To be very specific, the Nepalese Judiciary, aftermath of promulgation of the Constitution of the Kingdom of Nepal 2047(1990), has played vital role to protect and promote social justice in relation to women. Gender equality and gender justice are the pillars on which the Supreme Court has pronounced various land mark decisions. Few decisions delivered through the Supreme Court, specially in the writ petitions and Public Interest Litigations are really progressive and their close nexus with feminist jurisprudence can be easily traced out. It is likely to be more gender friendly judgment to be rendered from the courts in the days to come as the whole set up is advancing towards 'a new horizon of freedom.'
Nepal has good enough case laws relating to gender justice and justice with feminist components. For the purpose of the paper, the cases related to property and privacy which are really progressive, in other word, radical, are discussed as follows:
a) Mira Dhungana v. HMG Ministry of Law, Justice and Parliamentary Affairs and others
A leading case where a daughter is denied the right to inherit paternal property (a daughter has to be unmarried and must attain 35 years to inherit paternal property whereas a son is eligible to inherit paternal property right after his birth) under existing laws, was challenged in the Supreme Court in Meera v. Ministry of Law and Justice. The Court declared that the existing provision to inherit paternal property is conditional and a directive was issued to the government to introduce a Bill in the legislature within a year, reviewing laws related to property rights. At the same time, the Court also asked the government to take into consideration the patriarchal nature of the society, social structure, and fear of positive discrimination against men.
The hasty criticism of this judgment voiced that it discriminated men against women as women retains or are likely to retain double capacity to acquire partition from father and husband. Similarly, some opined it as a next to a dowry system. The best part of this judgment is that it has recognized equal property right between two sexes and positively, an equal property right is a milestone towards gender equality. Nevertheless, the decision is criticized by both feminists and anti-feminists.
b) Annapurna Rana v. Kathmandu District Court and others
In Annapurna Rana v. Kathmandu District Court and Others, petitioner challenged a court order compelling her to undergo a “virginity test.” The Supreme Court invalidated the order as a violation of petitioner’s constitutional right to privacy, recognizing the right to privacy over one’s own body and reproductive organs as an “inviolable” right under the constitution.
This judgment has cropped up some fundamental legal issues and they are:
i) The Privacy Discourse
ii) Marriage, family system and the law
iii) Control over sexuality
iv) Effect on rule of evidence
v) Social empowerment of women
Interestingly, the judgment has been severely criticized by both feminists and non feminists, specially in the respect of marital status and matrimonial relationship. More surprisingly, the court has recognized cohabitation and unleashed control over sexuality as the decision itself stated that mere sexual relationship does not create any change on the legal status of a woman or girl and even, a boy friend and girl friend may enjoy biological fulfilment and even procure children, which ipso facto does not establish matrimonial relationship between them. The main pitfall of this decision is that it is ambiguous. It is still a debate that such type of decision actually provides a fertile ground for feminism and feminist jurisprudence or just encourages male sexual outrage, sexual abuse, violence and exploitation against women.
References
1. Meera Dhungana's Case- NKP 6, D.N. 6013, at 462, (2052)
2. Annapurana Rana's Case- Writ No. 2187 of 2053, decided on 2055/2/25 by Division Bench of the Supreme Court of Nepal.
3. Surendra Bhandari, Court-Constitution & Global Public Policy (A Study on Nepalese Perspective),Democracy Development &Law, Anamnagar, Kathmandu, (First edn.), 1999.
Saturday, June 25, 2011
Monday, June 20, 2011
Women and the Constitution: Reasonable Women's View in Nepalese Context
(Published in Nepal Law Review @ 2010- an issue dedicated to the constitution making process in Nepal)
Women are fortunate, enough to have honorific titles and epithets such as 'Creator (Janani)', 'Fair sex', 'Better half'. They have been praised in religious texts and literature. At the same time, they have been considered as the weaker sex. Historically, they were denied voting rights, denied equal pay for equal work, denied literacy and were subjected to various gender based and social biases. As far as the Nepalese context is concerned, women are expected to be exemplary wives and mothers to hold the family together. Their productive role is undermined and only reproductive role is well recognized. Consequently, gender discrimination is fact, not fable and day to day experience for women, not accidental regardless of the situation of the society whether peace or conflict. An update of the study on discriminatory laws relating to women conducted by Forum for Women, Law and Development in 2009 identified 103 provisions and 92 schedules in various Acts and regulations which continue to discriminate against women both in letter and in effect. Despite of all this oddities, Nepalese women are waiting to see their issues to be addressed by the New Constitution and their rights to be safeguarded by it. Specifically, they want to feel ownership over it.
They said invariably with derision- "Where one stands on an issue depends on where one sits." However, the paper seeks to study the very notion through women's perspective. Notably, aftermath of ten-year-long arms-conflict, the historic constitution making process has opened avenues of hopes and aspirations to people from all walks and life. In this scenario, the paper aims to analyze the close nexus and intricacies between women and the constitution through pragmatic and feminist jurisprudence footing and most essentially reasonable women's view.
Part I: Women's ownership over the constitution
In the eye of the constitutional practices, the nation's future primarily depends upon three basic things- the constitution, the way it functions and people's ownership towards it. Without people's ownership, the constitution remains as dead letters. In this regard, Harvey has expressed, "...The success of a constitution often rests on how far it can reconcile opposing interest." As far as Nepalese peace and the constitution making process is concerned, if the new constitution fails to reconcile opposing interests of diverse and disperse groups including women, there is likely to be less chance of gaining wide public acceptance and respect. More specifically, if it fails to address and include women's issues and interest, 50% population's volition and aspiration will be bypassed and circumvented. Consequently, it will have adverse effect on the edifice of the constitution and will be very unfortunate for whole peace and constitution making process therein.
Referring to the past constitutional history, Nepal has had the constitutional regime of six different constitutions promulgated thereby different kind of sovereign power along with political and social change in Nepalese society. The first constitution formulated in 1948 has had guaranteed general equality in Article 4 which reads: "Subject to the principle of public order and morality this constitution guarantees to the citizens of Nepal freedom of person, freedom of speech, liberty of the press, freedom of assembly and discussion, freedom of worship, complete equality in the eye of the law, cheap and speedy justice, universal suffrage for all adults, security of private property as defined by the laws of the state as at present existing and laws and rules to be made hereunder." When the Constitution of the Kingdom of Nepal, 1990 was promulgated, few components of substantive equality were introduced in various provisions under fundamental rights and Directive principles and policies of the state. In the course of the steady and gradual transition from welfare notion to substantive equality, Women's right was envisaged under the article 20 of Interim Constitution of Nepal 2007. Beside equality notions in various fundamental rights whether be it formal or substantive, the Article 20 can be considered as a good start. This has, to some extent, stimulated and strengthened ownership of women towards the constitution. There is no doubt that the new constitution should at least protect the following human rights for all citizens regardless of religion, race, gender, caste, class, tribe, origin, language or ideological convictions and also taking into the account the fundamental principles of equality of rights and respect for human dignity and equally and importantly enshrine the mechanism for enjoyment and entitlements and remedial measures:
o Right to life, liberty and security
o Right to equality (nationality, public accessibility, participation)
o Right to equitability
o Right to information
o Right to privacy
o Right against torture or other cruel, inhuman or degrading treatment or punishment
o Right to property
o Right relating to justice including social, economic justice
o Right relating to constitutional remedy
In addition to this, bearing in the mind the constitution as the supreme law, the state as Parens patraie and women as an important social entitiy, women's participation and contribution should not be overlooked and their experience and needs should be equally addressed under the constitution which is described as one of major features of the democratic constitution. For instance, the right against any form of discrimination including violence against women and sexual abuses and women's sexual and reproductive rights inter alia should be protected as the fundamental rights. As per the doctrine of state obligation, the state must protect and respect women's rights at first place and fulfill responsibilities thereto along with major actors of the society including women organizations and human rights organizations.
Part II: Women friendly constitution or gender neutral language
At many instances, it seems a simple question why the constitution is important for women or why women's experiences are different and specific incorporations are needed under any constitution. At the same time, it is important to examine why women around the world have found themselves and their experiences and perceptions largely excluded from the purview of the law. Practically, the laws and legal institutions were of men, run by men and for men essentially and only exceptionally for women. The legal language marginalized women by saying that "he" includes "she". The legal language and reasoning has always been gendered, informed by men's experiences and derived from the powerful social position of men, relative to women. Lucinda M. Finley opines that the gendered nature of legal language is what makes it powerful and limited. The power and limitations of male legal language were expeditiously evident and a language of dichotomies, opposition and conflict fell in the silence of lamb. The law's cognition of women is refracted through the male eye rather than through women's experiences and definitions. As Nicola Lacey states that law produces sexed subjects, Women are sexed by the law because sexualized meanings are attributed to the corporeality of women. Law is therefore a reflection of male interests or values, and it is part of the patriarchal state. Thus, inquiring into the politics of law including law's role in perpetuating patriarchal hegemony is crucial. At the same time, Inquiry and activity dedicated to describing women's subordination, exploring its nature and extent, tracing out their interwoven reasons should be made as Clare Dalton argues, "we cannot only research what happens to women in the world shaped by law, law language and legal institutions, but challenge even the structure of legal thought as contingent and in some culturally specific sense "male," implying the need for some radical changes than the ameliorative emendations we have offered in the past." Moreover, some French feminists have argued for creating a new language to bring women's experience, perspectives and voices into law. Regardless of radical/reformist debate and sameness/difference debate, the basic genesis lays on the notion that the law which does not acknowledge or respond to the needs of women, must be changed and the change may be liberal or progressive or radical. Thus, the constitutional framework is viewed with much significant and at many instances, essential, central and indispensable and it is mainly for two genuine reasons: first, at prima facie, all laws inconsistent with the constitution shall, to the extent of such inconsistency, be void. Secondly, another key factor is the justifiability of the rights conferred by the constitution and their power associated thereto claim remedy.
