20 January 2010 I. INTRODUCTION

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1 Nepal s Failure t Cmply with the Recmmendatins Issued by UN Special Prcedures and Treaty Bdies Cncerning the Onging Exclusin f Indigenus Peples Representatives frm the Making f Nepal s New Cnstitutin: A Request fr Fllw Up by the UN Special Rapprteur n the Situatin f Human Rights and Fundamental Freedms f Indigenus Peples I. INTRODUCTION 20 January This request is respectfully submitted t the United Natins Special Rapprteur n the Situatin f Human Rights and Fundamental Freedms f Indigenus Peples ( SRIP ) by the Indigenus Peples Mega Frnt, 1 the Lawyers' Assciatin fr Human Rights f Nepalese Indigenus Peples (LAHURNIP), 2 and the Frest Peples Prgramme ( the submitting rganisatins ). 3 It cncerns the nging exclusin f indigenus peples freely chsen representatives frm the prcess f making Nepal s new cnstitutin and the absence f an assciated mechanism t secure effective participatin by indigenus peple and btain their free, prir and infrmed cnsent in relatin t this prcess. 4 The submitting rganisatins request that the SRIP cntinues t engage with Nepal in rder t ensure that indigenus peples rights are fully respected in the cnstitutin refrm prcess and s as t avid irreparable harm t indigenus peples (specific requests are set ut in paragraph 29 belw). 2. In additin t prviding updated infrmatin n the cnstitutin refrm prcess, this reprt als cncerns Nepal s failure t cmply with recmmendatins issued by the SRIP and the UN Cmmittee n the Eliminatin f Racial Discriminatin ( CERD ). These recmmendatins cncern the exclusin f indigenus peples representatives frm the cnstitutin refrm prcess and were designed t remedy this serius human rights prblem. 3. The SRIP recmmended in his 2009 reprt n his cuntry visit t Nepal that in rder t prvide the highest safeguards fr the cllective and individual rights f the Adivasi Janajati, thse rights shuld be explicitly incrprated int the new cnstitutin in accrdance with the internatinal standards t which Nepal has cmmitted and; in additin t existing means f representatin in the Cnstituent Assembly, special 1 The Indigenus Peples Mega Frnt is a platfrm created by ne hundred and five indigenus rganizatins, indigenus plitical parties, indigenus sectins f ther plitical parties, NGOs, wmen rganizatins and indigenus schlars with the bjective f lbbying and advcating fr indigenus peples rights in the cnstitutin making prcess n the basis f human rights instruments, including the recmmendatins made by the Special Rapprteur and CERD. 2 Lawyers Assciatin fr the Human Rights f Nepalese Indigenus Peples: is an indigenus lawyers' rganizatin, established in 1995, which has been wrking t defend, prtect and prmte the human rights and fundamental freedms f indigenus peples in Nepal. Address: Anamnagar-32, Kathmandu Metrplitan City, Kathmandu, Nepal. Tel: , Fax: , lahurnip.nepal@gmail.cm. 3 The Frest Peples Prgramme is an internatinal NGO, funded in 1990, which supprts the rights f indigenus peples. Address: 1c Fsseway Business Centre, Stratfrd Rad, Mretn-in-Marsh GL56 9NQ, UK. Tel: (44) , Fax: (44) , inf@frespeples.rg. 4 Indigenus peples (Adivasi Janajati in the Nepali language) are cnstitutinally and therwise recgnized as distinct peples. Sectin 2 f the Fundatin fr the Develpment f Indigenus Natinalities Act 2002 recgnizes the cllective nature f indigenus peples and defines them as grups with distinct mther tngues, traditins, custms, identities, scial structures, and their wn ral r written histries. Accrding t Nepal s 2001 census, indigenus peples cmprise percent f the ttal ppulatin f almst 29 millin peple. Hwever, indigenus peples rganizatins assert that the true number exceeds 50 percent f the ppulatin. In real numbers, the exclusin f indigenus peples representatives frm Nepal s cnstitutin refrm prcess causes grave harm t the rights f between apprximately millin persns as well as t the cllective rights f 59 fficially recgnised and mre than 25 unrecgnised indigenus peples. 1

2 mechanisms shuld be develped fr cnsultatins with the Adivasi Janajati, thrugh their wn representative institutins, in relatin t prpsals fr new cnstitutinal prvisins that affect them. 5 In this respect, the SRIP bserved that The prcedures in place fr indigenus participatin in the cnstitutin-making prcess are nt fully apprpriate nr are all indigenus peples being allwed t participate thrugh their wn representative institutins. Further, the means prvided fr indigenus participatin in the cnstitutin-making prcess d nt appear t be devised with the bjective f achieving agreement r cnsent n the part f indigenus peples t the cnstitutinal prvisins that directly affect their rights, as required by article 6(2) f the [ILO] Cnventin [N. 169] and, in even strnger terms, article 19 f the United Natins Declaratin The deficit in adequate participatin prcedures identified by the SRIP is further exacerbated by the discriminatry treatment f indigenus peples languages in the Cnstituent Assembly. Specifically, indigenus peples are prhibited frm using their wn languages in the Cnstituent Assembly and must use the Nepali language fr all fficial cmmunicatins. This presents a substantial bstacle fr sme f the indigenus members f the Cnstituent Assembly wh are nt literate r cnversant in Nepali. 5. Cncurring with the SRIP, in March 2009, the CERD adpted a cmmunicatin under its early warning prcedure, with a view t aviding irreparable harm t indigenus peples. 7 It bserves that Nepal s new cnstitutin is currently being drafted by a Cnstituent Assembly in which indigenus persns may nly frmally participate if they were chsen by plitical parties and act in strict cnfrmity with the manifests f thse parties. 8 The CERD recmmends that mechanisms be established t ensure indigenus peples free, prir and infrmed cnsent in relatin t the cnstitutinal preparatin prcess, and that an indigenus peples thematic cmmittee be set up t guarantee the representatin and participatin f indigenus peples in plitical life In August 2009 CERD revisited the situatin in Nepal again under its early warning and urgent actin prcedures. It bserved that Nepal had stated its intentin t address indigenus peples rights in the Cnstituent Assembly s Cmmittee t Prtect the Rights f Minrity and Marginalised Cmmunities ( Minrity Rights Cmmittee ). Hwever, it cncluded that the available infrmatin indicated that this mechanism may nt be an effective alternative t a specific thematic cmmittee n indigenus peples, as prpsed by the Cmmittee CERD s views are blstered by the fact that the Minrity Rights Cmmittee s mst recent reprt fails t address indigenus peples rights in even the mst rudimentary way (this reprt is discussed further in paragraph 16 belw and is cntained in Annex C heret). 