Analysis

Nepal’s Constitution incorporates fair provisions for women  

Jivesh Jha

 

Jivesh

Imagine how distinct the world would be for women if we succeed in preventing child marriage, female genital mutilation, domestic violence, usage of abusive words, rape, marital rapes among other forms of violence against women, or hostility of police or legal professionals towards those who testify on cases of violence against women.

In this light, the International Day for the Elimination of Violence against Women is an opportunity for people, media and government to raise public awareness on violence and injustice against women. It has been observed on November 25 every year since 2000.

Widely ratified international treaty called the Convention on Elimination of all forms of discrimination against women (CEDAW) was adopted by the United Nations’ General Assembly in 1979 and ratified by Nepal in 1991. This treaty is regarded as a powerful international convention to ensure gender equality and mitigate violence against women. It has been described as International Bill of Rights for Women.

“The equality that this international obligation seeks to secure for women is not only equal rights but also the right to be equal. CEDAW is a supplementary instrument of law with an aim to uproot all forms of violence against women,” believes Dr Anupam Jha, a faculty member at International Law in Delhi University, India.

“The CEDAW is a comprehensive treaty covering civil, political, social, cultural, and economic rights extending from public to private life, while affirming the reproductive rights of women. It overwhelmingly prescribes a framework for adopting national as well as international actions to uproot all discriminations against women.”

Even as the Convention aims to foster the rights of women globally, United States of America (US), the self-proclaimed Messiah of human rights, is yet to ratify it.

“If the US ratifies this Convention, it would create an obligation on it to submit reports depicting the status of women in the country. Ultimately, it will give an opportunity to international players to comment or criticise American policies,” maintains Professor Dr Jha.

Apart from this Convention, there are scores of UN conventions that accelerates the cause of women globally. They include: Universal Declaration of Human Rights (UDHR) – 1948, International Covenant on Civil and Political Rights (ICCPR) – 1966 and its two Optional Protocols, Convention on the Political Rights of Women-1953, Convention on the Nationality of Married Women-1957, Declaration on the Elimination Discrimination Against Women-1967, Declaration on the elimination of violence against women-1993, Optional Protocol of CEDAW-1999, Commission on the status of Women and United Nation’s four world conferences on women. These [world conferences] took place in Mexico City in1975, Copenhagen in 1980, Nairobi in 1985 and Beijing in 1995.

“The 1995 Fourth World Conference on Women in Beijing marked a significant turning point for the global agenda for gender equality. The Beijing Declaration and the Platform for Action, adopted unanimously by 189 countries, is an agenda for women’s empowerment and considered the key global policy document on gender equality,” reads a report of UN Women. It sets strategic objectives and actions for the advancement of women and the achievement of gender equality in 12 critical areas of concern that includes poverty, economy, education, health, violence against women, women and armed conflict, women in power and decision-making, institutional mechanism for the advancement of women, human rights of women, women and the media, women and the environment, and the girl-child.

Despite legal developments made at international stages, violence against women is a bitter truth in the world. It’s an uncontested fact that “violence against women knows no boundary of geography or culture. It is a global crisis. Nevertheless, violence is a form of domination exercised by the male counterpart on woman. We consider ourselves as members of civilised state, yet we have not learnt to recognise and respect a section of society that constitutes half of the world population,” maintains the much-admired commentator of Constitutional Law (in India) Dr Mamta Rao, who is well known for her popular work Law Relating to Women and Children.

“Everyone should bear in mind that if we all work together we would sooner or later achieve a planet of 50-50, a more equal world,” insists Dr Rao, who is also a faculty member at Constitutional Law in RD University, Jabalpur, India.

“Although international instruments are there, countries are only required to accept instruments as long as they are in consonance with their culture or society. Pakistan, for instance, reserves the right to make laws in accordance with what the state considers to be Islam. So ratification of international instruments would not always translate into domestic laws. This is true for any country,” agues Dr Amber Darr, Barrister (Lincoln’s Inn) and Advocate of the Supreme Court of Pakistan.

She then goes on to claim that India and Pakistan, the largest south Asian states, still view women as property, or as repository of honour of men. “They are not seen as individuals in their own right. Whilst there are exceptional women who break out of this mould, the majority carry the burden of society on their shoulders. Plus South Asian states are generally not very strong on human rights. They consider human rights a luxury rather than a necessity and are still deeply divided on issues of caste and class,” adds Dr Darr.