Additionally, by the innate nature, the constitution in general encourages equality and non discrimination. Generally, legal texts including the constitutional provisions are interpreted in compliance with the fundamentals of gender justice in today's context. In this regard, the Nepalese constitution including the past constitutions has largely forbidden the discrimination against women normatively and similarly, the new constitution will incorporate provisions of equality and non discrimination against any citizens including women. The world experiences relating to normative prohibitions reveal that such prohibitions have rarely been able to banish inequality. For instance, the Fourteenth Amendment to the United States Constitution forbade discrimination, discrimination against the blacks and women but the discriminatory practices continued thereafter for a long time. Even in India, discrimination against women was forbidden only at the normative form at the time of promulgation of the constitution of Union of India, 1950. However, majority of population considers the constitutional provisions in a special way and emphasizes on their mandatory nature. And at initial phase, they happened to be correct coincidently and later, it became regular phenomena when the Supreme Court in the most of countries pronounced justice on such constitutional basis and even through judicial activism. Several case petitions as public interest cases were lodged in which the Supreme Court of Nepal declared discriminatory laws against women ultra vires and issued directives to enact and implement laws under Article 88 of the Constitution of the Kingdom of Nepal 1990 and Article 107 of the Interim Constitution of Nepal 2007 whether be it the case petition Advocate Sapana Pradhan Malla vs. Ministry of Law, Justice and Parliament et. al. or Advocate Meera Dhungana v. The secretariat of the council of ministers et. al. or Lilee Thapa et. at. v. the Office of Prime Minister and the council of Ministers et. al. Many contesting issues of women's inequality and discrimination including exclusion, distinction such as rape, marital rape, property, equal payment and privacy were amicably settled with framing new laws.
Along with the paradigm shift of reasonable women and reasonable expectations from antique conception of reasonable man and his expectations, many women, mostly women activists, reformist and feminists have mooted for women friendly constitution in Nepal. This can be understood as a very beginning process of creating a new language or creating a new legal history. In other words, it urges for a fresh start. On the other hand, the century long history resonates that the constitution should employ gender neutral language and more technically, the notion reflects that the constitution should be citizen friendly. It seems to be a resilience approach as it offers the ample of opportunity relating to gender justice or equally and reformation, the legal language is supposed to be historically bound. At the mean time, many view the debate of women friendly constitution/ gender neutral language as the social structural tension- patriarchy vs. matriarchy. Though no one can speculate exactly whether women friendly constitution may or may not lead to the matriarchal society, this idea is viewed with profound suspicions and such speculations. Contrary to this, the former claimants are arguing that women are being kicked in the name of being stumbled over and the reparation, if not compensation should be paid in the form of progressive realization- women friendly constitution. Further, reasonable women elaborate that it should not be viewed through the glass of Spinozistic principle "Every determination is negation" or Hegel's popular principle "Every negation is determination." It implies that when they say this is the women friendly constitution, they do not expressively or impliedly connote that it is not men friendly constitution or environment friendly constitution or something else likewise. Regardless of the explanation of the women friendly constitution, pragmatists firmly believe that 197 women Constituent Assembly members out of 601 may not be reasonably enough to make the women friendly constitution in Nepal. Being specific to the Nepalese context, it is necessary to acknowledge the importance of gender neutral language and its meaningful exercise in order to bring substantive social change through the framework of the constitution notwithstanding the debate and largely, the public language of law should not contribute to the silencing of women.
Part III: An integrated approach of equality, equitability and non discrimination for Nepalese Women
In the past, equality means no discrimination. Gradually it became non discrimination and lately, unfair discrimination. Recent developments are centered to the theme that non discrimination does not mean equality. Thus, the ambit of an integrated approach included equality and non discrimination together and the model of substantive equality including other important tenets took a shape in the legal course and the equitability notion is introduced to encompass specific incorporations. The positive implications of John Locke's idea "every body is free and equal" or Rousseau's emphasis "the common good and treat human beings as naturally equal" or Aristotle's principle "treat like cases as like" or Article 1 of the Universal Declaration of Human Rights 1948 should be taken into the account along with timely exigencies and specific emergence. The preamble of the Convention on the elimination of all forms of discrimination against women 1979 (CEDAW 1979) includes ". . .Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. . ." and CEDAW 1979 stresses on the state obligation in order to ensure non discrimination and equality in the spheres such as participation in the political and public life of a nation, nationality, education, employment, health care, economic and social life, and marriage and family relations. Therefore, the constitution of Nepal should be attuned with international human rights documents including CEDAW 1979. In this regard, the approach can be described as an integrated approach of equality, equitability and non discrimination for Nepalese Women and inter alia, the status quo of Nepalese women should be taken into the account.
Meanwhile referring to Wendy Williams, a liberal feminist, there are two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual difference. She favoured the former since difference always means women's difference and this provides the basis for better treatment to them in comparison to men whereas an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably. It is a tussle "We are same" v. "We are different."
In this light, the rational course between equality and equitability should be pursued which may be best described as the developed percept of the traditionally once abandoned "separate but equals" and "equals but separate." At the same time, the Indian experience of the gender neutrality of the law should be referred where it worked to the disadvantage of the woman who needed a gender sensitive legal approach. However, the responsible Government of Nepal should not make a public policy through the budget or whatsoever in which cash prize is to be distributed in order to encourage inter-caste marriage with Dalit and marriage with a widow. The effect of such policy should be critically analyzed and the calculation of the balance of inconvenience should be made in prior. Any immature policy will not promote equity, fairness or justice in the society. Policy makers and laws makers have to be sensitive to the changing times and should keep interests of women in mind while making laws. Similarly, inclusion of women in all state level mechanisms through reservation policy or any other affirmative policy should be enforced with the long term visions. As Upendra Baxi says "Engendering human rights" or as Sapana Pradhan Malla and Ayasha Sen talk about "Engendering the Nepalese constitution: A Women Perspective" , reasonable women's expectations of entitlements and enjoyments of de jure and de facto equality, equitability and non discrimination aftermath of the promulgation of seventh Nepalese Constitution is clearly and explicitly legitimate and valid.
Conclusion:
The legal tragedy of the third world lays often in the difference between law in book and law in practice. Particularly, the echoes of the third world resonate nothing but the abundance of confusions and moreover, diverse feminist approaches whether be it protectionist, reformist or radical seem to be confusing in the course of legal reasoning, even in many instances, people find the term "feminist jurisprudence or feminist legal theory" disturbing. On the other hand, mere constitutional guarantee should neither provide any entitlements and enjoyments nor produce any substantial results. They will be rhetoric and in such case, the justifiability may be ambiguous depending upon various factors mainly politico-legal structure of the society and critically discretion of the judges. Thus, the efficacy of subject matter relating to women and the constitution should be included in the purview of the constitution and consequently, in other domestic laws, at any cost, without being sexed. The constitution should encourage equality, equitability and non discrimination. The gender neutral language should be employ in the course. Primarily, the state must protect and respect women's rights at first place and fulfill responsibilities with collaborative effort of women organizations and human rights organizations. Exclusively and absolutely, no constitutional or legal provisions should ignore or overlook or surpass half of Nepal's humanity viz. Nepalese women regardless of qualifications such as rich, poor, professional, political, homemaker, peacemaker, specific physical condition, specific ethnicity and religion and adequately, the constitution should bridge the gap between the book and law in action. After all, law and legal language both matter and in today's Nepalese Context, the new democratic constitution matters the most thereto.
References
1.Sapana Pradhan Malla and Ayasha Sen, "Engendering the Nepalese Constitution: A Women Perspective", Nepal Bar Council Law Journal 2008, p. 95.
2. M.D.A. Freemen (ed.), Lloyd's Introduction to Jurisprudence, Sweet & Maxwell, London, (6th edn.), 1996.
3. Upendra Baxi, "From Human Rights to be the Right to be a women", (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, pp. 275-290
4.S.P. Sathe, "Gender, Constitution and the Court", (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, p. 117.
5. Law’s Power, “The Sexed Body and Feminist Discourse”, (C. Smart, Law, Crime and Sexuality: Essays in Feminism) Sage Publications, London, 1995, pp. 70-87.
6. Indra Majupuria, Nepalese Women [Status and Role] Gender Approach, Modern Printing Press, Kathmandu, 2007, p. 14
7.Shilaja Nagendra, Women's Rights, ABD Publishers, India, 2006, p. v
8. Anu Lohani, "Providing Justice for Women: Interface Between Law and Literature", Nat’L JUD. ACAD. L.J. 2008. p.123
9. Human Rights Decision Publication 2059 (Special Issue), p. 144
10. NKP 2061, Vol. 4, p. 377 (decision no. 7353)
11. NKP 2062, Vol. 9, p. 1045 (decision no. 7588)
12. Y. Masih, A Critical History of Western Philosophy (Greek, Medieval and Modern), Motilal Banarsidass Publishers, Delhi, p. 430.
(P.S. The paper was furnished with citations and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
Women are fortunate, enough to have honorific titles and epithets such as 'Creator (Janani)', 'Fair sex', 'Better half'. They have been praised in religious texts and literature. At the same time, they have been considered as the weaker sex. Historically, they were denied voting rights, denied equal pay for equal work, denied literacy and were subjected to various gender based and social biases. As far as the Nepalese context is concerned, women are expected to be exemplary wives and mothers to hold the family together. Their productive role is undermined and only reproductive role is well recognized. Consequently, gender discrimination is fact, not fable and day to day experience for women, not accidental regardless of the situation of the society whether peace or conflict. An update of the study on discriminatory laws relating to women conducted by Forum for Women, Law and Development in 2009 identified 103 provisions and 92 schedules in various Acts and regulations which continue to discriminate against women both in letter and in effect. Despite of all this oddities, Nepalese women are waiting to see their issues to be addressed by the New Constitution and their rights to be safeguarded by it. Specifically, they want to feel ownership over it.
They said invariably with derision- "Where one stands on an issue depends on where one sits." However, the paper seeks to study the very notion through women's perspective. Notably, aftermath of ten-year-long arms-conflict, the historic constitution making process has opened avenues of hopes and aspirations to people from all walks and life. In this scenario, the paper aims to analyze the close nexus and intricacies between women and the constitution through pragmatic and feminist jurisprudence footing and most essentially reasonable women's view.
Part I: Women's ownership over the constitution
In the eye of the constitutional practices, the nation's future primarily depends upon three basic things- the constitution, the way it functions and people's ownership towards it. Without people's ownership, the constitution remains as dead letters. In this regard, Harvey has expressed, "...The success of a constitution often rests on how far it can reconcile opposing interest." As far as Nepalese peace and the constitution making process is concerned, if the new constitution fails to reconcile opposing interests of diverse and disperse groups including women, there is likely to be less chance of gaining wide public acceptance and respect. More specifically, if it fails to address and include women's issues and interest, 50% population's volition and aspiration will be bypassed and circumvented. Consequently, it will have adverse effect on the edifice of the constitution and will be very unfortunate for whole peace and constitution making process therein.
