The Constituent Assembly (CA) of Nepal, created by the Comprehensive Peace Agreement (CPA) and elected in April 2008, took the fundamental decision to abolish the Hindu monarchy and declare Nepal a secular republic.
The CA is currently in the process of drafting a new constitution, having been tasked by the CPA with creating “a political system that fully complies with universally accepted fundamental human rights”. In addition, the 1991 Treaty Act requires that domestic legislation in Nepal should be in compliance with all ratified treaties. Nepal is a state party to the International Covenant on Civil and Political Rights (ICCPR), of which article 18 provides for “the right to freedom of thought, conscience and religion”.
The deadline for the new constitution has been extended twice, and currently stands at 31 August 2011. The Government of Nepal is also reviewing the current civil and penal code, and a new proposal was submitted to the CA in May 2011.
The right to freedom of religion or belief has particular importance in Nepal at this time: this is a pivotal moment in its history, undergoing a transition from a Hindu monarchy to a secular democracy, which entails a significant change in the role of religion in politics and society. The CA therefore needs to consider how to reflect this within the framework of rights in the new constitution.
One of two clauses on religious freedom held in common among the constitutions of 1959, 1962, 1990 and 2007, and the present two constitutional proposals is a provision that “no person shall be entitled to convert another person from one religion to another” (or a variant of this). This leaves no space for interpreting a religious conversion as a positive choice, or taking a rights-based approach, such as that with which the CA is tasked in Nepal.
This briefing argues that it is not appropriate to carry the anti-conversion clause into the new constitution. This is for three main reasons. Firstly, the new social and political circumstances of Nepal demand that the treatment of religion in the constitution should be different (section 3.4). Secondly, this type of measure has a record in south Asia for heightening prejudice and violence against religious minorities (section 4.3). Thirdly, it is in violation of the international human rights framework (sections 5-6).
There is a serious risk that already-drafted clauses which are inconsistent with the international human rights framework may pass through the CA without proper scrutiny. Among them would be the right to religious freedom which, as currently framed in the two proposals, would be seriously curtailed. The specific problems with the new constitutional proposals on religious freedom are detailed in sections 6.2 of this briefing, and CSW makes specific recommendations on how the proposals can be made fully consistent with “universally accepted fundamental human rights”, as the CPA demands, in section 2.
In addition, the proposal on offences relating to religion for the new penal code contains a number of problematic sections, detailed in section 7.2 of this briefing. CSW recommends that section 160, on conversion, should be omitted, and sections 157-159, which stem from the colonial penal code of 1860, should be rethought in the present circumstances of Nepal.
The issues of pluralism and conversion are emotive ones, and the deep sensitivities around them should be addressed, but the question remains whether provisions in the new constitution and penal code are the best means for doing so, as they would curtail rights and strengthen negative attitudes towards religious minorities. Instead, a statutory body for inter-faith dialogue would constitute an innovative and potentially fruitful way forward.
Download the full report: CSW: Protecting religious freedom for a new Nepal