); Rule 5 (e) of the Army Legal Department (Recruitment, Promotion, and Terms of Service) Rules, 2019 (1960); Rules 6 and 7 of Boys (Recruitment and Terms of Service) Rules, 2028 (1971).

Rule 13 (J) of the Police Regulation, 2049 (1992).

Rules 8 and 9 of the Armed Police Regulation, 2060 (2003).

Forum for Women Law and Development “HIV/AIDS and Human Rights: A Legislative Audit”, Publication No. 76, Kathmandu, 2004 at 4344.

Legal Reference Brief - Nepal

iii. discrimination precluding enjoyment of any rights provided by law against person;

on the grounds that a person is HIV positive or on suspicion that the person is HIV infected. It is important to note that the earlier version of the HIV Bill extended this protection of non-discrimination to family members of the person infected or suspected to be infected with HIV (compared to the non-discrimination provision of the current version of the HIV Bill that does not protect the family members of the person infected or suspected to be infected with HIV, against discrimination). The earlier version of the HIV Bill also had special provisions for public and private enterprises which required employers to allow their HIV positive employees to work for as long as they are able to work. It further required the employers to provide such employees with supportive facilities like (i) adjustment in the time of work; (ii) availability of special equipment like mask, gloves; (iii) provisions for time to rest during work hours; (iv) flexibility to work part-time; and (v) providing for work appropriate to the physical condition of the employee. However, these important provisions are omitted from the current draft of the HIV Bill.

Confidentiality: The HIV Bill recognizes a person’s right to privacy and confidentiality of his/her HIV status: “a person shall not be required to disclose his HIV status unless otherwise required by the provisions of the HIV Bill of any other law in force.” The HIV Bill provides that “all the health professionals, people working in the health sector and any doctor, nurse, or other staff or worker in the government or the private sector, who have the responsibility to maintain documents or any records, reports or reports of health-related testing to keep confidential any details related to HIV and AIDS status of any person that comes to his/her knowledge in the course of his/her work.” Comments: The requirement of maintaining the privacy in relation to the person and his/her personal details is already ensured by the Constitution. The HIV Bill, by providing that no person shall be required to reveal his/her HIV status (unless otherwise required by law, see below), provides additional protection to such person’s right to privacy. Currently the HIV Bill only puts an obligation on the health workers who may have access to the HIV status of a person in the course of his counseling, test, treatment and care to maintain confidentiality of the same. The HIV Bill should impose similar obligation on any other person who may have direct or indirect access to such information. Information, education, and communication: The HIV Bill obligates the government to impart or cause to impart information on HIV, sexual and community health, in community and institutional schools, universities, religious and community schools by educating the pupils on the abovementioned subjects. Further, the HIV Bill also requires the government to impart education and information to the general public by conducting or causing to conduct awareness programs based on facts about the causes, treatment, prevention and control of HIV infection, and protection of rights of those infected with or affected by HIV. The HIV Bill also mandates governmental, nongovernmental and private enterprises to (a) display HIV-related educational and informational materials at a public location, (b) conduct or cause to be conducted educational activities for its workers/staff on HIV, and (c) disseminate and make or cause to make available, protective materials. The HIV Bill therefore identifies strategies in relation to addressing HIV through the workplace interventions. Comments: The HIV Bill should provide that in order to make the information accessible to all, such information should be multilingual, easy to understand and updated from time to time. Further, in case of organizations that deal with persons going on foreign employment, the government should conduct or require such organizations to conduct information sessions on HIV. The HIV Bill should also provide for risk reduction strategies for groups at higher risk of HIV infection such as sex workers, people with diverse SOGI and drug users. Such strategies may include distribution of condoms and clean needles as well as information dissemination programs that focus on such high-risk groups. Prohibition on mandatory testing: The HIV Bill prohibits mandatory testing of HIV unless otherwise provided in the HIV Bill. Testing for HIV and research on HIV may not be conducted without the consent of the concerned person. Instances in which the consent of the concerned person shall not be required for HIV testing are: (a) in the course of investigation of crime under the provisions of the HIV Bill (for instance to determine if a person has intentionally or negligently transmitted or cause to be transmitted HIV (an offence under the HIV Bill)), (b) pursuant to a court order, and (c) in the course of treatment of a minor or an individual who is unable to take his/her decision because of physical or mental state, based on a written consent or recommendation of such individual’s family member, and if no family member is available at the recommendation of the concerned hospital or the health officer.

Comments: With respect to the above provision the HIV Bill does not define the manner in which consent for HIV testing should be given. Consent should be defined as written consent out of free will, further, it should be an informed consent after being given full details about the risks, benefits and alternatives. Provision of counseling services: The HIV Bill requires that every individual who undergoes HIV testing to be given compulsory pre and post-test counseling by the testing agency. The HIV Bill further states that â&#x20AC;&#x153;Such counseling (pre and post-test counseling) shall be confidential.â&#x20AC;? The pre and post-test counseling shall be conducted in accordance with the regulations that may be framed in this regard. Comments: The regulations framed should state that at the time of pre and post-counseling, the presence of persons authorized to render psychological assistance shall be mandatory. Further, pre-testing counseling should necessarily comprise of counseling on the impact of testing on the health of the individual. Other protective provisions: The HIV Bill imposes an obligation on the Government to provide for certain special protective provisions for doctors, healthcare workers and other persons who may be associated with providing services related to HIV. In order to give better access to prevention, treatment and care services, the HIV Bill requires the Government to gradually make arrangement for the easy accessibility of HIV counseling, testing, medicine, treatment, and protective and promotional health care materials and services for prevention and control of HIV. The HIV Bill also imposes an obligation on the Government to make necessary arrangement for education, maintenance and social security of (a) children infected with HIV, and (b) widowed women infected with HIV having had lost their husbands to AIDS-related illnesses.

Conclusion While the Supreme Court of Nepal has been proactive in applying protective provisions contained in international instruments and domestic laws to adequately protect the interests of PLHIV and people with diverse SOGI, the Government of Nepal is yet to take necessary measures to give full effect to this decision. Given the prevalence of stigma and discrimination, and the impact of such on HIV prevention, treatment, care and support, Nepal would benefit from greater political commitment to uphold protective laws, and a serious analysis of the role and effect of the HIV Bill, as it currently stands.