NEPAL: Court Verdicts Bring Small Victories to Women

By Marty Logan Reprint | | Print |

Marty Logan

KATHMANDU, Nov 1 2005 (IPS) - Legislation providing that Nepali women be treated on par with men is no guarantee that such treatment will occur.

For example, when Sabina and her family made a trip to a Land Revenue Department office in the capital to register property that she and a sister were inheriting from her father, the officer took it upon himself to protect possible claims from her brother.

In a letter to the Nepali Times weekly newspaper, last month, Sabina (who did not give her last name) wrote how the officer asked if it was ‘fair for you sisters to claim parental property when your brother is still living?’.

”My parents finally intervened. My mother tried to explain that they believed in equality between sons and daughters,” continued the letter.

While a 2002 amendment to the Civil Code gives women the right to inherit property activists were unable to convince legislators to delete a provision that says a woman must return inherited property to her family when she marries.

According to Sabina, ”even if my sister is able to claim her right to property, she will not be able to sell it unless her husband and in-laws give their full consent”.

More recent decisions from Nepal’s Supreme Court appear to strengthen the rights of women in one of South Asia’s poorest nations, which is further suffering under a 10-year Maoist uprising in which 12,000 people have died.

Last month, the court issued two important decisions. One orders the government to take steps to end the practice of chhaupadi (forcing menstruating women to live in makeshift huts outside of the family home), which is still practised in remote areas in far western Nepal and in the adjoining Indian state of Uttaranchal.

The other decision declared invalid a law that said only males could register the birth or death of a child. It also ordered the government to provide birth and citizenship certificates to children whose parents are unknown, at least until the identity of the father can be traced.

But the verdict would have been much more significant if the court had decided that such documents could be issued based on the mother’s identity, says Sapna Pradhan Malla, president of the Forum for Women, Law and Development.

”The decision has not recognised a mother’s right; it has not gone beyond the traditional norms. A mother who gives birth, who is a citizen of this country, is not legally recognised as an independent citizen,” she told IPS.

Authorities, in this deeply patriarchal society, will grant citizenship certificates to women only if their fathers or husbands are known.

Nepal’s constitution guarantees equality of women and men in the ‘Hindu kingdom’ but courts too often interpret its special provisions as superseding fundamental rights, argues Malla, adding that ”the right to equality (of women and men) should prevail”.

Others have a slightly more positive take on recent decisions. Lawyer Raju Prasad Chapagai says it was a ””judicial departure” for the Supreme Court to agree to form an expert committee to study the citizenship of children and other issues concerning the Badi, one of the communities deemed ‘untouchable’ (or Dalit) in Nepal’s caste system.

The court accepted the committee’s report wholesale and ordered the government to develop programmes to improve the socio-economic status of the Badi, whose women have traditionally worked as prostitutes. ”We can use this precedent for other communities that are (disadvantaged),” said Chapagai in an interview at Pro Public, one of the non-governmental organisations (NGOs) that petitioned the court.

Both he and Pro Public program officer Sarmila Shrestha were quick to caution that it is too early to declare the Supreme Court’s justices ”gender sensitive”. But they do believe that ”sometimes you can say (such positive results) are a result of judicial education”.

Pro Public has been running a series of workshops delving into issues of gender and the law for lawyers and judges from Nepal and throughout South Asia. It also studied 50 decisions in district courts across the country and found judges ”very poor in terms of using the provisions of international law that protects women’s rights, such as the Convention to End Discrimination Against Women (CEDAW)”.

”We need to educate them (lower judiciary) a lot,” said Shrestha.

Nepal’s new Chief Justice Dilip Kumar Paudel has made many statements about the Supreme Court making justice for women a priority since he was sworn in this summer. Malla said she hoped to see ”the awareness displayed in (the chief justice’s) speeches reflected in his judgements”.

But such decisions themselves won’t improve the lives of Nepal’s most disadvantaged women, says Durga Sob, president of the Feminist Dalit Organisation (FEDO), also based in Kathmandu.

”For the activists these decisions are good – they’ll be able to claim their rights. But those who are backward or living in remote areas will not benefit.” Lack of information, she adds, is a big problem. ”Dalit women (20 percent of all Nepal’s women) are uneducated, illiterate and unaware, as well as discriminated against. It’s difficult to deliver information about these decisions and women’s rights to the community level.”

And also to the local-level bureaucrats who are supposed to enact court decisions ensuring women’s rights. ”I haven’t been able to figure out why the government clerk had to take the matter, which was none of his business, so personally,” wrote Sabina in her letter to Nepali Times.

”It is only thanks to people like my father and my brother that gender equality has any hope in this country. Also women like my mother, who stood up to that opinionated, chauvinist pig,” Sabina wrote.