Referring to the past constitutional history, Nepal has had the constitutional regime of six different constitutions promulgated thereby different kind of sovereign power along with political and social change in Nepalese society. The first constitution formulated in 1948 has had guaranteed general equality in Article 4 which reads: "Subject to the principle of public order and morality this constitution guarantees to the citizens of Nepal freedom of person, freedom of speech, liberty of the press, freedom of assembly and discussion, freedom of worship, complete equality in the eye of the law, cheap and speedy justice, universal suffrage for all adults, security of private property as defined by the laws of the state as at present existing and laws and rules to be made hereunder." When the Constitution of the Kingdom of Nepal, 1990 was promulgated, few components of substantive equality were introduced in various provisions under fundamental rights and Directive principles and policies of the state. In the course of the steady and gradual transition from welfare notion to substantive equality, Women's right was envisaged under the article 20 of Interim Constitution of Nepal 2007. Beside equality notions in various fundamental rights whether be it formal or substantive, the Article 20 can be considered as a good start. This has, to some extent, stimulated and strengthened ownership of women towards the constitution. There is no doubt that the new constitution should at least protect the following human rights for all citizens regardless of religion, race, gender, caste, class, tribe, origin, language or ideological convictions and also taking into the account the fundamental principles of equality of rights and respect for human dignity and equally and importantly enshrine the mechanism for enjoyment and entitlements and remedial measures:
o Right to life, liberty and security
o Right to equality (nationality, public accessibility, participation)
o Right to equitability
o Right to information
o Right to privacy
o Right against torture or other cruel, inhuman or degrading treatment or punishment
o Right to property
o Right relating to justice including social, economic justice
o Right relating to constitutional remedy
In addition to this, bearing in the mind the constitution as the supreme law, the state as Parens patraie and women as an important social entitiy, women's participation and contribution should not be overlooked and their experience and needs should be equally addressed under the constitution which is described as one of major features of the democratic constitution. For instance, the right against any form of discrimination including violence against women and sexual abuses and women's sexual and reproductive rights inter alia should be protected as the fundamental rights. As per the doctrine of state obligation, the state must protect and respect women's rights at first place and fulfill responsibilities thereto along with major actors of the society including women organizations and human rights organizations.
Part II: Women friendly constitution or gender neutral language
At many instances, it seems a simple question why the constitution is important for women or why women's experiences are different and specific incorporations are needed under any constitution. At the same time, it is important to examine why women around the world have found themselves and their experiences and perceptions largely excluded from the purview of the law. Practically, the laws and legal institutions were of men, run by men and for men essentially and only exceptionally for women. The legal language marginalized women by saying that "he" includes "she". The legal language and reasoning has always been gendered, informed by men's experiences and derived from the powerful social position of men, relative to women. Lucinda M. Finley opines that the gendered nature of legal language is what makes it powerful and limited. The power and limitations of male legal language were expeditiously evident and a language of dichotomies, opposition and conflict fell in the silence of lamb. The law's cognition of women is refracted through the male eye rather than through women's experiences and definitions. As Nicola Lacey states that law produces sexed subjects, Women are sexed by the law because sexualized meanings are attributed to the corporeality of women. Law is therefore a reflection of male interests or values, and it is part of the patriarchal state. Thus, inquiring into the politics of law including law's role in perpetuating patriarchal hegemony is crucial. At the same time, Inquiry and activity dedicated to describing women's subordination, exploring its nature and extent, tracing out their interwoven reasons should be made as Clare Dalton argues, "we cannot only research what happens to women in the world shaped by law, law language and legal institutions, but challenge even the structure of legal thought as contingent and in some culturally specific sense "male," implying the need for some radical changes than the ameliorative emendations we have offered in the past." Moreover, some French feminists have argued for creating a new language to bring women's experience, perspectives and voices into law. Regardless of radical/reformist debate and sameness/difference debate, the basic genesis lays on the notion that the law which does not acknowledge or respond to the needs of women, must be changed and the change may be liberal or progressive or radical. Thus, the constitutional framework is viewed with much significant and at many instances, essential, central and indispensable and it is mainly for two genuine reasons: first, at prima facie, all laws inconsistent with the constitution shall, to the extent of such inconsistency, be void. Secondly, another key factor is the justifiability of the rights conferred by the constitution and their power associated thereto claim remedy.
Additionally, by the innate nature, the constitution in general encourages equality and non discrimination. Generally, legal texts including the constitutional provisions are interpreted in compliance with the fundamentals of gender justice in today's context. In this regard, the Nepalese constitution including the past constitutions has largely forbidden the discrimination against women normatively and similarly, the new constitution will incorporate provisions of equality and non discrimination against any citizens including women. The world experiences relating to normative prohibitions reveal that such prohibitions have rarely been able to banish inequality. For instance, the Fourteenth Amendment to the United States Constitution forbade discrimination, discrimination against the blacks and women but the discriminatory practices continued thereafter for a long time. Even in India, discrimination against women was forbidden only at the normative form at the time of promulgation of the constitution of Union of India, 1950. However, majority of population considers the constitutional provisions in a special way and emphasizes on their mandatory nature. And at initial phase, they happened to be correct coincidently and later, it became regular phenomena when the Supreme Court in the most of countries pronounced justice on such constitutional basis and even through judicial activism. Several case petitions as public interest cases were lodged in which the Supreme Court of Nepal declared discriminatory laws against women ultra vires and issued directives to enact and implement laws under Article 88 of the Constitution of the Kingdom of Nepal 1990 and Article 107 of the Interim Constitution of Nepal 2007 whether be it the case petition Advocate Sapana Pradhan Malla vs. Ministry of Law, Justice and Parliament et. al. or Advocate Meera Dhungana v. The secretariat of the council of ministers et. al. or Lilee Thapa et. at. v. the Office of Prime Minister and the council of Ministers et. al. Many contesting issues of women's inequality and discrimination including exclusion, distinction such as rape, marital rape, property, equal payment and privacy were amicably settled with framing new laws.
Along with the paradigm shift of reasonable women and reasonable expectations from antique conception of reasonable man and his expectations, many women, mostly women activists, reformist and feminists have mooted for women friendly constitution in Nepal. This can be understood as a very beginning process of creating a new language or creating a new legal history. In other words, it urges for a fresh start. On the other hand, the century long history resonates that the constitution should employ gender neutral language and more technically, the notion reflects that the constitution should be citizen friendly. It seems to be a resilience approach as it offers the ample of opportunity relating to gender justice or equally and reformation, the legal language is supposed to be historically bound. At the mean time, many view the debate of women friendly constitution/ gender neutral language as the social structural tension- patriarchy vs. matriarchy. Though no one can speculate exactly whether women friendly constitution may or may not lead to the matriarchal society, this idea is viewed with profound suspicions and such speculations. Contrary to this, the former claimants are arguing that women are being kicked in the name of being stumbled over and the reparation, if not compensation should be paid in the form of progressive realization- women friendly constitution. Further, reasonable women elaborate that it should not be viewed through the glass of Spinozistic principle "Every determination is negation" or Hegel's popular principle "Every negation is determination." It implies that when they say this is the women friendly constitution, they do not expressively or impliedly connote that it is not men friendly constitution or environment friendly constitution or something else likewise. Regardless of the explanation of the women friendly constitution, pragmatists firmly believe that 197 women Constituent Assembly members out of 601 may not be reasonably enough to make the women friendly constitution in Nepal. Being specific to the Nepalese context, it is necessary to acknowledge the importance of gender neutral language and its meaningful exercise in order to bring substantive social change through the framework of the constitution notwithstanding the debate and largely, the public language of law should not contribute to the silencing of women.
Part III: An integrated approach of equality, equitability and non discrimination for Nepalese Women
In the past, equality means no discrimination. Gradually it became non discrimination and lately, unfair discrimination. Recent developments are centered to the theme that non discrimination does not mean equality. Thus, the ambit of an integrated approach included equality and non discrimination together and the model of substantive equality including other important tenets took a shape in the legal course and the equitability notion is introduced to encompass specific incorporations. The positive implications of John Locke's idea "every body is free and equal" or Rousseau's emphasis "the common good and treat human beings as naturally equal" or Aristotle's principle "treat like cases as like" or Article 1 of the Universal Declaration of Human Rights 1948 should be taken into the account along with timely exigencies and specific emergence. The preamble of the Convention on the elimination of all forms of discrimination against women 1979 (CEDAW 1979) includes ". . .Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. . ." and CEDAW 1979 stresses on the state obligation in order to ensure non discrimination and equality in the spheres such as participation in the political and public life of a nation, nationality, education, employment, health care, economic and social life, and marriage and family relations. Therefore, the constitution of Nepal should be attuned with international human rights documents including CEDAW 1979. In this regard, the approach can be described as an integrated approach of equality, equitability and non discrimination for Nepalese Women and inter alia, the status quo of Nepalese women should be taken into the account.
Meanwhile referring to Wendy Williams, a liberal feminist, there are two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual difference. She favoured the former since difference always means women's difference and this provides the basis for better treatment to them in comparison to men whereas an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably. It is a tussle "We are same" v. "We are different."
In this light, the rational course between equality and equitability should be pursued which may be best described as the developed percept of the traditionally once abandoned "separate but equals" and "equals but separate." At the same time, the Indian experience of the gender neutrality of the law should be referred where it worked to the disadvantage of the woman who needed a gender sensitive legal approach. However, the responsible Government of Nepal should not make a public policy through the budget or whatsoever in which cash prize is to be distributed in order to encourage inter-caste marriage with Dalit and marriage with a widow. The effect of such policy should be critically analyzed and the calculation of the balance of inconvenience should be made in prior. Any immature policy will not promote equity, fairness or justice in the society. Policy makers and laws makers have to be sensitive to the changing times and should keep interests of women in mind while making laws. Similarly, inclusion of women in all state level mechanisms through reservation policy or any other affirmative policy should be enforced with the long term visions. As Upendra Baxi says "Engendering human rights" or as Sapana Pradhan Malla and Ayasha Sen talk about "Engendering the Nepalese constitution: A Women Perspective" , reasonable women's expectations of entitlements and enjoyments of de jure and de facto equality, equitability and non discrimination aftermath of the promulgation of seventh Nepalese Constitution is clearly and explicitly legitimate and valid.