11 The crrespnding recmmendatin reiterates that the establishment f such a thematic cmmittee [n indigenus peples] shuld be urgently cnsidered and that effective indigenus representatin shuld be guaranteed by allwing the participatin f indigenus representatives wh are freely chsen and identified by the peples cncerned accrding t their wn prcedures Reprt n the Situatin f Indigenus Peples in Nepal. UN Dc. A/HRC/12/34/Add.3, 20 July 2009, at para Id. at para Cmmunicatin f the Cmmittee, 13 March 2009, at p. 1. Available at: 8 Id. 9 Id. at p Cmmunicatin f the Cmmittee, 28 September 2009, at p. 1. Available at: 11 Annex C, Cncept Paper and Preliminary Draft Reprt f the Cmmittee t Prtect the Rights f Minrity and Marginalized Cmmunities (2009): Cnclusins and Recmmendatins, n date. 12 Cmmunicatin f the Cmmittee, 28 September 2009, supra, at p. 2. 2

3 8. As explained herein, Nepal has chsen t disregard the SRIP and CERD s recmmendatins and has refused t rectify its discriminatry treatment f indigenus peples in the cnstitutin refrm prcess. Instead, the State is actively ppsing indigenus peples right t participate thrugh their wn representatives in prceedings befre its Supreme Curt and the Chairman f the Cnstituent Assembly has stated that it will nt be pssible t establish a thematic cmmittee n indigenus peples (see para belw). 9. This nging and flagrant denial f indigenus peples right t chse their wn representatives thrugh which t participate in the crucial prcess f drafting the new cnstitutin perpetuates centuries f deep rted and deeply-engrained discriminatin against indigenus peples in Nepal. 13 In this respect, the Office f the High Cmmissiner fr Human Rights explains that indigenus peples have been systematically excluded frm participatin in Nepal s plitical life fr ver 200 years and denied any frmal rle in building and defining the state in which they nw find themselves. 14 The same is presently als the case with regard t indigenus peples participatin in the Cnstituent Assembly and the cnstitutin it will prmulgate. 10. The SRIP reached the same cnclusin as the OHCHR, stating that a lng histry f ppressin and marginalizatin has excluded indigenus peples frm plitical representatin and decisin-making, full citizenship, and ecnmic and educatinal pprtunities; and their distinct cultures and languages have been cntinuusly threatened. 15 He als unambiguusly cncluded that the treatment f indigenus peples in the cnstitutin revisin prcess cntravenes Nepal s internatinal legal bligatins The SRIP als emphasised that the cnstitutin refrm prcess represents a critical mment t respnd t the many challenges that indigenus peples f Nepal face. 17 Hwever, Nepal s nging denial f indigenus peples right t participate in the prcess f drafting the new cnstitutin thrugh their wn freely chsen representatives perpetuates the systematic discriminatin that has heretfre characterised indigenus-state relatins in Nepal. Mrever, withut a thematic cmmittee n indigenus peples, there is little pssibility that indigenus peples rights will be recgnised in the new cnstitutin. There is als a substantial risk that indigenus peples will suffer irreparable harm in this prcess, the same harm that the SRIP and the CERD sught t avid when they adpted their respective recmmendatins. The likelihd f such harm is sufficiently demnstrated in the results t date f the varius cmmittees frmed within the Cnstituent Assembly (see Sectin III belw). 13 Reprt f the United Natins High Cmmissiner fr Human Rights n the human rights situatin and the activities f her Office, including technical cperatin, in Nepal. UN Dc. A/HRC/4/97, 17 January 2007, at para. 62 & Id. at para. 68 (stating that Discriminatin n the basis f caste, ethnic, gender, gegraphic and ther cnsideratins has marginalized and excluded millins f Nepalese peple frm full participatin in plitical prcesses and State institutins as well as equal access t husing, water, land and ther such rights ). 15 UN expert urges Nepal t act n cmmitments t indigenus rights, 2 December 2008 (He urged the Gvernment t ensure that indigenus peples receive fair representatin and resurces ). Available at: 16 Id. The UN press release issued at the cnclusin f his Nvember 2008 in situ visit t Nepal unambiguusly states that Althugh a significant number f Cnstituent Assembly members belng t indigenus grups, the Special Rapprteur argued fr additinal mechanisms in the cnstitutin-making prcess that cnsult directly with indigenus peples, thrugh their wn chsen representatives and in accrdance with their wn methds f decisin-making, as required by the internatinal standards t which Nepal has cmmitted ). 17 Id. 3

4 II. NEPAL IS OPPOSING RESPECT FOR INDIGENOUS PEOPLES RIGHT TO PARTICIPATE THROUGH THEIR OWN REPRESENTATIVES 12. On 12 February 2009, indigenus peples and their rganisatins filed a writ petitin with Nepal s Supreme Curt challenging their exclusin frm the cnstitutin refrm prcess. They allege in their petitin (see Annex A) that the exclusin f indigenus peples cntravenes cnstitutinal nrms and Nepal s internatinal treaty bligatins, bligatins that are incrprated int natinal law pursuant t Nepal s 2007 Interim Cnstitutin and the 1991 Nepal Treaty Act. 18 The writ petitin als frmally invkes the prvisins f Internatinal Labur Organisatin Cnventin N. 169 ( ILO 169 ), the UN Declaratin n the Rights f Indigenus ( UNDRIP ) Peples and the Internatinal Cnventin n the Eliminatin f All Frms f Racial Discriminatin ( ICERD ), particularly Article 5(c) After a preliminary hearing, n 1 March 2009, a single bench f Justice Min Bahadur Rayamajhi rdered all Gvernment Ministers, the Prime Minister s Office and all Cnstituent Assembly cmmittees t submit written answers within 15 days. While mst f these answers were submitted in March 2009, the Curt has twice pstpned a hearing n the merits, mst recently in Octber 2009, and the matter remains pending despite its prima facie urgent character. Similarly, a request fr an interim rder filed at the same time as the writ petitin has simply been ignred and n ruling, preliminary r therwise, n this urgent request has been made almst six mnths later. In the meantime, the Cnstituent Assembly is prceeding apace with drafting the new cnstitutin withut any meaningful participatin by indigenus peples. 