[Constitution special] Still unequalAlthough the new constitution vows to do away with gender-based discrimination, controversial clauses still relegate women to the position of second-class citizens
As also mentioned in the preamble of the Interim Constitution, 2007, the Constituent Assembly (CA) was to address the issue of gender inequality in the new statute. Political parties had agreed to this when they signed the Comprehensive Peace Agreement in 2006. The new constitution was to end the country's long history of legal oppression and exploitation of women. It was to also follow the principles of non-discrimination and equality—the major principles of the Convention on the Elimination of All Forms of Discrimination against Women. What was, therefore, expected in the process of drafting the new constitution was not only de jure but also de facto gender equality, which would ensure women's access to and control over resources and their participation in all state structures on an equal footing with men.
Unfortunately, despite some provisions protecting some of women's rights, the clauses on citizenship and the use of vague language when it comes to defining 'proportional representation' and 'inclusion', women are still not considered equal to men.
The preamble of the new constitution vows to end gender-based discrimination through proportional and inclusive participation of women. The new constitution also allows for special provisions for socially and culturally disadvantaged women, and recognises women's right to lineage without gender-based discrimination.
The equal right of spouses in family matters and property has also been enshrined as one of the fundamental rights. Provisions ensure proportional representation of women in all state organs and positive discrimination in education, employment and social security to create special opportunities for women. The National Women Commission, with the power to protect women's right, is now a constitutional body. And in other constitutional bodies, at least one of the members will be a woman.
Women's right to reproductive health and equal right to inheritance have been carried over from the Interim to the new constitution. The right to protection against physical, mental or sexual violence in any form is also ensured, with offences punishable and victims entitled to adequate compensation. Going beyond the Interim Constitution, the new statute has made violence against women based on religious, social, cultural, or traditional practices criminal, with offenders liable to pay reparations.
More importantly, political parties are to ensure that at least 33 percent of members in the central parliament, upper house and state parliaments are women. If this minimum cannot be met through direct elections, women have to be selected through the proportional representation system and the nominations for the upper house.
Furthermore, to ensure that women are in decision-making roles, the constitution demands that either the speaker or the deputy speaker of both the federal and state parliaments and the upper house has to be female at any given time. Similarly, in local governments, women have to make at least 33 percent of the members in a district coordination committee and at least 40 percent in a ward committee.
The directive principles on social justice and inclusion also recognise the economic value of women who take care of children and family members. They also require the state to launch special benefit packages, and empowerment programmes focusing on Madhesi, Muslim, exploited and disadvantaged women. The rights of indigent women are also protected based on their cultural identity, knowledge and skill. Although questions cannot be raised about the non-implementation of directives, a new mechanism to monitor the progressive implementation in federal parliament has been proposed.
Dependent and unequal
The problem, however, remains in provisions on citizenship. Although the infamous clause that said that a person can be Nepali only if both the parents are Nepali is now removed, Nepali mothers, especially single, are still discriminated against. A single Nepali mother has to prove that the father is not a foreigner and that the child was born in Nepal before she can confer citizenship to her child.
In case of a Nepali woman married to a foreign man, she can confer only naturalised citizenship to her child, whereas a Nepali father can confer the citizenship by descent. The problem with citizenship by naturalisation is that it is not a matter of right in Nepal; it is up to the discretion of the state. Furthermore, the constitution is silent on whether the foreign man married to a Nepali woman can acquire naturalised citizenship, whereas foreign women married to Nepali men can get citizenship immediately. This new constitution has failed to ensure the existence of women as equal and independent citizens of this country.
Gaps and ambiguities
Although the constitution agrees to proportional representation of women in all state structures, it is silent when it comes to specific institutions. For example, the articles on the formation of federal or state cabinets only say that inclusion shall be ensured, without mentioning anything about women. And there is no provision whatsoever to ensure participation of women in the judiciary.
Only four out of 15 members in a village council and five out of 15 members in the municipal executive committee are required to be women. There is no provision requiring that either the chairpersons or vice chairpersons in the village or municipal executive committees are women. This shall subsequently affect the representation of women in district assemblies.
One of the major reasons behind these gaps is the use of ambiguous language. The widely used words, 'proportional' and 'inclusive', are left undefined. The basis for proportional representation is not determined. Also, many rights are to be ensured only after the enactment of acts and laws. What happens if the laws are not drafted? We have already seen how the scholarships provided by Tribhuvan University to marginalised groups was declared unconstitutional in the absence of specific laws. It is also not clear how 33 of seats shall be ensured in the federal parliament and in the upper house.
Also, gender-based discrimination is prohibited, but not made punishable.
There was an agreement between the political parties to provide either the presidency or the vice presidency to women at all times. The constitution, now, is vague in its wording, saying that these two positions will be occupied by people from different gender or different community. The language on representation in diplomatic corps and constitutional bodies has also been changed from the more specific 'proportional inclusion' to the vague 'inclusive principles'.
It was agreed in the preamble of the draft constitution the first CA wrote that all forms of discrimination and injustice created by patriarchy shall end. But the drafting committee in the second CA deleted the term 'patriarchy' as if it does not exist. The final draft has also omitted the rights to family and non-discrimination based on sexual orientation from the list of fundamental rights.
The long-awaited constitution is finally here, but the document could have been a very powerful one if it had not discriminated against women's right to confer citizenship to their children, if it had guaranteed women's equal participation in decision-making roles in local governance. But the leaders squandered the opportunities to recognise women as equal citizens of this country. One day, they will have to answer why.
Malla Pradhan is a senior advocate and former member of the Constituent Assembly