A written submission to the Committee on the Elimination of Racial Discrimination (CERD) by the Asian Legal Resource Centre and the Terai Human Rights Defenders Alliance
The Asian Legal Resource Centre (ALRC) and the Terai Human Rights Defenders Alliance (THRDA) wishes to draw the attention of the CERD Committee to the following concerns directly under the purview of the CERD Committee to review and make necessary recommendations to the Government of Nepal. These have been documented by us in the course of our work in Nepal, all of which clearly demonstrate the deeply engrained continuing racial discrimination in Nepal:
1. Problem of Statelessness: Nepal promulgated a new constitution on 20 September 2015. Article 10 of the Constitution stipulates that no Nepali Citizens shall be denied of Citizenship. Art.11 (3) stipulates that children of those parents who have received citizenship by birth before the promulgation of the Constitution will get citizenship by descent. However, the youths whose parents have received such citizenship certificates by birth are not getting their citizenship certificates. The Chief District Officers (CDOs), authorized to issue citizenship certificates by law, are refusing to issue certificates to the children of citizens by birth. They claim they are not able to issue citizenships to the children of citizens by birth due to lack of new federal law, and the old law that is Citizenship Act, 2007 does not allow them to distribute citizenship to the children of citizens by birth.
According to Home Ministry sources, in the year 2007 a citizenship distribution committee distributed 2,344,821 certificates of citizenship by descent; 170,042 citizenship by birth; 100, 224 citizenship certificates on the basis of marriage and 528 naturalized citizenship.
The children of those people who received citizenship by birth in 2007 are now adult but they are not getting citizenship. This causes them untold hardship. For instance, in Nepal, one cannot buy a SIM card without citizenship certificate. Without getting a citizenship certificate, one cannot avail oneself of state facilities and enjoy rights such as pursuing technical and higher education, opening bank accounts and applying for governmental or non-government jobs and neither can one get a passport to study or get a job abroad.
Most of the citizens by birth are from Madhesi community (people residing in the Terai area, southern plains of Nepal, who are culturally different from the hill regions) and are from poor and vulnerable sections of society and thus, it is a clear structural discrimination based on ethnicity and class. The Supreme Court and High Courts have issued ordered in response to many petitions filed in those courts ordering the government to provide citizens’ rights to the children of citizens by birth, however, the CDOs are not providing citizenship to them citing lack of laws. The government does not seem keen to enact new citizenship law even after more than two years have elapsed since the new the constitution was promulgated. A big number of Nepali youths whose parents have received citizenship by birth thus suffers from statelessness. The U. S. Department of State estimates in Country Reports on Human Rights Practices for 2017 estimates that 5.4 million individuals (24 percent of the population age 16 and over) lack citizenship documents in Nepal .
2. Discrimination on the access to fair trial to the Madhesi, Tharu and other vulnerable communities: We would like to draw your attention to the government’s negligence to respond the UN Special Rapporteurs’ joint letter on 7 June 2017. The Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; and the Special Rapporteur on minority issues) was concerning several incidents of alleged extrajudicial executions and excessive use of force by Nepalese security officers between 2013 and 2017, including during demonstrations held by ethnic minority groups, which resulted in over 40 persons killed and several others injured, in Nepal’s Terai region . Madhesis and Tharus have protested against the discriminatory provisions of the constitution. However, the government has not responded to the joint communication from the Special Procedures yet.
The High-Level Enquiry Commission formed by the government on 25 August 2015 under the Chairmanship of retired Supreme Court Justice Girish Chandra Lal to probe the cases of killings, violence and vandalism occurred during the protest in Terai/Madhes, Tharuhat completed its job and submitted its report to the government on 15 December 2017. The government is yet to make the report public so far . The government has not delivered justice for the victims nor has it taken any action against the perpetrators.