14. In respnse t the writ petitin submitted by indigenus peples, the State argued befre the Supreme Curt that the petitiners arguments shuld be dismissed fr failure t state a clurable claim (see Annex B). It further argued that indigenus peples are presently adequately represented in the Cnstituent Assembly irrespective f the manner by which they were selected and the cnditins that apply in rder t maintain plitical party discipline The State s submissin t the Supreme Curt was accmpanied by a number f affidavits, including ne by the Chairpersn f the Cnstituent Assembly (Annex B). Therein the Chairpersn explains that it is nt pssible t establish a separate cmmittee n indigenus peples within the Cnstituent Assembly. He further argues that full respect has been paid t the issue f the participatin f all grups and parties cncerned in the cmmittees frmed under the prject f cnstitutin writing and their related tpics and the activities t be undertaken by the cmmittees. 21 This, hwever, ignres the fact that indigenus peples had n say in chsing wh wuld represent them in the Cnstituent Assembly in the first place and n say in wh wuld represent them in the varius 18 Article 33(m) f the Interim Cnstitutin and Treaty Act In Rabindra Prasad Dhakal v Gvernment f Nepal (Nepal Kann Patrika 2064), the Nepal Supreme Curt held that this als applies in the case f internatinal human rights treaties, such as ICERD. 19 Article 5(c) guarantees the right, withut discriminatin f any kind, t participate in electins and t take part in gvernment and the cnduct f public affairs at any level. The Cmmittee has previusly interpreted this prvisin t require respect fr indigenus peples right t effective participatin thrugh their wn representatives in state bdies and structures, including in cnstitutinal refrm prcesses, and has repeatedly affirmed that decisins directly relating t indigenus peples rights shall be taken nly with their infrmed cnsent. See inter alia United States, 08 May 2008, CERD/C/USA/CO/6, at para. 29; Guyana, 04/04/2006, CERD/C/GUY/CO/14, at para. 14; Australia, CERD/C/AUS/CO/14, 14 April 2005, at para. 11; Argentina, 24/08/2004, CERD/C/65/CO/1, at para. 18; Mexic, 04/04/2005, CERD/C/MEX/CO/15, at para. 12; Guatemala, 15/05/2006, CERD/C/GTM/CO/11, at 16; and General Recmmendatin XXIII n Indigenus Peples See Annex B, Written Reply f the Ministry f Culture and State Restructuring, Minister f Culture and State Restructuring, Gpal Kirati, para. 7-8 and; Written Reply f the Chairpersn f Cnstituent Assembly Subhaschandra Nembang, para See Annex B, Written Reply f the Chairpersn f Cnstituent Assembly Subhaschandra Nembang, para. 4. 4

5 cmmittees. These decisins were made by plitical parties withut any reference t indigenus peples right t participate thrugh their wn freely chsen representatives. 16. The Chairpersn has rejected the establishment f a separate cmmittee n indigenus peples n mre than ne ccasin, including in June 2009 when indigenus peples rganisatins met with him t prtest against the recmmendatins f the Minrity Rights Cmmittee. 22 This cmmittee is the bdy that has a remit, if it s decides, t make recmmendatins n indigenus peples rights. Yet, it has failed t include any recmmendatins in this respect in its preliminary reprt (see Annex C). Indeed, indigenus peples are nt even mentined in this reprt. In additin t rejecting the establishment f a thematic cmmittee n indigenus peples, Nepal has failed t prpse an effective alternative that culd therwise ensure indigenus peples participatin in plitical life in relatin t the cnstitutinal refrm prcess. T be sure, it is actively ppsing such measures. 17. Nepal s arguments befre the Supreme Curt cnclusively demnstrate that it is actively seeking t legitimate its nging denial f indigenus peples right t participate in decisin-making in matters which wuld affect their rights, thrugh representatives chsen by themselves in accrdance with their wn prcedures. 23 Nepal s requirement that indigenus peples may nly participate thrugh plitical party structures nullifies this right in vilatin f Nepal s internatinal legal bligatins, including varius prvisins f the ICERD, ILO 169, a cnventin presently in frce fr Nepal, and the UNDRIP T cnclude this sectin, the State s liability fr the abve listed vilatins is further cmpunded by the indefinite pstpnement f the case befre the Supreme Curt in Octber This is the secnd delay t date in this urgent case, which als explicitly requests urgent interim rders. It shuld be recalled in this cntext that the cnstitutin refrm prcess is scheduled t end in June 2010 and therefre the new cnstitutin may have been adpted by the time the Curt renders a decisin. At a minimum, this unjustifiable delays in judicial prceedings calls int questin the availability f effective remedies by which indigenus peples may assert and seek prtectin fr their rights. III. OTHER THEMATIC COMMITTEES HAVE ADOPTED RECOMMENDATIONS THAT IGNORE OR UNDERMINE INDIGENOUS PEOPLES RIGHTS 19. Six f the ten thematic cmmittees established by the Cnstituent Assembly have publicly released their reprts and recmmendatins. Nt ne f these addresses indigenus peples rights, which are either absent r ptentially undermined and/r negated by ther prvisins. These reprts are frwarded t the Cnstitutin Cmmittee, which will draft the new cnstitutin based n the recmmendatins adpted by each thematic cmmittee. Withut specific recmmendatins n indigenus peples rights, it is highly unlikely that any prvisin will be made fr these rights in the new cnstitutin. T shw their dismay with the prcess t date, n 7 Nvember 2009, indigenus peples' rganizatins led by Nepal Federatin f Indigenus Natinalities publicly burned the 22 Likewise, in 26 Nvember 2009, the Indigenus Peples Mega Frnt submitted a memrandum (Annex) t the Chairpersn f the Assembly, the Prime minister and the varius plitical parties represented in the Cnstituent Assembly requesting that they cmply with the recmmendatins f the SRIP and the CERD. The Prime Minister and Chairpersn f Cnstituent Assembly firmly rejected this request and stated that the existing mechanisms were sufficient. 