Conclusion:
The legal tragedy of the third world lays often in the difference between law in book and law in practice. Particularly, the echoes of the third world resonate nothing but the abundance of confusions and moreover, diverse feminist approaches whether be it protectionist, reformist or radical seem to be confusing in the course of legal reasoning, even in many instances, people find the term "feminist jurisprudence or feminist legal theory" disturbing. On the other hand, mere constitutional guarantee should neither provide any entitlements and enjoyments nor produce any substantial results. They will be rhetoric and in such case, the justifiability may be ambiguous depending upon various factors mainly politico-legal structure of the society and critically discretion of the judges. Thus, the efficacy of subject matter relating to women and the constitution should be included in the purview of the constitution and consequently, in other domestic laws, at any cost, without being sexed. The constitution should encourage equality, equitability and non discrimination. The gender neutral language should be employ in the course. Primarily, the state must protect and respect women's rights at first place and fulfill responsibilities with collaborative effort of women organizations and human rights organizations. Exclusively and absolutely, no constitutional or legal provisions should ignore or overlook or surpass half of Nepal's humanity viz. Nepalese women regardless of qualifications such as rich, poor, professional, political, homemaker, peacemaker, specific physical condition, specific ethnicity and religion and adequately, the constitution should bridge the gap between the book and law in action. After all, law and legal language both matter and in today's Nepalese Context, the new democratic constitution matters the most thereto.
References
1.Sapana Pradhan Malla and Ayasha Sen, "Engendering the Nepalese Constitution: A Women Perspective", Nepal Bar Council Law Journal 2008, p. 95.
2. M.D.A. Freemen (ed.), Lloyd's Introduction to Jurisprudence, Sweet & Maxwell, London, (6th edn.), 1996.
3. Upendra Baxi, "From Human Rights to be the Right to be a women", (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, pp. 275-290
4.S.P. Sathe, "Gender, Constitution and the Court", (Engendering Law: Essays in honor of Lotika Sarkar, A Dhanda and A. Parashar (eds.)), Eastern Book Co., Lucknow, 1999, p. 117.
5. Law’s Power, “The Sexed Body and Feminist Discourse”, (C. Smart, Law, Crime and Sexuality: Essays in Feminism) Sage Publications, London, 1995, pp. 70-87.
6. Indra Majupuria, Nepalese Women [Status and Role] Gender Approach, Modern Printing Press, Kathmandu, 2007, p. 14
7.Shilaja Nagendra, Women's Rights, ABD Publishers, India, 2006, p. v
8. Anu Lohani, "Providing Justice for Women: Interface Between Law and Literature", Nat’L JUD. ACAD. L.J. 2008. p.123
9. Human Rights Decision Publication 2059 (Special Issue), p. 144
10. NKP 2061, Vol. 4, p. 377 (decision no. 7353)
11. NKP 2062, Vol. 9, p. 1045 (decision no. 7588)
12. Y. Masih, A Critical History of Western Philosophy (Greek, Medieval and Modern), Motilal Banarsidass Publishers, Delhi, p. 430.
(P.S. The paper was furnished with citations and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
Sunday, June 19, 2011
Women, Feminism and Popular debates in feminist jurisprudence
(Excerpt of paper -Feminism and Feminist Jurisprudence @ 2010- I still feel that pen drop silence in the class while I was presenting this paper... That was an honour to a presenter who did not boast or defend any of her ideas but just present with proper ground.)
'Women' as a principal subject in feminism and feminist jurisprudence is hitting the public sphere nationally and internationally. Feminism as 'the theory of the political, economic, and social equality of the sexes' and at the same time, 'organized activity on behalf of women's rights and interests' and feminist jurisprudence as 'the study of the construction and workings of the law from perspectives which foreground the implications of the law for women and women’s lives' are shaping the new notion of 'women.' The traditional conception of 'women' has almost obsolete now and the new notion based on the human dignity is recognition in more profound way, in legal instruments at the best, if not in practice at the full extent.
The term ‘feminism’ has many dimensions and different meaning associated thereto which are equally contested. For instance, some writers see feminism synonymous to historically specific political movement in the US and Europe whereas other writers use it to refer to the belief that there are injustices against women. No doubt, "feminism" has close connection with women's activism from the late 19th century to the present and there is discretion how one should view it- as a separate realm of thought or a product of political, social, cultural movements.
Historically, in the mid-1800s the term 'feminism' was used to refer to "the qualities of females" and aftermath of the First International Women's Conference in Paris in 1892,it was used regularly in English for a belief in and advocacy of equal rights for women based on the idea of the equality of the sexes. The women’s movement particularly, in US is viewed as occurred in “Waves” like First Wave, second wave and third wave. First wave basically integrates the struggle to achieve basic political rights during the period from the mid-19th century until the passage of the Nineteenth Amendment in 1920. Likewise, Feminism waned between the two world wars, to be "revived" in the late 1960's and early 1970's as "Second Wave" feminism and more recent transformations of feminism have resulted in a "Third Wave".
In this light, it is important to look upon dimension of feminism such as political, social and culture. Generally, feminism is depicted as the greatest and most decisive social revolution which do not break out, rather takes place. Likewise, feminism is also theories and moral philosophies concerned with gender inequalities and discrimination against women described as an ideology focusing on equality of the sexes. Some have argued that gendered and sexed identities, such as "man" and "woman" are social constructs. Feminist activists have campaigned for women's legal rights (rights of contract, property rights, voting rights); for women's right to bodily integrity and autonomy, for abortion rights, and for reproductive rights (including access to contraception and quality prenatal care); for protection of women and girls from domestic violence, sexual harassment and rape; for workplace rights, including maternity leave and equal pay; against misogyny; and against other forms of gender-specific discrimination against women.
On the basis of things mentioned above, the major feminist issues can be traced as:
i) Dominance, patriarchy and women’s sense of justice
ii) Social or Gender equality
iii) Definition and organization of sexuality from women’s perspective.
iv) Right of Entitlement and Reproduction
v) Humanistic society without bondage of marriage, family and gender
The issues and core concerns of every feminist are same but the approaches are diverse. Therefore, there comes the classification of feminism such as:
a) Cultural feminism
b) Liberal feminism
c) Radical feminism
d) Post Modernism feminism
Be it any kind of feminism, in general agrees on gender difference, gender inequality and gender oppression.
In simplest form, feminist jurisprudence can be described as the study of the construction and workings of the law from perspectives which foreground the implications of the law for women and women’s lives. It seeks to analyze and redress more traditional legal theory and practice. The basic idea is that the law which does not acknowledge or respond to the needs of women, must be changed.
The origins of feminist jurisprudence is explained in a number of ways in which one explanations sees it as an off-shoot of the critical legal studies movement and other sees it as necessarily a development from the women's movement more generally. Feminist jurisprudence is a house with many rooms; in this it reflects the different movements in feminist thought and the basic genesis suggests that the society, and necessarily legal order, is patriarchal.
The inquiry of feminist Jurisprudence as suggested by Heather Wishik incorporates following seven questions:
1. What have been and what are not all women's experiences of the law "life situation" addressed by the doctrine, process or area of law under examination?
2. What assumptions, descriptions, assertions and/or definitions of experience - male, female or ostensibly gender neutral- does the law make in this area?
3. What is the area of mismatch, distortion or denial created by the differences between women's life experiences and the law's assumptions or imposed structures?
4. What patriarchal interests are served by the mismatch?
5. What reforms have been proposed in this area of law or women's life situation? How will these reform proposals, if adopted, affect women both practically and ideologically?
6. In an ideal world, what would this women's life situation look like, and what relationship, if any, would the law have to this future like situation?
7. How do we get there from here?
Asking questions has huge significance in feminist jurisprudence as in the course of feminist legal methods, Bartlett emphasizes three things: asking the women question, feminist practical reasoning and consciousness raising.
Feminism is more general and feminist jurisprudence is more specific. Literally, feminism is associated with much older political movement for equal rights and justice for women. The political movement began and continues to be conducted within the framework of the rules of liberal society. Feminist jurisprudence, on the contrary, finds liberal legal theory and methods of reasoning to be largely responsible for the oppressed condition of women. Therefore, this brand of feminist jurisprudence belongs to the genre of radical anti-liberalism. One point noteworthy to be mentioned here is that discrimination, ill-treatment, oppression are unlawful in liberal societies. Both feminism and feminist jurisprudence are aware of it. Feminism is more focused on the atrocities that women endure in illiberal as well as so-called liberal societies and feminist jurisprudence emphasizes on the condition of women in such societies under liberal laws.
d) Popular Debates
Feminist jurisprudence is deeply rooted in two types of debate: reformist/radical debate or as the sameness/difference debate.
Regarding reformist/radical debate, reformist feminists argue that the liberal tradition offers much that can be shaped to fit feminist hands and should be retained for all that it offers whereas radical feminists see that the traditional system as either bankrupt or so problematic and they want to change the whole set up in order to have a fresh start. More specifically, they forward their arguments that liberal legal concepts, categories and processes must be rejected, and new ones put in place which can be free from the biases of the current system. Thus, reformists don't have opinion of abandoning the existing system whereas radical feminists have so.
Within the sameness/difference debate, the central concern for feminists is to understand the role of difference and how women's needs must be figured before the law. Referring to Wendy Williams, a liberal feminist, there are two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual difference. She favoured the former since difference always means women's difference and this provides the basis for better treatment to them in comparison to men whereas an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably. It is a tussle "We are same" v. "We are different."
In this light, the rational course between equality and equitability should be pursued which may be best described as the developed percept of the traditionally once abandoned "separate but equals" and "equals but separate" but without resulting grave discrimination to any one of sexes, specially, women themselves.
(P.S. The paper was furnished with citations wherever cited and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
'Women' as a principal subject in feminism and feminist jurisprudence is hitting the public sphere nationally and internationally. Feminism as 'the theory of the political, economic, and social equality of the sexes' and at the same time, 'organized activity on behalf of women's rights and interests' and feminist jurisprudence as 'the study of the construction and workings of the law from perspectives which foreground the implications of the law for women and women’s lives' are shaping the new notion of 'women.' The traditional conception of 'women' has almost obsolete now and the new notion based on the human dignity is recognition in more profound way, in legal instruments at the best, if not in practice at the full extent.
The term ‘feminism’ has many dimensions and different meaning associated thereto which are equally contested. For instance, some writers see feminism synonymous to historically specific political movement in the US and Europe whereas other writers use it to refer to the belief that there are injustices against women. No doubt, "feminism" has close connection with women's activism from the late 19th century to the present and there is discretion how one should view it- as a separate realm of thought or a product of political, social, cultural movements.