3. Maltreatment in Affirmative Action: Despite constitutional guarantee of non-discrimination on the basis of caste, class, gender, religion, etc., structural discrimination against minority communities continues unabated. The new constitution has diluted the provisions of affirmative action for the vulnerable and marginalized community. However, the inclusion of reservation for “indigent Khas Arya”, a ruling community, whose members are over-represented in all state organs including the Parliament, judiciary, executive and government bodies, has diluted the provisions of positive discrimination that are supposed to benefit the vulnerable and marginalized communities.
European Union Election Observation Mission to Nepal said in its March 20, 2018 report that the impact of the quota system on the ethnic composition of the House of Representatives and provincial assemblies should be reviewed. It also called for the removal of the Khas Arya from the groups included. The EU mission also urged the stakeholders to ensure that measures of affirmative action apply only to groups, which are the subject of negative discrimination.
Madhesi Dalits are the most vulnerable group in Nepal. Muslims, Dalits and other Madhesi castes groups are far behind in all the state structures as far as equal representation is concerned. These groups are not in a position to influences policies in different bodies mainly due to their extremely low representation in the state bodies. This situation is thus entrenching structural discrimination further.
4. Caste-based Discrimination Continues: In the name of different cultural practices, Dalits are not allowed to enter temples and some religious centres. Many indigenous ethnicities, who prefer to eat beef during their cultural festivals, are arrested and detained in the charge of killing ox or cow during their cultural festivals. Ill-treatment of Dalit and Madhesi detainees in police custody continues unabated. For years, NGOs have documented that detainees from these communities are proportionally more likely to be subjected to torture or ill-treatment than those of the privileged communities.
5. Fair Trials have not been ensured for the Tharu protestors who have been detained on “fake” charges. The government has not punished the perpetrators in Kailali district who torched Tharus’ houses and shops in the immediate aftermath of the killings of police in Tikapur in August 2015. Independent investigation and prosecution has not been made in the incident . A high level inquiry Commission which was formed under the chairmanship of former Supreme Court Justice Girish Chandra Lal was not mandated to investigate the cases and even their probe report has still not been made public.
6. Threat to activists of marginalized community: The government and non-governmental entities are targeting human rights activists from Madhesi community and other vulnerable groups. Government and non-governmental bodies and political cadres have issued threats against Madhesi human rights activists and filed false defamation or other criminal cases against them, including under the laws on cyber-crimes. Certain elements run smear campaign using online and other media outlets against human rights activists including members of the National Human Rights Commission. The campaign to malign the image of the NHRC members somewhat compels the Commission to compromise its independence.
7. With these details, we would like to reiterate that discriminatory practices against marginalised communities in Nepal continues, which is against the obligation of the State under CERD. More specifically, such discriminatory practices are a clear violation of Art 1, 2, 3, 4, 5 and 6 of the Convention. Thus, we would humbly request you to inquire into those situations and make proper recommendation to the Nepal government for legal, administrative and institutional measures to end such discriminatory practices.
1 Country Reports on Human Rights Practices for 2017: The US Department of State
2 NEPAL: An Open Letter from the Asian Human Rights Commission to the Minister for Foreign Affairs, and to the relevant authorities http://www.ahrchk.org/ruleoflawasia.net/news.php?id=AHRC-OLT-004-2017
3 Nepal: Protest and Repression, Special Report on State Responsibility for 37 Killings During Protests in Terai
4 Make Public the Inquiry Commission’s Report on the Terai Killings: THRD Alliance
5 EU Election Observation Mission to Nepal 2017 Report on House of Representatives & Provincial Assembly Elections https://eeas.europa.eu/sites/eeas/files/final_report_eu_eom_nepal_2017._23_march2018.pdf
6 Ensure Fair Trial for the Accused of the Tikapur Violence
7 Maligning campaign against Ms. Mohna Ansari, Member, NHRC and our request for prompt action
The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.
The Terai Human Rights Defenders Alliance (THRDA) is a non-governmental organization registered under Nepali law and is working to protect and promote human rights through research, legal intervention and advocacy. It works in close coordination with Nepal’s National Human Rights Commission, and reports to international human rights organizations, including the UN Office of the High Commissioner for Human Rights.