23 Declaratin n the Rights f Indigenus Peples, UNGA Res. 61/295, 13 September 2007, Article 18. See als Article 19, which prvides that States shall cnsult and cperate in gd faith with the indigenus peples cncerned thrugh their wn representative institutins in rder t btain their free, prir and infrmed cnsent befre adpting and implementing legislative r administrative measures that may affect them. 24 See Internatinal Labur Organisatin Cnventin N. 169, inter alia, Arts. 3, 4, 5 and 6. Article 6(1)(a), fr instance, prvides that states shall cnsult the peples cncerned, thrugh apprpriate prcedures and in particular thrugh their representative institutins, whenever cnsideratin is being given t legislative r administrative measures which may affect them directly. See als UNDRIP Arts. 3, 5, 18 and 19. 5

6 reprts prepared by Fundamental Rights and Directive Principles Cmmittees due t their failure t address indigenus peples rights (see Annex). 20. While sme f the thematic cmmittees d nt address indigenus peples rights at all, sme f the ther thematic cmmittees have adpted prpsals that likely prejudice and undermine thse rights. The Cmmittee t Prtect Natinal Interests, fr instance, recmmends that the preamble t the new Cnstitutin will state that "Nepal is a surce f Eastern civilizatin and the land f Shiva." This statement, if adpted, fails t acknwledge the pre-existence f indigenus peples and their identity, and fails t recgnise that Nepal is a multi-ethnic, multi-religius, and pluri-cultural cuntry, rather than a purely Hindu cuntry. 21. The Cmmittee t Prtect Natinal Interests als recmmends that a prvisin be included in the new cnstitutin that prhibits any persn r rganizatin frm prviding sensitive infrmatin that may jepardize svereignty, natinal integrity, r harmny amng varius castes and ethnicities t internatinal rganizatins withut prir gvernment authrizatin. This prvisin may be used t prevent the filing f cmplaints with human rights bdies, such as the SRIP r CERD, and, in particular, may be used t preclude claims based n indigenus peples rights. In fact, Nepal presently emplys similar language t prevent the frmatin f plitical parties that explicitly refer t indigenus peples in their name r purpses, and this practice has been upheld by the Nepal Supreme Curt. 25 Last but n means least, the Cmmittee refers t the right t selfdeterminatin in cnnectin with reginal and lcal gvernments, but fails t d s in cnnectin with indigenus peples Similarly, the Cmmittee t Cnstruct the Basis f Scial and Cultural Slidarity has adpted recmmendatins that, if implemented, wuld effectively curtail the territrial rights f indigenus peples by guaranteeing access in prprtin t their need, but nt wnership rights. Other recmmendatins hld that indigenus peples' access natural resurces shuld be placed under the Directive Principles in the new cnstitutin, which wuld render these rights unenfrceable in a curt f law. It als recmmends that the fficial language f the judicial system f Nepal will be Khas Nepali. This wuld deny indigenus peples their right t use their wn languages in the judicial system, which in many cases wuld mean that they are unable t understand and participate in the prceedings (this is nt uncmmn in judicial prceedings in Nepal at present). 23. In a deeply disturbing statement, the Cmmittee t Cnstruct the Basis f Scial and Cultural Slidarity has als recmmended that Each cmmunity has right t prtect, prmte and exercise its culture, but bad culture, bad values, and bad traditin that are practiced in the name f culture shall nt be deemed t prevent prmulgating special laws t restrict them. 27 It explains in this respect that, There are prevalent bad culture, 25 See Nepal Interim Cnstitutin 2007, Article 12.3, (prviding that the State may prhibit a plitical party r institutin that may jepardize scial harmny n the basis f race, ethnicity, religin r sect). The Plitical Party Registratin (Electin Prvisin) Regulatin 2007 gives effect t this cnstitutinal nrm. Regulatin 12 states that a plitical party shall nt be registered fr electins where it maintains a: (b) Restrictin in discriminatry way t btain a membership f the respective party n the basis f religin, race, ethnicity, language r sex. These prvisins were invked by the Nepal Electral Electin Cmmissin in relatin t the Mngl Natinal Organizatin and Janajati Party as the basis fr denying their registratin as plitical parties. Bth f these parties sught t advcate fr the rights f indigenus peples. The Electin Cmmissin s decisin was later endrsed by the Nepal Supreme Curt in Khagendra Jung Gurung v Electin Cmmissiner, 2048, Nepal Kann Patrika Vls. 2, 3 and 4, Dec. N. 4270, p The SRIP makes a series f recmmendatins abut indigenus peples right t self-determinatin and its accmmdatin in Nepali law and state structures, all f which have been disregarded t date. See Reprt n the Situatin f Indigenus Peples in Nepal. UN Dc. A/HRC/12/34/Add.3, 20 July 2009, at para , Cncept Paper and Preliminary Draft Reprt f the Cmmittee t Cnstruct the Basis f Scial and Cultural Slidarity (2009): Cnclusins and Recmmendatins, n date. 6

7 values, and practices in the name f culture in the Nepali sciety, which are imprtant t ablish. With the intentin t ablish such types f culture this prvisin is recmmended t allw the state t make laws. 28 This begs the questin, wh will decide which cultures r cultural practices are bad and n what basis? 24. The submitting rganisatins bserve that the arguments underlying the recmmendatins described in the preceding paragraph have been used histrically t suppress indigenus peples in Nepal, particularly where indigenus cultural practices are deemed t deviate frm Hindu rthdxy. One example is the criminalisatin f the butchering and/r eating f cws r buffals, a practice deemed ffensive t the Hindu religin, but ften f cnsiderable imprtance in indigenus cultures and diet. There are indigenus peple in prisn in Nepal tday fr this crime. Indigenus peples have been and still are in sme respects characterised as barbaric and uncivilised by the dminant castes, and have suffered serius and negative cnsequences, n the basis f the alleged inferirity f their cultures. 