Historically, in the mid-1800s the term 'feminism' was used to refer to "the qualities of females" and aftermath of the First International Women's Conference in Paris in 1892,it was used regularly in English for a belief in and advocacy of equal rights for women based on the idea of the equality of the sexes. The women’s movement particularly, in US is viewed as occurred in “Waves” like First Wave, second wave and third wave. First wave basically integrates the struggle to achieve basic political rights during the period from the mid-19th century until the passage of the Nineteenth Amendment in 1920. Likewise, Feminism waned between the two world wars, to be "revived" in the late 1960's and early 1970's as "Second Wave" feminism and more recent transformations of feminism have resulted in a "Third Wave".
In this light, it is important to look upon dimension of feminism such as political, social and culture. Generally, feminism is depicted as the greatest and most decisive social revolution which do not break out, rather takes place. Likewise, feminism is also theories and moral philosophies concerned with gender inequalities and discrimination against women described as an ideology focusing on equality of the sexes. Some have argued that gendered and sexed identities, such as "man" and "woman" are social constructs. Feminist activists have campaigned for women's legal rights (rights of contract, property rights, voting rights); for women's right to bodily integrity and autonomy, for abortion rights, and for reproductive rights (including access to contraception and quality prenatal care); for protection of women and girls from domestic violence, sexual harassment and rape; for workplace rights, including maternity leave and equal pay; against misogyny; and against other forms of gender-specific discrimination against women.
On the basis of things mentioned above, the major feminist issues can be traced as:
i) Dominance, patriarchy and women’s sense of justice
ii) Social or Gender equality
iii) Definition and organization of sexuality from women’s perspective.
iv) Right of Entitlement and Reproduction
v) Humanistic society without bondage of marriage, family and gender
The issues and core concerns of every feminist are same but the approaches are diverse. Therefore, there comes the classification of feminism such as:
a) Cultural feminism
b) Liberal feminism
c) Radical feminism
d) Post Modernism feminism
Be it any kind of feminism, in general agrees on gender difference, gender inequality and gender oppression.
In simplest form, feminist jurisprudence can be described as the study of the construction and workings of the law from perspectives which foreground the implications of the law for women and women’s lives. It seeks to analyze and redress more traditional legal theory and practice. The basic idea is that the law which does not acknowledge or respond to the needs of women, must be changed.
The origins of feminist jurisprudence is explained in a number of ways in which one explanations sees it as an off-shoot of the critical legal studies movement and other sees it as necessarily a development from the women's movement more generally. Feminist jurisprudence is a house with many rooms; in this it reflects the different movements in feminist thought and the basic genesis suggests that the society, and necessarily legal order, is patriarchal.
The inquiry of feminist Jurisprudence as suggested by Heather Wishik incorporates following seven questions:
1. What have been and what are not all women's experiences of the law "life situation" addressed by the doctrine, process or area of law under examination?
2. What assumptions, descriptions, assertions and/or definitions of experience - male, female or ostensibly gender neutral- does the law make in this area?
3. What is the area of mismatch, distortion or denial created by the differences between women's life experiences and the law's assumptions or imposed structures?
4. What patriarchal interests are served by the mismatch?
5. What reforms have been proposed in this area of law or women's life situation? How will these reform proposals, if adopted, affect women both practically and ideologically?
6. In an ideal world, what would this women's life situation look like, and what relationship, if any, would the law have to this future like situation?
7. How do we get there from here?
Asking questions has huge significance in feminist jurisprudence as in the course of feminist legal methods, Bartlett emphasizes three things: asking the women question, feminist practical reasoning and consciousness raising.
Feminism is more general and feminist jurisprudence is more specific. Literally, feminism is associated with much older political movement for equal rights and justice for women. The political movement began and continues to be conducted within the framework of the rules of liberal society. Feminist jurisprudence, on the contrary, finds liberal legal theory and methods of reasoning to be largely responsible for the oppressed condition of women. Therefore, this brand of feminist jurisprudence belongs to the genre of radical anti-liberalism. One point noteworthy to be mentioned here is that discrimination, ill-treatment, oppression are unlawful in liberal societies. Both feminism and feminist jurisprudence are aware of it. Feminism is more focused on the atrocities that women endure in illiberal as well as so-called liberal societies and feminist jurisprudence emphasizes on the condition of women in such societies under liberal laws.
d) Popular Debates
Feminist jurisprudence is deeply rooted in two types of debate: reformist/radical debate or as the sameness/difference debate.
Regarding reformist/radical debate, reformist feminists argue that the liberal tradition offers much that can be shaped to fit feminist hands and should be retained for all that it offers whereas radical feminists see that the traditional system as either bankrupt or so problematic and they want to change the whole set up in order to have a fresh start. More specifically, they forward their arguments that liberal legal concepts, categories and processes must be rejected, and new ones put in place which can be free from the biases of the current system. Thus, reformists don't have opinion of abandoning the existing system whereas radical feminists have so.
Within the sameness/difference debate, the central concern for feminists is to understand the role of difference and how women's needs must be figured before the law. Referring to Wendy Williams, a liberal feminist, there are two choices: either equality on the basis of similarities between the sexes or special treatment on the basis of sexual difference. She favoured the former since difference always means women's difference and this provides the basis for better treatment to them in comparison to men whereas an equal treatment approach only benefits women who meet male norms and not those who engage in female activities, childbearing and rearing most notably. It is a tussle "We are same" v. "We are different."
In this light, the rational course between equality and equitability should be pursued which may be best described as the developed percept of the traditionally once abandoned "separate but equals" and "equals but separate" but without resulting grave discrimination to any one of sexes, specially, women themselves.
(P.S. The paper was furnished with citations wherever cited and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
Reasonable Man Vs. Reasonable Women: Debate and Discussion
'Women', one of the most frequently used term in the public discussions but hardly understood the way it should be understood. At the same time, 'women', performing a various roles in the private sphere of life as mothers, daughters, sisters, wives, beloved, and friends, are never a complete whole but dependent in the relationship with some other factors whether be it father's support or husband's benediction. It is, in most of time, a forgotten fact that women are female humans and should be treated as upto the minimum level of human dignity.
The first simple query related to the status of women revolves around the issue whether women are the subject or the object in relation to law and society. Absolutely, on the ground of being human, women are supposed to be the subject of law but the practice, to be precise, the male culture of law treats or prefers to treat women as objects.
The concept of reasonable man was created for justicing convenience and judges, attempting to unravel the mysteries of human conduct, intent and motive, have for years turned to the reasonable man for guidance. The phrase ‘reasonable women’ was never articulated then. Therefore, there should be the concept to reasonable women taken into consideration for justicing convenience and ‘remedying the wrong done to women.’
(Synopsis of the workshop held at Y-eelum, Chakupat on 30th April 2011)
The first simple query related to the status of women revolves around the issue whether women are the subject or the object in relation to law and society. Absolutely, on the ground of being human, women are supposed to be the subject of law but the practice, to be precise, the male culture of law treats or prefers to treat women as objects.
The concept of reasonable man was created for justicing convenience and judges, attempting to unravel the mysteries of human conduct, intent and motive, have for years turned to the reasonable man for guidance. The phrase ‘reasonable women’ was never articulated then. Therefore, there should be the concept to reasonable women taken into consideration for justicing convenience and ‘remedying the wrong done to women.’
(Synopsis of the workshop held at Y-eelum, Chakupat on 30th April 2011)
Declaration of the Rights of Woman and the Female Citizen 1791
(The Historical Document formulated by Olympe de Gouges in response to Declaration of the Rights of Man and of Citizens 1789 adopted by the National Assembly of France- aimed to expose the failure of French Revolution to ensure gender equality.)
Declaration of the Rights of Woman and the Female Citizen 1791
For the National Assemby to decree in its last sessions, or in those of the next legislature:
Preamble
Mothers, daughters, sisters [and] representatives of the nation demand to be constituted into a national assembly. Believing that ignorance, omission, or scorn for the rights of woman are the only causes of public misfortunes and of the corruption of governments, [the women] have resolved to set forth a solemn declaration the natural, inalienable, and sacred rights of woman in order that this declaration, constantly exposed before all members of the society, will ceaselessly remind them of their rights and duties; in order that the authoritative acts f women and teh athoritative acts of men may be at any moment compared with and respectful of the purpose of all political institutions; and in order that citizens' demands, henceforth based on simple and incontestable principles, will always support the constitution, good morals, and the happiness of all.
Consequently, the sex that is as superior in beauty as it is in courage during the sufferings of maternity recognizes and declares in the presence and under the auspices of the Supreme Being, the following Rights of WOman and of Female Citizens.
Article I
Woman is born free and lives equal to man in her rights. Social distinctions can be based only on the common utility.
Article II
The purpose of any political association is the conservation of the natural and impresciptible rights of woman and man; these rights are liberty property, security, and especially resistance to oppression.
Article III
The principle of all sovereignty rests essentially with the nation, which is nothing but the union of woman and man; no body and no individual can exercise any authority which does not come expressly from it (the nation).
Article IV
Liberty and justice consist of restoring all that belongs to others; thus, the only limits on the exercise of the natural rights of woman are perpetual male tyranny; these limits are to be reformed by the laws of nature and reason.
Article V
Laws of nature and reason proscibe all acts harmful to society; everything which is not prohibited by these wise and divine laws cannot be prevented, and no one can be constrained to do what they do not command.
Article VI
The law must be the expression of the general will; all female and male citizens must contribute either personally or through their representatives to its formation; it must be the same for all: male and female citizens, being equal in the eyes of the law, must be equally admitted to all honors, positions, and public employment according to their capacity and without other distinctions besides those of their virtues and talents.
Article VII
No woman is an exception; she is accused, arrested, and detained in cases determined by law. Women, like men, obey this rigorous law.
Article VIII
The law must establish only those penalties that are strictly and obviously necessary...
Article IX
Once any woman is declared guilty, complete rigor is exercised by law.
Article X
No one is to be disquieted for his very basic opinions; woman has the right to mount the scaffold; she must equally have the right to mount the rostrum, provided that her demonstrations do not disturb the legally established public order.
Article XI
The free communication of thoughts and opinions is one of the most precious rights of woman, since that liberty assures recognition of children by their fathers. Any female citizen thus may say freely, I am the mother of a child which belongs to you, without being forced by a barbarous prejudice to hide the truth; (an exception may be made) to respond to the abuse of this liberty in cases determined by law.