Still, marginalised women, including poor women and girls, are the most vulnerable ones.

Like international instruments, the Constitution of Nepal incorporates host of measures in a bid to affirm our commitment for establishing a discrimination-free society.

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In this context, Article 18 (1) enshrines a general principle of equality before law and outlaws any form of discrimination. The succeeding clauses (of Article 18) specifically forbid discrimination on the ground of sex. Also, the charter allows the state to positively discriminate in favour of women by enacting special laws to improve their social conditions and ensure social, economic and political justice.

Likewise, the fundamental law puts an obligation on the state to ensure no room for gender-based discrimination regarding remuneration at workplace, or gender-based discrimination regarding right to parental property.

Even though the new constitution was heavily criticised for not allowing a woman to confer citizenship onto her issues, the charter does include positive elements for the mainstreaming of women. The cornerstones are set by two arrangements in particular.

First, the constitution from the very initial stage ensures the rights of women as a fundamental right under Article 38. In an endeavor to create an egalitarian society, Article 38 (ringing with a marginal note of Right of women) guarantees plethora of fundamental rights to women. It includes: equal right to women in lineage, right relating to safe motherhood & reproductive health, right to participate in all state structures on the basis of principle of proportional inclusion, right to special opportunity in spheres of education, health, employment, and social security on the basis of positive discrimination and right to (both spouses) in property and family affairs. Moreover, the charter also provisions that the victims shall have right to seek compensation from the outliers.

Second, Nepal reserves for women 33 percent of positions in legislative spectrum under Article 84(8). In yet another breakthrough, the charter also envisages that “while conducting election of President and Vice-President under this Constitution, the election shall be held so as to represent different gender or communities” [Article 70]. In its effect, Mrs Bidya Devi Bhandari is the incumbent President of Nepal, while Mr. Nanda Kishor Pun holds the office of the Vice President.

Interestingly, similar arrangement is made for the selection or election of Speaker and Deputy Speaker of House of Representative; Chairperson and Vice-Chairperson of the National Assembly; Mayor and Deputy Mayor of municipality and among other (elected) executive offices.

Expressing her satisfaction with the Constitutional arrangement, Dr Mamta Rao further says, “The Nepali charter has paved ways for women to hold vital government offices. These Constitutional obligations definitely unfold a new beginning before the world. The document has potential to bring empowerment in real sense.”

Expressing her satisfaction with the Constitutional arrangement, Dr Mamta Rao further says, “The Nepali charter has paved ways for women to hold vital government offices. These Constitutional obligations definitely unfold a new beginning before the world. The document has potential to bring empowerment in real sense.”

Regardless of these legal developments, gender equality cannot be ensured unless we develop an attitude of zero tolerance to violence within our homes and outside. “The best measure of appraising equality in any country is whether its women population is treated with dignity and respect. An atmosphere of gender equality cannot be created in our society unless we succeed in ensuring a dignified life and equal respect to women in each and every platform–be it social, political or economical,” opines Dr Laxman Singh Rawat, a faculty member at International Law in Uttaranchal University, Dehradun, India.

However, we often fall short in ensuring an atmosphere of equality. As a matter of national shame, Nepal ranks 144 on the Gender Inequality Index, as per the last year’s report of UNDP’s Human Development Reports.

In contrast, there cannot be gender equality without men playing a substantial role in the process. “We have enacted a fair corpus of laws to curb violence perpetuated against women. Yet, men who had come in touch with violence on the capacity of brothers, husband, son or relatives are the potential warriors for the battle against gender-based hostility and discrimination,” argues Pramod Tiwari, a faculty at Constitutional Law in Uttaranchal University, Dehradun, India.

However, he is quick to add, “If the cry of wolf is made too often as a prank, assistance might not be available when the actual wolf appears. Justice should be served to women without any hassle but what about justice to those who are implicated on false charges? The laws should be used as a shield, but not as a sword.”

This scribe submits that it’s the need of the day to follow Mahatma Gandhi who says: “Democracy is something that would give the weak the same chance as the strong.”

There is a dire need to make an amendment in the patriarchal to honour women’s rights, respect and dignity.

The writer is currently pursuing LLM in Constitutional and Administrative Laws at Uttaranchal University, Dehradun, India.

jhajivesh@gmail.com

Published on November 24, 2017  

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