25. The preceding prvides mre than ample evidence t supprt the prpsitin that the exclusin f indigenus peples freely chsen representatives frm Nepal s Cnstituent Assembly will cause irreparable harm t their rights and future well being. If adpted, the recmmendatins f the thematic cmmittees wuld allw fr a variety f prvisins in the new cnstitutin that wuld substantially undermine indigenus peples rights and integrity. At the same time, these cmmittees have nt adpted any substantive recmmendatins recgnising and entrenching indigenus peples internatinally guaranteed rights. Recmmendatins that wuld allw the State t adpt legal measures aimed at prhibiting bad cultures r cultural practices als wuld allw it t perpetuate and give cnstitutinal legitimacy t legal and ther measures that denigrate and, in sme cases, criminalise indigenus peples basic values, cultural practices and beliefs. These recmmendatins thus stand in sharp cntrast t the letter and spirit f ILO 169 and the ICERD as well as t the preamble t the UNDRIP, which affirms that all dctrines, plicies and practices based n r advcating superirity f peples r individuals n the basis f natinal rigin r racial, religius, ethnic r cultural differences are racist, scientifically false, legally invalid, mrally cndemnable and scially unjust. IV. CONCLUSION AND REQUEST 26. By virtue f Nepal s discriminatry acts and missins, indigenus peples are denied their right t participate thrugh their wn representatives in Nepal s natinbuilding prject, a prject that will bring abut cnsiderable changes t the way the cuntry is gverned. The plitical parties that cntrl the cnstitutin refrm prcess are dminated by the same ethnic grups that have histrically excluded indigenus peples and deprived them f the recgnitin and enjyment f their rights. The result is thus expected t be the perpetuatin f the systematic discriminatin that has characterised the situatin f indigenus peples in Nepal fr ver tw centuries. Such an utcme appears likely als n the basis f the recmmendatins adpted t date by the varius thematic cmmittees within the Cnstituent Assembly. 27. Nepal is aware that its acts and missins cntravene the rights f indigenus peples and their members. Rather than respect indigenus peples rights, it has defended and sught t legitimate its discriminatry treatment f indigenus peples befre its Supreme Curt. It has als rejected the SRIP and CERD s recmmendatins with respect t the rights f indigenus peples t participate in plitical life, recmmendatins that bth 28 Id. 7

8 acknwledge the substantial risk f irreparable harm t indigenus peples and seek t avid that harm. 28. Exclusin f tens f millins f peple frm the crucial prcess f revising Nepal s cnstitutin slely n the basis f their race and ethnicity cnstitutes an urgent situatin; an example f massive racial discriminatin; a nullificatin f indigenus peples rights and the individual rights f their members; and a threat f substantial and irreparable harm. It thus typifies the existence f a grss and persistent pattern f racial discriminatin and represents a situatin that bth invites and cmpels internatinal scrutiny and actin. 29. In the light f the preceding, the submitting rganizatins respectfully request that the SRIP again cnsiders the situatin f indigenus peples in Nepal. In particular, the submitting rganizatins request that the SRIP engages with the Gvernment f Nepal and recmmends, inter alia, that Nepal: a) recgnises and respects indigenus peples' right t effective participatin in the Cnstituent Assembly thrugh representatives freely chsen by themselves in accrdance with their wn prcesses and representative institutins; b) amends the Interim Cnstitutin, the 2007 Cnstituent Assembly Electin Act and its implementing Regulatin t ensure cnsistency with (a) abve; c) further recgnises indigenus peples rights and participatin in the cnstitutin making prcess by frming an indigenus peples thematic cmmittee as a matter f urgency, and by ensuring indigenus representatin theren frm amng their freely chsen representatives identified accrding t their wn prcesses; d) establishes mechanisms t therwise cnsult with and btain indigenus peples free prir and infrmed cnsent in relatin t the cnstitutinal revisin prcess in accrdance with the ICERD, UNDRIP and ILO 169; and e) ensures that the new cnstitutin, nce adpted, uphlds and guarantees the rights f indigenus peples in accrdance with Nepal s internatinal cmmitments. 8

9 Annex A Writ Petitin Filed at the Supreme Curt Subject: Request fr the issuance f Mandamus with Certirari r ther necessary rder On behalf f Lawyers Assciatin fr Human Rights f Nepalese Indigenus Peples (LAHURNIP), Kathmandu District, Kathmandu Metrplis, Kathmandu Secretary, Ward 32, Advcate Shankar Limbu, Age 38, resident f Kathmandu District, Kathmandu Metrplis, Ward 32 1 On behalf f Kirat Radu Nachhiring Sakham (Organizatin f Nachhiring indigenus peple), Kathmandu District, Kathmandu Metrplis, Ward 29, Thamel, Kathmandu, Frmer Chairpersn, Pratap Singh Nachhiring, Age 52, resident f Kathmandu Metrplis, Ward 13, Bafal.1 On behalf f Kirat Rai Yayakkha (Organizatin f Kirat Rai indigenus peples), Kathmandu District, Kathmandu Metrplis, Ward 32, Maitidevi, Kathmandu, Secretary, Advcate Bhim Rai, Age 39, resident f Kathmandu Metrplis, Ward 32,Ghattekul 1 On behalf f Natinal Indigenus Natinalities Wmen s Federatin, Kathmandu District, Kathmandu Metrplis, Ward 29, Samakhusi, Kathmandu, Chairpersn, Chinimaya Majhi, Age 38, resident f Kathmandu District, Kathmandu Metrplis, Ward 4, Chandl 1 On Behalfbf Indigenus Wmen s Legal Awareness Grup, Kathmandu District, Kathmandu Metrplis, Ward 35, Ktehwr, Kathmandu, Secretary, Advcate Indira Kumari Shrish, Age 39, resident f Lalitpur District, Bhainsepati, Ward...1 On behalf f Hylm Prtectin and Prmtin Cuncil, Kathmandu District, Kathmandu Metrplis, Ward 8, Jrpati, Kathmandu, Chairpersn, Tashi Chhiring Lama, Age 23, resident f Kathmandu Metrplis, Ward 8, Arubari 1 On behalf f Sunuwar Service Sciety, Kathmandu District, Kathmandu Metrplis, Ward 10, Baneshwr, Kathmandu, General Secretary Bimala Sunuwar, Age 29, resident f Kathmandu Metrplis, Ward 9.1 On behalf f Kirat Rai Athpahariya Sciety, Kathmandu