Article XII
The gaurantee of the rights of woman and the female citizen implies a major benefit; this guarantee must be instituted for the advantage of all, and not for the particular benefit of those to whom it is entrusted.
Article XIII
For the support of the public force and the expenses of administration, the contributions of woman and man are equal; she shares all the duties and all the painful tasks; therefore, whe must have the same share in the distribution of positions, employment, offices, honors, and jobs.
Article XIV
Female and male citizens have the right to verify, either by themselves of through their representatives, the necessity of the public contribution. This can only apply to women if they are granted an equal share, not only of wealth, but also of public administration, and in the determination of the proportion, the base, the collection, and the duration of the tax.
Article XV
The collectivity of women, joined for tax purposes to the aggregate of men, has the right to demand an accounting of his administration from any public agent.
Article XVI
No society has a constitution without the guarantee of rights and the separation of powers; the constitution is null if the majority of individuals comprising the nation have not cooperated in drafting it.
Article XVII
Property belongs to both sexes whether united or separate; for each it is an inviolable and sacred right' no one can be deprived of it, since it is the true patrimony of natire, unless the legally determined public need obviously dictates it, and then only with a just and prior indemnity.
Declaration of the Rights of Woman and the Female Citizen 1791
For the National Assemby to decree in its last sessions, or in those of the next legislature:
Preamble
Mothers, daughters, sisters [and] representatives of the nation demand to be constituted into a national assembly. Believing that ignorance, omission, or scorn for the rights of woman are the only causes of public misfortunes and of the corruption of governments, [the women] have resolved to set forth a solemn declaration the natural, inalienable, and sacred rights of woman in order that this declaration, constantly exposed before all members of the society, will ceaselessly remind them of their rights and duties; in order that the authoritative acts f women and teh athoritative acts of men may be at any moment compared with and respectful of the purpose of all political institutions; and in order that citizens' demands, henceforth based on simple and incontestable principles, will always support the constitution, good morals, and the happiness of all.
Consequently, the sex that is as superior in beauty as it is in courage during the sufferings of maternity recognizes and declares in the presence and under the auspices of the Supreme Being, the following Rights of WOman and of Female Citizens.
Article I
Woman is born free and lives equal to man in her rights. Social distinctions can be based only on the common utility.
Article II
The purpose of any political association is the conservation of the natural and impresciptible rights of woman and man; these rights are liberty property, security, and especially resistance to oppression.
Article III
The principle of all sovereignty rests essentially with the nation, which is nothing but the union of woman and man; no body and no individual can exercise any authority which does not come expressly from it (the nation).
Article IV
Liberty and justice consist of restoring all that belongs to others; thus, the only limits on the exercise of the natural rights of woman are perpetual male tyranny; these limits are to be reformed by the laws of nature and reason.
Article V
Laws of nature and reason proscibe all acts harmful to society; everything which is not prohibited by these wise and divine laws cannot be prevented, and no one can be constrained to do what they do not command.
Article VI
The law must be the expression of the general will; all female and male citizens must contribute either personally or through their representatives to its formation; it must be the same for all: male and female citizens, being equal in the eyes of the law, must be equally admitted to all honors, positions, and public employment according to their capacity and without other distinctions besides those of their virtues and talents.
Article VII
No woman is an exception; she is accused, arrested, and detained in cases determined by law. Women, like men, obey this rigorous law.
Article VIII
The law must establish only those penalties that are strictly and obviously necessary...
Article IX
Once any woman is declared guilty, complete rigor is exercised by law.
Article X
No one is to be disquieted for his very basic opinions; woman has the right to mount the scaffold; she must equally have the right to mount the rostrum, provided that her demonstrations do not disturb the legally established public order.
Article XI
The free communication of thoughts and opinions is one of the most precious rights of woman, since that liberty assures recognition of children by their fathers. Any female citizen thus may say freely, I am the mother of a child which belongs to you, without being forced by a barbarous prejudice to hide the truth; (an exception may be made) to respond to the abuse of this liberty in cases determined by law.
Article XII
The gaurantee of the rights of woman and the female citizen implies a major benefit; this guarantee must be instituted for the advantage of all, and not for the particular benefit of those to whom it is entrusted.
Article XIII
For the support of the public force and the expenses of administration, the contributions of woman and man are equal; she shares all the duties and all the painful tasks; therefore, whe must have the same share in the distribution of positions, employment, offices, honors, and jobs.
Article XIV
Female and male citizens have the right to verify, either by themselves of through their representatives, the necessity of the public contribution. This can only apply to women if they are granted an equal share, not only of wealth, but also of public administration, and in the determination of the proportion, the base, the collection, and the duration of the tax.
Article XV
The collectivity of women, joined for tax purposes to the aggregate of men, has the right to demand an accounting of his administration from any public agent.
Article XVI
No society has a constitution without the guarantee of rights and the separation of powers; the constitution is null if the majority of individuals comprising the nation have not cooperated in drafting it.
Article XVII
Property belongs to both sexes whether united or separate; for each it is an inviolable and sacred right' no one can be deprived of it, since it is the true patrimony of natire, unless the legally determined public need obviously dictates it, and then only with a just and prior indemnity.
Thursday, June 16, 2011
Women's Human Right: An Instrumental Perspective
(Excerpts of the paper presented in Nepal Law Campus @ 2011 for class discussion purpose.)
Women's human rights are described as entitlements and freedoms claimed for women and girls of all ages in the society so that they could live a dignified life as a human being in the society.
The term "women's human rights" is seen as the product of an international movement to improve the status of women. In the 1980s and 1990s, women's movements around the world formed networks and coalitions to give greater visibility both to the problems that women face every day and to the centrality of women's experiences in economic, social, political and environmental issues. In the evolution of what is becoming a global women's movement, the term "women's human rights" has served as a locus for praxis, that is, for the development of political strategies shaped by the interaction between analytical insights and concrete political practices. Further, the critical tools, the concerted activism, and the broad-based international networks that have grown up around movements for women's human rights have become a vehicle for women to develop the political skills necessary for the twenty-first century.
The idea of women's human rights declares simply that as human beings women have human rights. The incorporation of women's perspectives and lives into human rights standards and practice forces recognition of the dismal failure of countries worldwide to accord women the human dignity and respect that they deserve-simply as human beings. Moreover, a woman's human rights framework provides a concrete ground to define, analyze, and articulate their experiences of violence, degradation, and marginality along with a positive hope for change.
At the same time, the universality of human rights means that human rights apply to every single person by virtue of their humanity; this also means that human rights apply to everyone equally, for everyone is equal in simply being human. In many ways, this universality theme may seem patently obvious, but its egalitarian premise has a radical edge. By invoking the universality of human rights, women have demanded that their very humanity be acknowledged. That acknowledgement and the concomitant recognition of women as bearers of human rights-mandates the incorporation of women and gender perspectives into all of the ideas and institutions that are already committed to the promotion and protection of human rights. The idea that human rights are universal also challenges the contention that the human rights of women can be limited by culturally specific definitions of what count as human rights and of women's role in society. The idea of human rights as inalienable means that it is impossible for anyone to abdicate her human rights, even if she wanted to, since every person is accorded those rights by virtue of being human.
. . .
Timeline of international women’s rights agreements
The history of women’s human rights, at the global level, can be presented as below:
1946 – the UN Commission on the Status of Women established with mandate to set standards of women’s rights, encourage governments to bring their laws into line with international conventions and to encourage global awareness of women’s rights
1948 – adoption of Universal Declaration of Human Rights, which forms the basis for action for promoting equal rights and freedoms
1975 – first International Women’s Year, first global United Nations’ Women’s Conference held in Mexico City and beginning of the UN Decade for Women
1979 – adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the only international treaty on women’s human rights
1993 – adoption of the Declaration on the Elimination of Violence Against Women; women successfully promote the message that women’s rights are human rights at the World Conference on Human Rights in Vienna
1994 – women secure another major step forward for women’s and girl’s right to control their own lives and bodies at International Conference on Population & Development in Cairo
1995 – women mobilise again at the World Summit for Social Development in Copenhagen to ensure that the problems they face are central to the global agenda; women achieve massive success both in terms of results and turn-out, at the Beijing Fourth World Conference on Women, resulting in global Platform for Action for women’s equality, empowerment and justice
2000 – UN Security Council Resolution 1325 on Women, Peace and Security adopted
2005 – women defend their gains at the ten year review of implementation of the Beijing Platform for Action and successfully defeat a proposal led by the U.S government for an anti-abortion amendment to the declaration
2008 – UN Security Council Resolution 1820 adopted, recognizing that sexual violence can be categorized as a war crime, crime against humanity, and act of genocide and demanding protection and prevention measures from parties of armed conflict; protection from violence in refugee and displaced person camps; and affirming the need for women’s full participation in peace-building processes.
2009 – the UN commits to completely overhauling the systems and structures through which it supports women’s rights
2010 - 15-year review of the Beijing Platform for Action
2011 – UN Women, the new UN agency focusing on women and bringing together the previously fragmented ‘gender machinery’ starts work on 1st January.
Conclusion:
It is observed that during the whole of the nineteenth century, women had no political rights though there had been some movement in other areas to advance the rights of women. Gradually, laws were passed in which women could divorce husbands, women were allowed to keep money they had earned and finally, women got an equal footing with men in political, economic, social and cultural life. However, the gap between governments’ commitments and the reality of women’s lives, particularly those of women in the South, has not reduced and, if anything has widened in some parts of the world. This is largely due to the backlash against women’s human rights that is taking place on every continent and in many different forms today, including:
• religious or cultural fundamentalisms of different kinds
• power of ultra-conservative forces within governments and their influence on foreign and domestic policies
• backlashes in the media, judiciary, public opinion
• an increase in violence, conflict and war
The fundamental principles of human rights that accord to each and every person the entitlement to human dignity give women a vocabulary for describing both violations and impediments to the exercise of their human rights. The large body of international covenants, agreements and commitments about human rights gives women political leverage and a tenable point of reference. And finally, the idea of women's human rights enables women to define and articulate the specificity of the experiences in their lives at the same time that it provides a vocabulary for women to share the experiences of other women around the world and work collaboratively for change. Now, the world is opting to look a new dimension on women's human rights through the work of UN Women.
Women's human rights are described as entitlements and freedoms claimed for women and girls of all ages in the society so that they could live a dignified life as a human being in the society.
