Nepal is a land of minorities, be it in terms of religion, ethnicity, caste, gender, sexual orientation, political opinion or geography. For centuries, only a small ruling clique enjoyed all rights and privileges whilst the rest of Nepalis, including women, Dalits, Janajatis, Madhesis, people from the Far West, and sexual and gender minorities, lived less privileged lives. Nepal now appears on track to recognise all Nepalis equally, with opportunities opening up for the marginalised minorities too.
The promotion and protection of the rights of persons belonging to minorities contribute to political and social stability and peace. They are also important to achieve effective development. Development that fails to understand the particular situations and rights of minorities can cause further marginalisation of minorities, making their situation worse -- for example, through denial of access to education, heath and job; displacement and loss of land; or discrimination. Non-discrimination is a crucial for protection of minorities, hence the importance of defining the new constitution to champion this.
The ICCPR, adopted by the UN General Assembly in December 1966, which Nepal is a party to, supersedes national law. Under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Nepal ratified in 1991, gender-based violence in both public and private may be considered a form of gender-based discrimination that CEDAW prohibits. These two articles suffice to ensure protection from discrimination against third-gender, homosexual, bisexual and inter-sexeds persons in Nepal.
Recognising the situation of communities such as sexual and gender minorities, Badi women, people with disabilities, janajati groups, and small religious groups in a collective dimension compromises our ability to effectively challenge the historical, social and political structures that enabled the discrimination and invisibility to persist.
In addition to objective criteria such as cultural distinctiveness, the subjective principle of self-identification is also very important. Moreover, the individualâ€™s right not to identify h/herself as a part of a minority group is unconditional. Characteristics of minority rights, which would ideally be protected in the new constitution of Nepal through incorporation of articles or through the mainstreaming of certain principles, include, protecting a minorityâ€™s existence; promoting identity (both the right of individuals to choose gender identity, sexual orientation, disability, ethnic, linguistic or religious groups they wish to be identified with, and the right of those groups to affirm and protect their collective identity); ensuring non-discrimination, including ending indirect discrimination; and ensuring participation of members of minorities in the decisions that affect them. This includes participating equitably in the benefits of development.
In addition to these parameters, three other issues should be highlighted as of general importance to the protection of minorities: addressing land and property issues (particularly when identity is bound up with a particular place); education (ensuring an education system where everyoneâ€™s gender, sexual orientation, physical condition, religion, language and culture is respected); and gender issues (for example, where third genders and women within minorities suffer double discrimination).
Minority rights thus not only require (a) recognition, but also (b) positive action. Positive actions can include a range of special measures ranging from affirmative action to ensuring the recording of fully accurate population census and producing desegregated data.
Minorities exist in all countries of the world. Stark denial of this fact has, throughout history, been one of the root causes of a wide range of tensions ranging from civil unrest to ethnic strife and insurgency. In Nepal, it has led to economic, social, and political instability, migration and insurgency. Nepal alone accounts for hundreds of ethnic, linguistic, and religious groups within its borders.
These elements should be taken into consideration when defining the new constitution for federal Nepal -- whether to cast aside the application of minority rights on the grounds of them being too complex or of little relevance in Nepal. Invisibility, which persisted for so long under the guise of a â€˜class/cast democracyâ€™ in Nepal can be challenged successfully within the new constitution by protecting minority rights, rather than focusing on individual experiences of discrimination alone.
In summary, preventing discrimination, though vital for minorities, is not sufficient. Minority rights, which extend beyond traditional understanding of anti-discrimination, address the issues of those who may not want to be treated the same as others, specifically if that means losing their identity.
Pant is CA member, CPN-United