District, Kapan V.D.C., Ward 3, Kathmandu, Jint Secretary, Manj Rai, Age 28, resident f Kathmandu Metrplis, Ward 7, Chabahil.1 On behalf f Newar Natinal Frum, Kathmandu District, Kathmandu Metrplis, Ward 23, Ombahal, Kathmandu, Member, Mangala Karanjit, Age 55, resident f Kathmandu Metrplis, Ward 21, Jyabahal 1 On behalf f Nepal Bte Sciety, Chitwan District, Gardi V.D.C., Ward 7, Chitwan, Secretary, Gyan Bahadur Bte, Age 31, resident f Nawalparasi District, Argyuli V.D.C., Ward 4 1 On behalf f Himalayan Bhte Sciety, Kathmandu District, Kathmandu Metrplis, Ward 6, Buddha Tinchuli, Kathmandu, Chairpersn, Dawa Sangmu Bhte, Age 31, resident f Kathmandu District, Dhaparsi V.D.C., Ward 3.1 On behalf f Kirat Chamling Rai Language and Culture Prmtin Assciatin, Kathmandu District, Kathmandu Metrplis, Ward 5, Kathmandu, General Secretary, Raju Bikram Chamling, Age 28, resident f Kathmandu District, Kathmandu Metrplis 1 On behalf f Lil Phang, Kathmandu District, Kathmandu Metrplis, Ward 29, Samakhushi, Kathmandu, General Secretary, Jit Bahadur Ghale, Age 36, resident f Kathmandu Metrplis, Ward 29, Samakhushi, Kathmandu..1 On behalf f Nepal Kumar Sciety Refrm Cmmittee, Kathmandu District, Kathmandu Metrplis, Ward 32, Anamnagar, Kathmandu, Secretary, Advcate 1

10 Nagendra Kumar Kumal, Age 31, resident f Kathmandu Metrplis, Ward 32, Anamnagar, Kathmandu On behalf f Nepal Majhi Develpment Assciatin, Sunsari District, Madhuban V.D.C., Ward 7, Sukrabare, Vice-Chairpersn, Dhan Bahadur Majhi, Age 60, resident f Kathmandu Metrplis, Ward 4..1 On behalf f Karani Sciety Service Assciatin, Kathmandu Metrplis, Ward 6, Buddha, Kathmandu, Secretary, Guru Syangyap Lama, Age 31, resident f Kathmandu Metrplis, Ward 6, Buddha, Kathmandu.1 On behalf f Yamphuhang Kirat Rai Unity Sciety, Lalitpur District, Lalitpur Sub- Metrplis, Ward.., Lalitpur, Secretary, Bichari Yamphu Bishal, Age 35, resident f Lalitpur Sub-Metrplis...1 On behalf f Kirat Yakthung Chumlung (Organizatin f Limbu indigenus peple), Lalitpur District, Lalitpur Sub-Metrplis, Ward 14, Dhbighat, Lalitpur, Vice- Chairpersn, Uttam Singh Thangden, Age 46, resident f Lalitpur Sub-Metrplis, Ward 14, Dhbighat, Lalitpur 1 On behalf f Nepal Tamang Assciatin, Kathmandu District, Kathmandu Metrplis, Ward 16, Srhakhutte, Kathmandu, Jint Treasurer, Ravi Tamang, Age 40, resident f Kathmandu District, Phutung V.D.C., Ward 5 1 On behalf f Nepal Thami Sciety, Kathmandu District, Kathmandu Metrplis, Ward 35, Kabiraj Thami, resident f Kathmandu Metrplis, Ward vs. Right Hnurable Prime Minister Mr. Pushpa Kamal Dahal, Office f the Prime Minister and Cuncil f Ministers, Singhdurbar, Kathmandu...1 Gvernment f Nepal, Office f the Cuncil f Ministers, Singhdurbar, Kathmandu 1 Right Hnurable Chairpersn, Mr. Subhaschandra Nemband, Office f the Chairpersn f the Cnstituent Assembly and Legislature-Parliament, Office f the Legislature-Parliament, Singhdurbar, Kathmandu..1 Hnurable Minister Mr. Ramchandra Jha, Ministry f Lcal Develpment, Shrimahal, Lalitpur.1 Hnurable Minister Mr. Dev Prasad Gurung, Ministry f Law, Justice and Cnstituent Assembly Affairs, Singhdurbar, Kathmandu...1 Mr. Chairpersn, Cnstituent Assembly, Cnstitutinal Cmmittee, Cmmittee Secretariat, Parliament Building, Singhdurbar, Kathmandu 1 Mr. Chairpersn, Fundamental Rights and Directive Principles Cmmittee, Cmmittee Secretariat, Parliament Building, Singhdurbar, Kathmandu 1 Mr. Chairpersn, Cmmittee t Prtect the Rights f Minrities and Marginalized Cmmunities, Cmmittee Secretariat, Parliament Building, Singhdurbar, Kathmandu.1 Mr. Chairpersn, Cmmittee fr State Restructuring and Divisin f Pwers f the State, Cmmittee Secretariat, Singhdurbar, Kathmandu...1 Mr. Chairpersn, Cmmittee t Determine the Frm f the Legislature, Cmmittee Secretariat, Singhdurbar, Kathmandu..1 2

11 Mr. Chairpersn, Cmmittee t Determine the Frm f the Gvernment System, Cmmittee Secretariat, Singhdurbar, Kathmandu...1 Mr. Chairpersn, Cmmittee Cncerning the Judicial System, Cmmittee Secretariat, Singhdurbar, Kathmandu.1 Mr. Chairpersn, Cmmittee t Determine the Structure f the Cnstitutinal Bdies, Cmmittee Secretariat, Parliament Building, Singhdurbar, Kathmandu.1 Mr. Chairpersn, Natural Resurces, Ecnmic Rights and Revenue Allcatin Cmmittee, Cmmittee Secretariat, Parliament Building, Singhdurbar, Kathmandu.1 Mr. Chairpersn, Cmmittee t Determine the Basis fr Cultural and Scial Slidarity, Cmmittee Secretariat, Singhdurbar, Kathmandu...1 Mr. Chairpersn, Natinal Interest Prtectin Cmmittee, Cmmittee Secretariat, Singhdurbar, Kathmandu.1 Mr. Chairpersn, Citizens Relatins Cmmittee, Cmmittee Secretariat, Parliament Building, Singhdurbar, Kathmandu.1 Mr. Chairpersn, Opinin Cllectin and Crdinatin Cmmittee, Cmmittee Secretariat, Singhdurbar, Kathmandu..1 Mr. Chairpersn, Capability Enhancement and Resurce Management Cmmittee, Cmmittee Secretariat, Singhdurbar, Kathmandu...1 We writ petitiners as the representative rganizatins and institutins active fr the rights, human rights, fundamental freedms and develpment f Nepalese indigenus peples have been denied f ur cnstitutinal and legal rights t freely participate thrugh ur wn representatives directly chsen frm ur representative rganizatins and institutins in the recently elected Cnstituent Assembly and in the nging cnstitutin writing prcess, rights that have been guaranteed as the fundamental rights f indigenus peples by the Interim Cnstitutin f Nepal 2007 as well as by the internatinal instruments t which Nepal is a state party t. Als, the issue presented belw is an issue f public cncern fr us al. By denying us f ur rights an injustice has been cmmitted against us. Therefre, we, prviding belw the details f the injustice suffered and including the receipt f the Rs. 500 necessary fr filing the writ, petitin the hnurable Supreme Curt fr justice. 