The term "women's human rights" is seen as the product of an international movement to improve the status of women. In the 1980s and 1990s, women's movements around the world formed networks and coalitions to give greater visibility both to the problems that women face every day and to the centrality of women's experiences in economic, social, political and environmental issues. In the evolution of what is becoming a global women's movement, the term "women's human rights" has served as a locus for praxis, that is, for the development of political strategies shaped by the interaction between analytical insights and concrete political practices. Further, the critical tools, the concerted activism, and the broad-based international networks that have grown up around movements for women's human rights have become a vehicle for women to develop the political skills necessary for the twenty-first century.
The idea of women's human rights declares simply that as human beings women have human rights. The incorporation of women's perspectives and lives into human rights standards and practice forces recognition of the dismal failure of countries worldwide to accord women the human dignity and respect that they deserve-simply as human beings. Moreover, a woman's human rights framework provides a concrete ground to define, analyze, and articulate their experiences of violence, degradation, and marginality along with a positive hope for change.
At the same time, the universality of human rights means that human rights apply to every single person by virtue of their humanity; this also means that human rights apply to everyone equally, for everyone is equal in simply being human. In many ways, this universality theme may seem patently obvious, but its egalitarian premise has a radical edge. By invoking the universality of human rights, women have demanded that their very humanity be acknowledged. That acknowledgement and the concomitant recognition of women as bearers of human rights-mandates the incorporation of women and gender perspectives into all of the ideas and institutions that are already committed to the promotion and protection of human rights. The idea that human rights are universal also challenges the contention that the human rights of women can be limited by culturally specific definitions of what count as human rights and of women's role in society. The idea of human rights as inalienable means that it is impossible for anyone to abdicate her human rights, even if she wanted to, since every person is accorded those rights by virtue of being human.
. . .
Timeline of international women’s rights agreements
The history of women’s human rights, at the global level, can be presented as below:
1946 – the UN Commission on the Status of Women established with mandate to set standards of women’s rights, encourage governments to bring their laws into line with international conventions and to encourage global awareness of women’s rights
1948 – adoption of Universal Declaration of Human Rights, which forms the basis for action for promoting equal rights and freedoms
1975 – first International Women’s Year, first global United Nations’ Women’s Conference held in Mexico City and beginning of the UN Decade for Women
1979 – adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the only international treaty on women’s human rights
1993 – adoption of the Declaration on the Elimination of Violence Against Women; women successfully promote the message that women’s rights are human rights at the World Conference on Human Rights in Vienna
1994 – women secure another major step forward for women’s and girl’s right to control their own lives and bodies at International Conference on Population & Development in Cairo
1995 – women mobilise again at the World Summit for Social Development in Copenhagen to ensure that the problems they face are central to the global agenda; women achieve massive success both in terms of results and turn-out, at the Beijing Fourth World Conference on Women, resulting in global Platform for Action for women’s equality, empowerment and justice
2000 – UN Security Council Resolution 1325 on Women, Peace and Security adopted
2005 – women defend their gains at the ten year review of implementation of the Beijing Platform for Action and successfully defeat a proposal led by the U.S government for an anti-abortion amendment to the declaration
2008 – UN Security Council Resolution 1820 adopted, recognizing that sexual violence can be categorized as a war crime, crime against humanity, and act of genocide and demanding protection and prevention measures from parties of armed conflict; protection from violence in refugee and displaced person camps; and affirming the need for women’s full participation in peace-building processes.
2009 – the UN commits to completely overhauling the systems and structures through which it supports women’s rights
2010 - 15-year review of the Beijing Platform for Action
2011 – UN Women, the new UN agency focusing on women and bringing together the previously fragmented ‘gender machinery’ starts work on 1st January.
Conclusion:
It is observed that during the whole of the nineteenth century, women had no political rights though there had been some movement in other areas to advance the rights of women. Gradually, laws were passed in which women could divorce husbands, women were allowed to keep money they had earned and finally, women got an equal footing with men in political, economic, social and cultural life. However, the gap between governments’ commitments and the reality of women’s lives, particularly those of women in the South, has not reduced and, if anything has widened in some parts of the world. This is largely due to the backlash against women’s human rights that is taking place on every continent and in many different forms today, including:
• religious or cultural fundamentalisms of different kinds
• power of ultra-conservative forces within governments and their influence on foreign and domestic policies
• backlashes in the media, judiciary, public opinion
• an increase in violence, conflict and war
The fundamental principles of human rights that accord to each and every person the entitlement to human dignity give women a vocabulary for describing both violations and impediments to the exercise of their human rights. The large body of international covenants, agreements and commitments about human rights gives women political leverage and a tenable point of reference. And finally, the idea of women's human rights enables women to define and articulate the specificity of the experiences in their lives at the same time that it provides a vocabulary for women to share the experiences of other women around the world and work collaboratively for change. Now, the world is opting to look a new dimension on women's human rights through the work of UN Women.
Women and Armed Conflict
(This paper was presented in LL.M. Class, Nepal Law Campus @ 2011 )
War and conflict affect people and the whole community including women and girls at the time of war and conflict and aftermath as well whether be it in Former Yugoslavia, Rwanda, Cambodia, Timor, Afghanistan or Nepal. However, it is obvious that women and girls are particularly affected because of their status in society and their sex. In many cases, rape is used as a tactic of war. Likewise, murder, sexual slavery, forced pregnancy and forced sterilization are some other forms of violence that are used against women and girls during the armed conflicts. It is estimated that close to 90 per cent of current war casualties are civilians, the majority of whom are women and children, compared to a century ago when 90 per cent of those who lost their lives were military personnel.
In this light, the following facts show the grave reality of war and armed conflict in the world:
1. During the conflict, sexual violence against women is employed as a tactic of war. For example, up to 500,000 women were raped, many at gunpoint, in Rwanda in 1994.
2. Women are often raped to humiliate the men to whom they are related (the men are often forced to witness the assault).
3. In societies where ethnicity is inherited through the male line, “enemy” women are raped and forced to bear children.
4. Women are kidnapped and used as sexual slaves to service troops, as well as to cook for them and carry their loads from camp to camp. They are purposely infected with HIV.
On the other hand, women should not be viewed only as victims of war because their role is diverse during armed conflict such as women warriors, breadwinners, peace negotiators and community leaders. Therefore, the degree of affect of and involvement in the arm conflict is different to different categories of women and girls.
WOMEN AND ARMED CONFLICT: INVOLVEMENT AND CONSEQUENCES
During armed conflict, women can be members of the civilian populations and women can be members of warring parties as women combatants, organizers, planner, leaders and managers of the armed conflicts. Similarly, they can act as peace negotiators in the grass root level.
a) Civilians and Victims: As members of the civilian populations, women and girls- like men and boys - are subjected to innumerable acts of violence during situations of armed conflict. They suffer both direct and indirect effects of armed conflicts. They bear great responsibility of being breadwinner and head of family as during armed conflict, the men members of family join or flee the fighting or die or go missing. Likewise, they are all too often harassed, intimidated and attacked in their homes, while moving around their village and its environs and when passing checkpoints. This category of women later becomes widows, refugees and internally displaced persons in many instances.
b) Women Warriors/Combatants: In armed conflict, it seems that women are joining the armed forces, voluntarily and involuntarily, performing both support and combatant roles including "suicide bombers". For instance, in the United States military, "overall, 14 percent of active duty personnel are women" and of the US forces who served in the 1990-1991 Gulf War, 40,000 were women; up to a third of the fighting forces of the Liberation Tigers of Tamil Eelam (LTTE) involved in the civil war in Sri Lanka are women. At the same time, many women are supporting the hostilities through providing their men folk moral support needed to wage war.
c) Peace negotiators: During armed conflict and post armed conflict situation, women play a role of peace negotiators and help in peace building processes. They perform a constructive role in handling war widows, victims and families gravely affected. In many cases, emergence of leadership is also seen. However, they are always made a target by either of warring parties on the charge of being spy and informant to the adverse party.
LEGAL FRAMEWORK ON WOMEN AND ARMED CONFLICT:
Regarding Women and Armed Conflict, Geneva Conventions, Security Council Resolutions and Beijing Platform for Action 1995 are crucial. Generally, humanitarian laws treaties recognize the need to give women special protection according to their specific needs. The Conventions and Protocols protect women (and men) as members of the civilian populations not taking part in the armed conflict and women (and men) as members of members of the armed forces are also protected when captured by the enemy.
In case of women not taking part into the hostilities and are qualified as civilians, they are protected by Article 3 common to the four Geneva Conventions. Particularly, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 1949, and the Additional Protocols of 1977 provide that women shall especially be protected against any attack on their honour, in particular against humiliating and degrading treatment, rape, enforced prostitution or any form of indecent assault. Likewise, Additional Protocol II relative to the Protection of Victims on Non International Armed Conflicts stipulates in general terms that "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" are forbidden. In pursuant to Protocol II, in case women are arrested, detained or interned in relation to the hostilities, "except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women". Moreover, at any case, women as civilian population shall not be the object of attack.
For women as taking part in hostilities, the Third Geneva Convention relative to the Treatment of Prisoners of War that is applicable to the international armed conflicts stipulates that prisoners of war shall be treated humanely at all times. Beside this general protection, in accordance to Article 14, paragraph 2, women are also afforded special protection that "women shall be treated with all the regard due to their sex." However, women (and men) who take an active part in the hostilities in a non international armed conflict do not have prisoner of war status when they fall into enemy hands but they should be treated as per provisions of Additional Protocol II. Women have a right to special treatment there under such as separate dormitories for men and women and for separate sanitary conveniences.
In 1995, Beijing Declaration and Platform for Action forwarded 12 points programmes and in March 2010, the Commission on the Status of Women will undertake a fifteen-year review of the implementation of the Beijing Declaration and Platform for Action and the outcomes of the twenty-third special session of the General Assembly. Among those 12 points, women and armed conflict is also one thrust area whereas other areas included are: Women and Poverty, Education and Training for Women, Women and Health, Violence against Women, Women and Economy, Women in Power and Decision making, Institutional Mechanisms for Advancement of Women, Human Rights of Women, Women and Media, Women and Environment and The Girl Child.
In October 2000, the UN Security Council passed Resolution 1325 on Women, Peace and Security, which urges for women’s genuine and equitable participation in peace negotiations in war zones and the aftermath and recently in 2008, resolution 1820 was adopted in order to halt acts of sexual violence against civilians in conflict zones.
