SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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Lanka and Thailand have ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. Bangladesh, Nepal, India, Thailand and Sri Lanka have ratified both the Optional Protocols to the Convention on the Rights of the Child (i.e. on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography). None of the research countries have ratified or signed the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The domestic application of these international conventions differs across the research countries. In Nepal, Part 22 of the Interim Constitution, mandates legislative approval/ ratification of international treaties. Almost identical to its corresponding provision (Article 126) of the 1990 Constitution, Article 156 (1) requires the ratification of international treaties and agreements as prescribed by law (in this case the Nepal Treaty Act, 1990) and in accordance with the Article’s further provisions. Clause (2) provides that the prescribed law must provide that unless a treaty or agreement pertaining to “(a) peace & friendship; (b) security and strategic alliance; (c) the boundaries of Nepal; and (d) natural resources and the distribution of their uses” is ratified or otherwise accepted by 2/3 majority in Parliament (unless such treaty relating to (a) and (d) above “is of ordinary nature which does not affect the nation extensively, seriously, or in the long-term” in which case it can be approved by simple majority of Parliament) it shall not be binding on the state. 7 The Nepal Treaty Act, 1990 contains this requirement and thereafter prescribes a monist approach. It states that once Nepal has ratified an international treaty through its Parliament, if there is a conflict between the treaty and current domestic law then the latter shall be invalid. 8 As noted in the following chapters, this monist approach has been used significantly by Nepal’s Supreme Court in its rulings. By contrast, in India, Bangladesh, Sri Lanka, Thailand and Indonesia international conventions are not automatically applicable on being ratified. In some cases these countries have enacted specific legislation related to the international human rights conventions they have signed 9 or courts in these countries have relied on these conventions to recognize or expand the understanding of human rights in their judgments. Some of the research countries also have some form of human rights legislation that either establish human rights institutions. 10 7 Article 156, Interim Constitution of Nepal, 2007 8 Section 9, Nepal Treaty Act, 1990 9 See for instance Protection of Human Rights Act, 1993 (India) and the Law on Human Rights, 1999 (Indonesia) 10 See for instance Article 132, Constitution of Indonesia, Protection of Human Rights Act, 1993 (India), Human Rights Commission Act, 1996 (Sri Lanka), and Regulation of the President of the Republic of Indonesian the National Commission on Violence Against Women, Number 65 of 2005, 10
B. METHODOLOGY In keeping with the main aim of the Project on Sexual Health and Human Rights to focus on authoritative standards, this review relied on primary legal documents – statutes and judgments from the research countries. This review is based on an exhaustive survey of key country legislations; this includes Constitutions, criminal codes, personal laws, social legislation related to women’s empowerment, health laws and special legislations. Government policies are included in the review only where particularly relevant and reliable as an indication of state practice. The review also documents and analyses key judicial decisions from the research countries. Thailand was the only country where the researchers were unable to obtain any reliable translations or even summaries of key decisions. While the decisions of higher courts are mostly relied on as representing the highest law of the land, in some cases lower court judgments have been included, where they are particularly demonstrative of a good or [bad] practice or as indicative of disagreements within the judicial system on the content of human rights related to sexual health. To the extent possible, the authors have attempted to have their country analysis cross-checked with local experts, though this was only achieved for the reviews of Bangladesh and Thailand. It has been important to do some background reading on the different jurisdictions to understand the hierarchy of court structures, the binding nature of decisions and to understand various aspects of judicial review and law reform. For this the researchers relied on academic or research articles, country reports to the various United Nations Treaty bodies and reports of key national and international human rights organisations. In an attempt to illustrate the positive role that law can play in the context of health generally and sexual health specifically, the report focuses mainly on examples of statutory and case law (and in some situations, policies) that have strengthened sexual health on the basis of a human rights framework. However, in order to describe legal environments that are conspicuous examples of rights violations or to illustrate the progression in jurisdictions towards rights-based law, the report also dwells at times on examples of rights. It is important to recognise that the research countries as part of the WHO’s SEARO region are grouped together only because of WHO country groupings and not because they share any common historical, cultural, legal or other characteristics. As an example, the research countries even fall into different political regional groupings with Indonesia and Thailand being members of the Association of South East Nations or ASEAN, while India, Nepal, Bangladesh and Sri Lanka are members of the South Asian Association for Regional Cooperation or SAARC. As a result this Report is cautious in (and often refrains from) identifying trends in the “region”. The researchers were able to obtain official English versions of judgments and statutes from most of the research countries either through official government websites or local contacts and where this was not available, unofficial English translations of judgments and statutes were obtained and cross checked for accuracy to the extent possible. Where the authors have relied on unofficial translations, this has been specifically pointed out in the report. In particular, key sources for the research countries included: 11
Page 1 and 2: THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4: 6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6: ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8: in the regional reviews. This is a
Page 9: provide for information and distrib
Page 13 and 14: elevant and key laws and judgments;
Page 15 and 16: The inability of many sexually stig
Page 17 and 18: Equality irrespective of a person
Page 19 and 20: The centrality of women’s rights
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
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The opinion of the National Commiss
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was married to she would acquire im
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to consider the case of a woman see
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oth parties and deems all marital p
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female who has not attained 12 year
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Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
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immovable property. The above propo
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consummation of marriage. The incap
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Violence, especially sexual violenc
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gender norms which many remand home
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female or a female to a male. It in
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from other forms of inequality as w
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c. Whereas victims of violence in h
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courts. 350 According to the Commis
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The Act provides for the appointmen
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Rani 383 it was held that a shared
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The Act specifies imprisonment of 6
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property jointly or separately held
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upees or the amount of the dowry wh
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however, is that, of the 10,000 dea
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Addararachchi 439 the court conside
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harassment, the Indian Supreme Cour
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doer’s sexual desire by using doe
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In holding that there was no justif
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coerce or induce female inmates to
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material or detain any person for t
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consensual sexual activity with you
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The fined amount is to be given to
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the State and its citizens is one o
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every person “the right against e
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The law also includes the right of
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eing committed. 570 While prosecuti
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Broader provisions related to child
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in order to engage the child in suc
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her.” 631 A person is deemed to h
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that they are denied the fundamenta
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
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With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
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The exchange of information through
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community.” 727 In each case, the
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Nepal’s Interim Constitution limi
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Sections 292, 292A, 293 and 294 of
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“...any interpretation of 'obscen
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“1 (a) Condones or extenuates act
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In Thailand, places of entertainmen
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8. SEX WORK This section examines h
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The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
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as parent or guardian has given his
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with one) on the charge that it was
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for sex workers while emphasizing t
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19. Azimuddin v State of Uttar Prad
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1. Acid Control Act, 2002 2. Acid-O
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13. Intellectual Property Act, 2003
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