1. Indigenus natinalities have been given due recgnitin as indigenus natinalities by the Interim Cnstitutin f Nepal 2007 and the Natinal Fundatin fr Develpment f Indigenus Natinalities Act Article 2(a) f the Natinal Fundatin fr Develpment f Indigenus Natinalities Act 2001, alng with defining indigenus natinalities as grups with their wn language and traditinal custms, distinct cultural identity and scial structure and written r unwritten histry, has listed 59 grups f the cuntry as indigenus natinalities. In additin, there are als ther indigenus grups in the cuntry that have defined themselves as indigenus peples n the basis f self-identificatin, and als because they fall within the definitin f the Act as well as the criteria put frth by Article 1 f the Internatinal Labur Organisatin Cnventin N. 169 (hereafter, ILO Cnventin N. 169). The indigenus grups which have yet t be included in the list f the Natinal Fundatin fr Develpment f Indigenus Natinalities Act 2001 have their wn kind f traditinal and representative rganizatins and institutins. Thrugh these rganizatins and institutins the respective indigenus grups exercise their plitical rights accrding t their custms and traditins. As regards the issues related t indigenus peples and issues that negatively impact upn them, varius internatinal human rights instruments t which Nepal is a signatry have guaranteed as a special right the fundamental rights f indigenus peples t participate and represent themselves thrugh their 3

12 representative rganizatins and institutins in the decisin making bdies and mechanisms f the state at varius levels. 2. Apprps the issues mentined abve (N. 1), the Preamble f the Interim Cnstitutin f Nepal 2007 mentins that in rder t slve the existing prblems related t class, ethnicity, religin and gender, a frward-lking restructuring f the state has t be carried ut. It als mentins that the fundamental right f the Nepalese peple t make their wn cnstitutin by themselves and t participate in free and impartial electins t the Cnstituent Assembly held in an envirnment withut fear r cercin has t be guaranteed. Article 2 f the Interim Cnstitutin f Nepal specifically prvides fr the right f every Nepalese citizen t take the final decisin regarding any issues cncerning them by stating that the svereignty and state authrity f Nepal resides with the Nepalese peple. Article 12(3)(a) under fundamental rights f the Interim Cnstitutin guarantees every citizen the right t freedm f pinin and expressin while Article 21, als under fundmental rights, guarantees the right f ecnmically, scially and educatinally backward wmen, dalit, indigenus natinalities, Madhesi, ppressed classes, pr farmers and laburers t participate in the state structure n the basis f the principle f prprtinality and inclusiveness. All the abve-mentined cnstitutinal prvisins and fundamental rights have been infringed upn by Articles 5 and 6 f the Electin t the Cnstituent Assembly Members Act 2064 B.S. (2007/2008) and Electin t the Cnstituent Assembly Regulatin 2064 B.S. (2007/2008), which prvide fr the participatin in the cnstitutin writing prcess n an individual basis r thrugh plitical parties nly. This has led t the prhibitin and exclusin f and discriminatin against the participatin f indigenus natinalities in accrdance with their fundamental and plitical rights thrugh their chsen representatives frm their traditinal and representative ethnic rganizatins and institutins. It has als given preference t plitical parties and carried ut the enfrced assimilatin f indigenus peples int thse plitical parties. By giving cntinuity t all this als in the cnstitutin writing prcess, it is clear that indigenus natinalities have been deprived frm using their abve-mentined fundamental rights. 3. Article 13(1) under fundamental rights f the Interim Cnstitutin f Nepal 2007 states that all citizens are equal befre the law and that n citizen shall be denied the equal prtectin f the law. Likewise, Article 13(3) under fundamental rights mentins that the state shall nt discriminate amng its citizens n the basis f religin, clr, caste, ethnicity, sex, rigin, language r idelgy r any f the abve. The prhibitry clause accmpanying the article has prvided clear guidance t the state t prtect grups like the indigenus natinalities thrugh the enactment f special laws. Althugh the cnstitutin prhibits the discriminatin against indigenus natinalities n the basis f idelgy, this prvisin has been disregarded and the state has discriminated against indigenus natinalities thrugh the enactment f laws related t the Cnstituent Assembly and the cnstitutin writing prcess. These laws have deprived indigenus natinalities the right t practice their wn plitical systems and prcesses thrugh their traditinal and representative institutins, institutins that are part f their existence, identity and beliefs. Nt nly have the indigenus peples been denied f cmmunitarian demcracy t utilize and practice their plitical rights thrugh their wn plitical prcesses and mechanisms, but with regard t the indigenus peples it is als clear that the state, by prtecting an alien plitical system, has denied indigenus peples equal prtectin f the law. 4. The legal rights f indigenus peples t freely and directly, as well as thrugh their wn prcesses, participate in the frmatin f the Cnstituent Assembly and in the cnstitutin writing prcess that have been guaranteed by the 4

13 internatinal instruments that Nepal is a signatry t, like the Internatinal Cvenant n Civil and Plitical Rights (ICCPR), Internatinal Cvenant n Ecnmic, Scial and Cultural Rights (ICESCR), Internatinal Cnventin n the Eliminatin f all frms f Racial Discriminatin (ICERD), ILO Cnventin N. 169, United Natins Declaratin f the Rights f Indigenus Peples 2007 (UNDRIP 2007) (hereafter referred t as Declaratin) and thers, have been infringed upn. Apprps these abve-mentined internatinal instruments, Article 9 f the Nepal Treaty Act 2047 B.S. (1990/1991) has mentined that with regard t an internatinal instrument that Nepal is a state party t, fllwing the ratificatin, apprval r agreement f the parliament, the prvisins f the internatinal instrument shall take precedence ver existing natinal laws. And t the extent that natinal laws are in cnflict with the internatinal instruments, they shall be null and vid. In such a situatin the prvisins f the internatinal instruments shall have the frce f natinal laws and will applied as such. Nepal cannt be exempt frm the respnsibility f adhering t the standards and principles that have been develped in accrdance with the decisins f internatinal curts and human rights related reginal curts. The Nepalese curt can take as an example the established principle regarding the respnsibilities f the state vis-à-vis the citizens made t disappear as an accepted principle f justice. And althugh Article 36 f the cnstitutin has stated that n questins can be raised in the curts regarding the implementatin r nn-implementatin f the prvisins under part 4 f the cnstitutin, there cannt be any dispute that the prvisins are the cmmitments f the state. Als, Article 33(m) f the Interim Cnstitutin f Nepal 2007 has made it the respnsibility f the state t effectively implement the prvisins f the internatinal instruments that Nepal is a state party t. Cntrary t this, the prvisins and precedents f the abve-mentined internatinal instruments as well as the respnsibilities designated by the cnstitutin have been infringed upn and disregarded. 