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Supreme Court of Nepal
Division Bench
Initial Note of the Decision
21st December 2007 Friday at 2.30 PM
Where-at this petition on behalf of the minority people based on the sexual orientation and gender identity has come to be in submission. As the petition states the lesbian, gay, bisexual, transsexual and inter-sex persons, neither of whom fall under the categories of male and female are not able to obtain from the government offices identity documents, including the citizenship card on their own sex; as a citizen, are unable to enjoy the public facilities in any public offices including the study in teaching institutions; and, even from the public offices and officials bearing a public post received degrading and humiliating treatment; and hence demanded to repeal all current unilateral laws, which is based on the female and male notion and is discriminatory, and to protect the human and fundamental rights. Though, lesbian, gay, bisexual, transsexual and inter-sex or LGBTIs are not male or female in terms of sex, or masculine or feminine in terms of gender, they are natural persons. The Articles from 12 to 32 of the Chapter three of the Interim Constitution of Nepal has bestowed each Nepali citizen all fundamental rights. Though they are in minority, by virtue of being Nepali citizen, to enjoy those rights on their own identity are the fundamental rights of petitioners. Chapter Four of the Interim Constitution introduces the state's directive principles and policies. Through the policies formulated by the state, the petitioners have rights to be benefited from their own identity. The fundamental rights set forth in the constitution and the human rights enshrined in the international human rights treaties in which Nepal is a party, cannot be interpreted on a way that only male and female can enjoy it just because male and female gender are mentioned in the constitution. Aside from the male and female, the third sex such as LGBTI are as well natural persons and therefore LGBTI are entitled for enjoyment of the rights provided by constitution, law and the human right conventions. State has obligation to create such environment and formulate laws on that line; interpretation cannot be made in such a way that only male and female can enjoy those right and being LGBTI they cannot enjoy the same rights.
The right to freedom has been set forth in the Article12 (2). This Article should be regarded as right to life. The term female and male has not been included in this Article 12. The freedom provided in this Article is for everyone. The term person refers to natural person. As LGBTI also are Nepali natural persons, they should be allowed to live in Nepali society with dignity through enjoyment of all freedoms.
The Article 12 (2) has provided the minimum freedoms for human being. The freedoms provided in Article12 is a liberty of enjoying own identity irrespective of one's sex. The freedoms set forth in the sub-clauses from (a) to (f) of the Article 12 (3) can only be restricted by making a law. These freedoms, by making a law, can reasonably be restricted only if such freedoms amount to undermine the sovereignty and integrity of Nepal, or jeopardize the harmonious relations subsisting among the peoples of various castes, tribes, religion or communities, or incitement to an offence, or on any act which may be contrary to decent public behavior or morality. The phrases "with dignity" in Article 12 (1) and "except for the provision in law" in the Article 12 (2) are very crucial. The terms in these two clauses should be interpreted in such a way that fundamental rights and human rights of female, male and LGBTI including homosexuals shall be furtherance; and not in a way of giving frustration.Except those who have undergone male-to-female or female-to-male sexual reassignment surgery to change their sex, all LGBTI persons would grow up through a natural process. Even within the persons born through a natural process some may have normal height and weight with smart disposition and sound mental condition, while others may be disabled, mentally retarded and handicapped. Some may born blind, deaf, dwarf or deaf-mute. The only difference here is their sex either as a male or a female would have determined. As their sex has been determined, no obstacles seem to be there to deprive them from enjoyment of their fundamental rights. But, for LGBTI, everything seems normal, but only in respect of the sex; they have different aspiration of having sex other than to male and female, including homosexuality. In this respect, if the law provides to handicapped, dwarf or deaf-mute etc. to enjoy their fundamental rights as provided by the constitution and international human rights conventions on their own identity, and does not provide the same opportunity to the LGBTI, merely because they have different sexual perception despite their normal condition, of enjoying the fundamental rights as set forth in the Chapter three of the constitution, and rights provided by other international human rights conventions for which Nepal is party and can be applied equally as Nepal laws, is an arbitrary law.
There is a constitutional provision under Article 12 (2) of our constitution stating that except for the provision in law no person shall be deprived of his/her personal liberty. While considering this provision, for the shake of public interest, the liberty may be restricted through legislation. The liberty guaranteed in the Article 12 is a right to live or right to life; and this right is an inalienable right for human being. In short, the liberty of this kind, are equally be bestowed to all
human being on the basis of humanity that is the rights to have one's own. And, no liberty can be
restricted by making discriminatory and arbitrary laws. But, under the property law, laws relating to the personal identity including citizenship and marital laws etc. are male or female sex specific, and hence, cannot protect the rights of LBGTI who due to the natural and biological factors may be attracted toward the same sex rather then opposite even though they may have born either as a male or a female, and based on their changed sex identity cannot pursue their business, including to establish conjugal life. A law, which restrict people to enjoy liberty on their own personal identity should be regarded a discriminatory. In this respect, the Article 10 of the ICESCR and the Article 23 of the ICCPR for both Nepal is a party and shall have the same effect as Nepal laws, only speaks about the marriage between male and female and not on the same-sex marriage, nevertheless, while giving an harmonious interpretation of the Article 2, 16 and 17 of the ICCPR, it is obvious that a state should provide recognition to every citizen with their personal identity or provide the right to have one's own identity. The ICCPR and the ICESCR has protected the right of privacy of everyone's family life without any interference in their personal dignity and self-respect, and pursuant to the Section 9 of the Nepal Treaty Act 1990, those provisions have same effect as Nepal laws, hence LGBTI are entitled to enjoy their rights to have their own identity on the basis of 'right to have one's own', without any discrimination. For this reason, a directive order in the name of the Government of Nepal is issued so as to formulate appropriate legislation or amend the existing legislation.
Also, right to same-sex marriage has been demanded in the petition; to this regard, however, it would be wise to do some research about the practices in respect of gay and lesbian marriage, and jurisprudences developed in other countries before reaching in conclusion, hence a directive orders is issued in the name of the Government of Nepal to form a committee in the following line so as to conduct a thorough study on the over whole issue and take initiatives as recommended by that committee.
Prospective committee members:
a) A medical expert doctor as assigned by the Ministry of Health;
b) A representative from National Human Right Commission;
c) A representative of the Ministry of Law;
d) One sociologist as assigned by the Government of Nepal;
e) A representative of Nepal Police, who is expert on this issue;
f) A representative of the Ministry of Population and Environment; and
g) Advocate Hari Phuyal, the legal representative of petitioners, who has also extended his support in this case as an amicus curie would be within the seven members of the committee.
This committee will deal with the part of the demand raised in this petition concerning the same-sex marriage and to this end conduct a research to figure out on what kind of practices and jurisprudence has been developed in other countries including the neighboring SAARC countries and at global level, and hence, a directive order has been issued on the name of defendant the Government of Nepal to make essential legal arrangement inline with the recommendation after provided by this committee in respect of the same-sex marriage of LGBTI. After giving a due consideration on the gravity of the subject matter the government itself can determine the procedure and tenure of the committee, hence this court does not see necessary to specify it. Be the report prepared by the committee made available to this court. |
