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Women, rights, and the Bill


MANJUSHREE THAPA


In the last days of 2000, the government made an unprecedented move: the Parliament's Law and Justice Committee sent the 11th Civil Code Amendment Bill, informally known as the "women's bill", for discussion to the grassroots level. Five teams headed by MPs from different parties were set up to conduct seminars in 14 districts (one for each zone) on the controversial bill. According to Committee Chairperson MP Mahendra Madhukar, the teams will solicit opinions from approximately 60 chosen individuals at each seminar, including district, municipality and VDC officials, members of women's NGOs, women in local government, and other significant personalities. The seminars were slated to start on 31 December in Jhapa and last ten days, with the final and possibly largest seminar taking place in Kathmandu. "The seminars are primarily concerned with the inheritance rights provisions in the bill, the subject of the greatest disagreement and debate," states MP Madhukar. "Our aim in conducting them is to gather a popular vote on the bill."

None of the prominent women's rights activists has been invited to the seminars so far (though the Women's Security Pressure Group is trying, on its own initiative, to attend as many as possible). It is but natural that they find many reasons to feel sceptical. Is this a manoeuvre aimed at removing the bill's inheritance rights provisions? Says Shanta Thapaliya, "This is not unlikely. I'd like to be positive about MPs taking initiative on women's rights. There is much conservatism in those involved, but maybe, by some luck, some good people will prevail in these seminars."

Manju Thapa is more blunt: "Why seek a popular vote only for a bill on women's rights? Other equally important bills, like the citizenship bill, weren't put through this process. The committee's members would rather see this bill fail than succeed, and so they're preparing the grounds to reject even the limited rights it grants women."

Drastically varying results could emerge from biased target groups and flawed methodologies. What do the questionnaires to be used in the seminars ask? MP Madhukari says, "That information won't be released beforehand. To do so would be like leaking test questions."

There are fair grounds to question the government's fancy footwork. Eleven years after democracy, the Constitution, the Muluki Ain Civil Code, and even new acts and court rulings remain stubbornly uncommitted to granting women legal equality. One part of the Constitution states: "No discrimination shall be made against any citizen in the application of general laws on grounds of religion, race, sex, caste, tribe or ideological conviction.." But lawmakers in Parliament and in the courts are loath to address the discrimination in that very document, and in the Muluki Ain Civil Code, an often-anachronistic code which, in compliance with Hindu law, holds women below men. It's a tribute to the small and overworked group of women's rights activists that the present bill has even made it to Parliament.

The first movement towards such a bill began in 1995, when lawyer Meera Dhungana filed a writ petition at the Supreme Court asking that the term "son" in Clause 16 of the Muluki Ain's inheritance law be repealed as it discriminates against daughters. Current inheritance laws allow a woman to inherit paternal property only if she is over 35 and unmarried. By contrast, all men over 18 enjoy the right to inherit paternal property in Nepal's prevailing system of angsha, or birthright inheritance.

The Supreme Court issued a ruling wrought with ambiguity. It agreed that Clause 16 discriminated against women, but declared that repealing it would grant women dual rights to inherit their parents' and husbands' properties, and thus discriminate against men. The Court ordered Parliament to submit a "just" bill within one year, but went on to state that changing current laws "could affect the patriarchal order" of Nepal. The Court explained: "Society cannot accept it when social values are changed suddenly."

This awkward ruling did force an apathetic Parliament to finally do something about gender discrimination in the Muluki Ain, but it also set up the Supreme Court as the guardian of the (patriarchal) Nepali social order. Women's rights advocate Sapana Pradhan Malla, who represented Dhungana in court, argues that the ruling was confusing. "How can discriminatory laws be changed without affecting the patriarchal order?" Malla asks.

Other women's rights activists are unified in criticising the Court's conservatism. But the Supreme Court is not the only conservative force. In complying with the court order, the Ministry of Law, Justice and Parliamentary Affairs submitted the 11th Muluki Ain Amendment Bill-"the women's bill"-in 1997. The bill betrays a reluctance to recognise women and men as equal. It almost seems designed to foil serious efforts for women's equal rights.

The bill addresses a mishmash of important issues, of which inheritance rights comprise a major and contentious part. Among other provisions, the bill stipulates that:

. daughters be named equal heirs of parental property;

. women receive part of their husbands' property before divorce;

. current age restrictions for widows to claim their husbands' property be removed; and

. time and age restrictions for married women to claim their husbands' property be removed.