5. With regard t the issue mentined abve (N. 4) f the infringement upn the rights f indigenus peples as guaranteed by the internatinal instruments t participate in the Cnstituent Assembly thrugh their wn representative rganizatins and institutins and by adpting their wn riginal practices, the United Natins Special Rapprteur n the human rights and fundamental freedms f indigenus peples Prf. James Anaya has thrugh a press statement recmmended that the state make alternative arrangements t ensure the rights prvided t indigenus peples by internatinal instruments t participate thrugh their wn prcesses and representative rganizatins in the Cnstituent Assembly and t acquire their freely given cnsent. Since internatinal instruments have nt been fllwed and indigenus peples have been denied participatin in the Cnstituent Assembly and the cnstitutin writing prcess, there des nt seem t be any alternative t the state making necessary arrangements t address these issues. 6. The internatinal instruments mentined abve (N. 5) have guaranteed the human rights and fundamental freedms f indigenus peples. These guaranteed rights are cllective as well as individual in nature. In this cntext, Article 6(1) f the ILO Cnventin N. 169 has given recgnitin t the traditinal, scial, ecnmic and cultural institutins f indigenus peples. Likewise, Article 5 f the United Natins Declaratin f the Rights f Indigenus Peples 2007 states that indigenus peples have the right t maintain and strengthen their distinct plitical, legal, ecnmic, scial and cultural institutins, while retaining their right t participate fully, if they s chse, in the plitical, ecnmic, scial and cultural life f the state. Article 18 f the Declaratin states that indigenus peples have the right t participate in decisin making in matters which wuld affect their rights, thrugh 5

14 representatives chsen by themselves in accrdance with their wn prcedures, as well as t maintain and develp their wn indigenus decisin making institutins. This has guaranteed the cllective plitical rights f indigenus peples t participate thrugh their wn institutins in decisins affecting them. Article 6(1)(b) f the ILO Cnventin N. 169 has mentined that the state shuld establish means by which indigenus peples can freely participate, t at least the same extent as ther sectrs f the ppulatin, at all levels f decisin making in elective institutins and in administrative and ther bdies respnsible fr plicies and prgrams which cncern them. Articles 6(1)(a) f the Cnventin states that the state cnsult the indigenus peples cncerned thrugh apprpriate prcedure and in particular thrugh their representative institutins, Cntrary t all these prvisins withut any direct participatin and cnsultatin with indigenus peples in the cnstitutin writing prcess, a prcess that has direct impact upn them and which is clsely related t their future develpments Articles 5 and 6 f the Cnstituent Assembly Electins Act 2064 B.S. (2007/2008) have made prvisins fr the participatin in the Cnstituent Assembly f nly individuals and plitical parties. This has seriusly infringed upn the rights guaranteed t indigenus peples by Articles 6(1)(b) and 6(1)(a) f ILO Cnventin N.169 t directly participate thrugh their representatives chsen frm their representative institutins. Als, cntravening Article 3(1)(2) f the Cnventin which states that indigenus peples shall enjy the full measure f human rights and fundamental freedms withut hindrance r discriminatin and that n frm f frce r cercin shall be used in vilatin f the human rights and fundamental freedms f indigenus peples, The Electin Cmmissin Act 2063 B.S. (2006/2007) and Electin t the Cnstituent Assembly Act 2064 B.S. (2007/2008) and Electin t the Cnstituent Assembly Regulatin B.S (2007/2008) have been implemented and indigenus peples excluded frm the frmatin f the Cnstituent Assembly. 7. Article 2(1) f the ILO Cnventin N mentins that gvernments shall have the respnsibility f develping, with the participatin f the indigenus peples, crdinated and systematic actin t prtect their rights and t guarantee respect fr their integrity. Article 2(2)(a) f the Cnventin further states that such actin shall include measures fr ensuring that members f the indigenus peples benefit n an equal fting frm the rights and pprtunities which natinal laws and regulatins grant t ther members f the ppulatin. These prvisins have been ttally disregarded and infringed upn by the Cnstituent Assembly and the cnstitutin writing prcess. 8. Articles 2(l) and 7(3) f the Electin t the Cnstituent Assembly Act 2064 B.S. (2007/2008) mentin that while preparing the clsed list f their candidates fr electins t the Cnstituent Assembly, plitical parties shuld take int cnsideratin the issue f prprtinal representatin f indigenus natinalities. Articles 65(4), 66 and 69 f the Cnstituent Assembly Regulatin 2065 B.S. (2008/2009) mentin that while frming the cmmittees in the Cnstituent Assembly, plitical parties shuld n the basis f the party representatin in the Cnstituent Assembly take int cnsideratin the prprtinal representatin f grups like the indigenus natinalities. The prvisin f prprtinal representatin mentined in these laws and regulatins is f direct cncern t indigenus peples and impacts upn them directly. In this cntext, as per the prvisins f Article 6(1) f ILO Cnventin N. 169 and Article 5(c) f Internatinal Cnventin n the Eliminatin f all frms f Racial Discriminatin, these laws and regulatins have t be implemented nly after prir cnsultatin with indigenus peples. The cmmittee t mnitr the Internatinal Cnventin n the Eliminatin f all frms f Racial Discriminatin, explaining the issues related t the Cnventin 6