NEPAL: National Laws

Summary: General overview of Nepal's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
According to section 9(1) of Nepal's Treaty Act 1990, international treaties, including the Convention on the Rights of the Child, become part of national law upon ratification and prevail in the event of a conflict with national law. The Convention can be and has been directly enforced in court.

Constitution: The Interim Constitution of Nepal, in force since 2007, contains extensive rights provisions that apply regardless of age, but also a number that specifically address the rights of children:

• Art. 8(3): Any child in the territory with unkown parents is considered a citizen until his or her father or mother can be traced.
• Art. 22(1): Children have the right to an identity and a name.
• Art. 22(2): Children have the right to be nurtured, to basic health and to social security.
• Art. 22(3): Children have the right to be free from physical, mental and any other form of exploitation. Acts of exploitation are punishable and child victims should be compensated.
• Art. 22(4): Vulernable, separated, disabled, displaced and street children have the right to receive special assistance from the Government.
• Art. 22(5): Children cannot be employed in factories, mines or other hazardous labour, and cannot be recruited into the police or armed forces.
• Art. 35(9): The Government should provide social security to vulnerable groups including children.

In addition, both the Government of Nepal and the Communist Party of Nepal agreed in a 2006 Comprehensive Peace Accord to provide special protection to children's rights; prohibit all types of violence against children including child labour, sexual exploitation, and harassment; cease recruiting or using children in armed conflict; and arrange for the rehabilitation of any children found to be involved in armed conflict.

Legislation: Nepalese law includes a Children's Act, though it is not a comprehensive source of law relating to the children. Legislation relevant to children can be found in a variety of sources including, but by no means limited to:

• The Children's Act 1992
• The Civil Code (Maluki Ain) 1963
• The Child Labour (Prohibition and Regularisation) Act 2000
• The Kamaiya Prohibition Act 2002
• The Child Labour Act
• The Act Relating to Human Trafficking 1986
• The Education Act 1971
• The Birth, Death and Other Personal Incidences (Vital Registration) Act 1976
• The Youth Recruitment Act 1971
• The Citizenship Act 1964
• The Labour Act 1992
• The Disabled Protection and Welfare Act 1982
• The Prisons Act 1962
• The Immigration Act 1993 (particularly with regards to adoption)
• The Social Welfare Act 1992

Legal Research:
Although it was dissolved in 2012, the Constituent Assembly maintans an official website in English (http://www.can.gov.np/en) and Nepalese (http://www.can.gov.np/np) that offers access to legal materials, including former draft bills and information provided on and on behalf of the Legislative Committee. In addition, the website of the Nepal Legal Commission publishes legislation in English and Nepalese (http://www.lawcommission.gov.np/en/documents/law-archives/old-acts/Law-Archives/old-acts/) as well as information on the passage of bills (http://www.lawcommission.gov.np/en/documents/law-archives/old-acts.html) and current and recent Constitutions (http://www.lawcommission.gov.np/en/documents/law-archives/old-acts/Law-Archives/old-constitutions/). In addition the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/nepal.php) and the World Legal Information Institute (http://www.worldlii.org/catalog/2133.html) have compiled a selection of links to relevant legal and governmental resources.

Case Law
CRC jurisprudence
Please contact CRIN if you are aware of any cases in national courts that reference the Convention on the Rights of the Child.

Case law research
The Supreme Court of Nepal maintains a database of its decisions in Nepalese (http://www.supremecourt.gov.np/lic/sys.php?d=reports&f=case_p).

Compliance with the CRC
In its 2005 Concluding Observations, the Committee on the Rights of the Child welcomed Nepal's amendments to legislation, particularly to the Children's Act, but expressed concern at the slow rate of reform. The Committee was also critical of the disparities between legislation, "in particular, in local, customary and religious laws, which result in uneven and discriminatory protection and promotion of children's rights".

In depth analysis
The Committee on the Rights of the Child in 2005 highlighted a number of areas of Nepalese law that fell short of the principles and provisions of the Convention on the Rights of the Child. Violence and sexual violence were among the most serious areas in which national law was inconsistent with the Convention. Specifically, the Committee expressed its utmost concern at the number of children killed in the armed conflict in the country and reports that children had been abducted and forcibly conscribed by armed groups for "political indoctrination and for use as combatants, informants, cooks or porters and as human shields". The Committee recommended that the State legislate to criminalise all such treatment and amend or repeal the Terrorist and Disruptive Activities (Control and Punishment) Ordinance insofar as it applies to children. The Committee also raised concern that corporal punishment was permissible under the Children's Act and the Muluki Ain (Civil Code) in the home, in schools and in other institutions, and recommended that the State enact an express prohibition on all such treatment in all settings.

With regards to the sexual exploitation of children, the Committee expressed concern that the provisions of the Children's Act did not cover sexual abuse unless it passed the threshold of cruel treatment or torture, and that the rate of prosecution for perpetrators of sexual exploitation against children was very low. The Committee recommended that the State legislate to protect children from sexual abuse and to form a comprehensive policy addressing the sexual exploitation of children. The Committee also recommended that the State ensure that it avoids criminalising child victims of sexual abuse while ensuring the prosecution of perpetrators.

Juvenile justice was another area of domestic law that had not been harmonised with the Convention. Specifically, the Committee highlighted the low age of criminal responsibility (10 years), that children are not separated from adults in detention, that children were brought to trial "without any proper investigation" and that anti-terrorism legislation granted law enforcement officials wide powers to arrest persons, including children, on suspicion of being associated with armed groups. The Committee recommended that the State reform its laws in the area of juvenile justice to address these problems as well as that the State review and amend its procedures so as to ensure that children are guaranteed the right to a fair trial.

Current law reform projects
Please contact CRIN if you are aware of any current legal reform projects.