The bill also facilitates some aspects of the implementation of laws. But many activists, including Malla, voice reservations about the bill's oversights. For instance, women must return paternal inheritance upon marriage-in effect they enjoy inheritance rights only so long as they remain single. Widows who re-marry must return their first husbands' inheritance. Married and unmarried daughters are treated unequally as heirs. In cases of bigamy, daughters of second wives are discriminated against. Women are granted no maintenance from their husbands during divorce proceedings which can take years. And women are granted no right to stay in their maternal homes in cases of domestic violence. "The bill still defines women's rights based on their marital status," Malla argues. "There is no recognition that women should enjoy equal rights through all stages of their lives."

The conditional legalising of abortion is another contentious aspect of the women's bill. Again, Malla expresses reservations about what is missing. A married woman may abort a foetus within 12 weeks-but only with her husband's consent. In cases of incest and rape, and if the birth will cause mental or physical harm to the woman or the child, the window is extended to 18 weeks. But unmarried, widowed and married but abandoned women will still be denied abortion rights. "The majority of women presently jailed for abortion won't be helped by this bill," Malla states. "Those who most need abortion legalised won't benefit at all."

The rest of the bill proposes changes in the areas of divorce, rape, succession, adoption and sentencing. Some of its provisions are positive: rape cases are to be tried in closed camera courts, with female police officers handling victims. Sentences in rape cases are increased. Significantly, paedophilia, which lacks a law of its own, has been encompassed by the bill's provisions on rape. The age of consent for marriage has been raised to 18 for women and 20 for men. And the sentence for bestiality has been equalised for both men and women (previously, women bore greater punishment). Yet in many of these issues, Malla points out oversights: for example, the bill fails to define rape more broadly than vaginal penetration.

The present bill touches on very few of the 54 separate discriminatory laws in the Constitution and in the Muluki Ain which are identified by the Forum for Women, Law and Development report. Even some Parliamentarians criticise it as conservative: over 70 amendment proposals have been submitted on it to date, including proposals by MPs of the CPN (UML) and other left parties who hold, among other things, that women should not return inherited paternal property upon marriage. As for the Nepali Congress party, which is responsible for drafting the bill, it has never been in a rush to take up the issue of women's equal rights. Equal inheritance rights have always been the rallying cry of the left. A will system, which would be an obvious alternative to Nepal's birthright system of angsha inheritance, is sporadically raised by non-left leaders, but they've displayed no initiative in discussing this option seriously.

A recent study by the Forum for Women, Law and Development shows that women are clamouring for change: 95 percent of the women interviewed felt that existing property laws discriminated against them; 90 percent felt the same way about citizenship, marriage and divorce laws; and 60 percent felt that laws related to legal and court proceedings were discriminatory. And as the "women's bill" goes all over the country for discussion, activists must ask themselves whether to support it. Manju Thapa feels that activists needn't bother lobbying to pass this bill in its present state-it is preferable to work for a bill that unambiguously grants women equal inheritance rights. Others feel that the bill is at least the beginning of a long struggle, and that it must be supported as such. "We should lend it our conditional support," says Malla. "But we must continue working for other important rights which it leaves undone."

In fact most women's rights activists are not focussing on this bill but on other efforts, like following through with the Convention on the Elimination of All Forms of Discrimination Against Women. Ratified without reservation by Nepal in 1991, this convention ostensibly provides legal avenues to overturn discriminatory national laws.

Meanwhile, MP Madhukar says the suggestions gathered by the five teams will be compiled into a report, which will then be considered by the committee as it redrafts the 11th Muluki Ain Amendment Bill. There is nothing to prevent this process from dragging on for months, or even years. Many activists feel the government is simply acting in bad faith, at best trying to pass only token amendments, or at worst to endlessly delay the passing of any amendment at all. How long will it take for the redrafted "women's bill" to be tabled for voting? "To send this bill to Parliament in a timely fashion is our main responsibility," says Madhukar. So it will be tabled in the upcoming session? After a pause, Madhukar says quite confidently, "Yes, I believe it will."

And if the redrafted bill contains no new provisions for inheritance rights? Thapaliya is quick to answer: "Let's see what the committee does. We are also prepared to respond."


LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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