The core of Resolution 1325 lies on ensure increased representation of women at all decision-making levels in national, regional and international institutions and mechanisms for the prevention, management, and resolution of conflict by member states along with having drawn the attention of all actors involved, when negotiating and implementing peace agreements, to adopt a gender perspective, including, inter alia:
(a) The special needs of women and girls during repatriation and resettlement and for rehabilitation, reintegration and post-conflict reconstruction;
(b) Measures that support local women’s peace initiatives and indigenous processes for conflict resolution, and that involve women in all of the implementation mechanisms of the peace agreements;
(c) Measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary.
Another focus of it includes call for all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.
Similarly, Resolution 1820 demands the immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect and focuses on the note that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide along with giving strong stress on the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and placing the responsibility to Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, in order to end impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation. Likewise, resolutions 1882 (children and armed conflict), 1888 and 1889 (women, peace and security) should be given serious consideration in this regard.
WOMEN, ARMED CONFLICT AND PEACE PROCESS: NEPALESE SCENARIO
The Arm conflict wagged by the CPN Maoist took place 1996 and 2006 and Maoist proclaimed it as people's war and fight against feudalism, exclusion, structural inequality, discrimination (caste, class, gender, geographical), abuse of state power, poverty, unemployment and failure of governance in Nepal. The conflict formally came to end with the Comprehensive Peace Accord that was signed by political partied in November 2006.
Point 7.6.1 of Peace Accord reads: "Both sides fully agree to provide special protection to the rights of women and children, to immediately prohibit all types of violence against women and children, including child labour, as well as sexual exploitation and harassment, and not to include or use children who are eighteen years or below. . ."
On the other hand, the question is women who have taken part in the hostilities; can they go back to traditional roles easily? If the answer is big 'No', the reintegration of women back to the society seems to be more problematic. In addition to it, handling war widows, victims and families gravely affected thereby require more serious concerns for institutionalizing durable peace in the society. However, in Nepal, it is expedient to search a common ground for institutionalization of durable Peace, meaningful Involvement of women in all pertinent national issues, women involvement in assisting War Widows, involvement of women in Reintegration of conflict victims and implementation & monitoring of UN Security Council Resolution 1325 and other related resolutions.
CONCLUSION:
In relation to women and armed conflict, the crucial issue is violence against women. Like most violence that occurs in the course of armed conflict, violence against women is a weapon of war, a tool used to achieve military objectives such as ethnic cleansing, spreading political terror, breaking the resistance of a community, rewarding soldiers, intimidation, or to extract information. However, as per international humanitarian law, state and parties to armed conflict must do their utmost to uphold respect for the safety and dignity of women in wartime. It is expedient that the responsibility of improving the plight of women, specially women as civilian population and also not forgetting women as combatants when falls in the enemy hand in times of war must be shared by everyone.
REFERENCES:
1. Charlotte Lindsey, "Women and War- An Overview", (International Humanitarian Law: A Reader for South Asia, L. Maybee and B. Chakka(eds.)), ICRC, New Delhi, 2007, pp. 258-273
2. 'Women and Peace: Socio-legal Perspectives in Nepalese Context', a seminar paper by Rukamanee Maharjan, 26 December 2009, Kathmandu.
3. Women and Conflict, Tool Kit, USAID, 2007
4. Four Geneva Conventions and Optional Protocol II
5. UN Security Council passed Resolution 1325 and 1820
(P.S. The paper was furnished with citations wherever cited and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
War and conflict affect people and the whole community including women and girls at the time of war and conflict and aftermath as well whether be it in Former Yugoslavia, Rwanda, Cambodia, Timor, Afghanistan or Nepal. However, it is obvious that women and girls are particularly affected because of their status in society and their sex. In many cases, rape is used as a tactic of war. Likewise, murder, sexual slavery, forced pregnancy and forced sterilization are some other forms of violence that are used against women and girls during the armed conflicts. It is estimated that close to 90 per cent of current war casualties are civilians, the majority of whom are women and children, compared to a century ago when 90 per cent of those who lost their lives were military personnel.
In this light, the following facts show the grave reality of war and armed conflict in the world:
1. During the conflict, sexual violence against women is employed as a tactic of war. For example, up to 500,000 women were raped, many at gunpoint, in Rwanda in 1994.
2. Women are often raped to humiliate the men to whom they are related (the men are often forced to witness the assault).
3. In societies where ethnicity is inherited through the male line, “enemy” women are raped and forced to bear children.
4. Women are kidnapped and used as sexual slaves to service troops, as well as to cook for them and carry their loads from camp to camp. They are purposely infected with HIV.
On the other hand, women should not be viewed only as victims of war because their role is diverse during armed conflict such as women warriors, breadwinners, peace negotiators and community leaders. Therefore, the degree of affect of and involvement in the arm conflict is different to different categories of women and girls.
WOMEN AND ARMED CONFLICT: INVOLVEMENT AND CONSEQUENCES
During armed conflict, women can be members of the civilian populations and women can be members of warring parties as women combatants, organizers, planner, leaders and managers of the armed conflicts. Similarly, they can act as peace negotiators in the grass root level.
a) Civilians and Victims: As members of the civilian populations, women and girls- like men and boys - are subjected to innumerable acts of violence during situations of armed conflict. They suffer both direct and indirect effects of armed conflicts. They bear great responsibility of being breadwinner and head of family as during armed conflict, the men members of family join or flee the fighting or die or go missing. Likewise, they are all too often harassed, intimidated and attacked in their homes, while moving around their village and its environs and when passing checkpoints. This category of women later becomes widows, refugees and internally displaced persons in many instances.
b) Women Warriors/Combatants: In armed conflict, it seems that women are joining the armed forces, voluntarily and involuntarily, performing both support and combatant roles including "suicide bombers". For instance, in the United States military, "overall, 14 percent of active duty personnel are women" and of the US forces who served in the 1990-1991 Gulf War, 40,000 were women; up to a third of the fighting forces of the Liberation Tigers of Tamil Eelam (LTTE) involved in the civil war in Sri Lanka are women. At the same time, many women are supporting the hostilities through providing their men folk moral support needed to wage war.
c) Peace negotiators: During armed conflict and post armed conflict situation, women play a role of peace negotiators and help in peace building processes. They perform a constructive role in handling war widows, victims and families gravely affected. In many cases, emergence of leadership is also seen. However, they are always made a target by either of warring parties on the charge of being spy and informant to the adverse party.
LEGAL FRAMEWORK ON WOMEN AND ARMED CONFLICT:
Regarding Women and Armed Conflict, Geneva Conventions, Security Council Resolutions and Beijing Platform for Action 1995 are crucial. Generally, humanitarian laws treaties recognize the need to give women special protection according to their specific needs. The Conventions and Protocols protect women (and men) as members of the civilian populations not taking part in the armed conflict and women (and men) as members of members of the armed forces are also protected when captured by the enemy.
In case of women not taking part into the hostilities and are qualified as civilians, they are protected by Article 3 common to the four Geneva Conventions. Particularly, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 1949, and the Additional Protocols of 1977 provide that women shall especially be protected against any attack on their honour, in particular against humiliating and degrading treatment, rape, enforced prostitution or any form of indecent assault. Likewise, Additional Protocol II relative to the Protection of Victims on Non International Armed Conflicts stipulates in general terms that "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" are forbidden. In pursuant to Protocol II, in case women are arrested, detained or interned in relation to the hostilities, "except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women". Moreover, at any case, women as civilian population shall not be the object of attack.
For women as taking part in hostilities, the Third Geneva Convention relative to the Treatment of Prisoners of War that is applicable to the international armed conflicts stipulates that prisoners of war shall be treated humanely at all times. Beside this general protection, in accordance to Article 14, paragraph 2, women are also afforded special protection that "women shall be treated with all the regard due to their sex." However, women (and men) who take an active part in the hostilities in a non international armed conflict do not have prisoner of war status when they fall into enemy hands but they should be treated as per provisions of Additional Protocol II. Women have a right to special treatment there under such as separate dormitories for men and women and for separate sanitary conveniences.
In 1995, Beijing Declaration and Platform for Action forwarded 12 points programmes and in March 2010, the Commission on the Status of Women will undertake a fifteen-year review of the implementation of the Beijing Declaration and Platform for Action and the outcomes of the twenty-third special session of the General Assembly. Among those 12 points, women and armed conflict is also one thrust area whereas other areas included are: Women and Poverty, Education and Training for Women, Women and Health, Violence against Women, Women and Economy, Women in Power and Decision making, Institutional Mechanisms for Advancement of Women, Human Rights of Women, Women and Media, Women and Environment and The Girl Child.
In October 2000, the UN Security Council passed Resolution 1325 on Women, Peace and Security, which urges for women’s genuine and equitable participation in peace negotiations in war zones and the aftermath and recently in 2008, resolution 1820 was adopted in order to halt acts of sexual violence against civilians in conflict zones.
The core of Resolution 1325 lies on ensure increased representation of women at all decision-making levels in national, regional and international institutions and mechanisms for the prevention, management, and resolution of conflict by member states along with having drawn the attention of all actors involved, when negotiating and implementing peace agreements, to adopt a gender perspective, including, inter alia:
(a) The special needs of women and girls during repatriation and resettlement and for rehabilitation, reintegration and post-conflict reconstruction;
(b) Measures that support local women’s peace initiatives and indigenous processes for conflict resolution, and that involve women in all of the implementation mechanisms of the peace agreements;
(c) Measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary.
Another focus of it includes call for all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.
Similarly, Resolution 1820 demands the immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect and focuses on the note that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide along with giving strong stress on the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and placing the responsibility to Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, in order to end impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation. Likewise, resolutions 1882 (children and armed conflict), 1888 and 1889 (women, peace and security) should be given serious consideration in this regard.
WOMEN, ARMED CONFLICT AND PEACE PROCESS: NEPALESE SCENARIO
The Arm conflict wagged by the CPN Maoist took place 1996 and 2006 and Maoist proclaimed it as people's war and fight against feudalism, exclusion, structural inequality, discrimination (caste, class, gender, geographical), abuse of state power, poverty, unemployment and failure of governance in Nepal. The conflict formally came to end with the Comprehensive Peace Accord that was signed by political partied in November 2006.
Point 7.6.1 of Peace Accord reads: "Both sides fully agree to provide special protection to the rights of women and children, to immediately prohibit all types of violence against women and children, including child labour, as well as sexual exploitation and harassment, and not to include or use children who are eighteen years or below. . ."
On the other hand, the question is women who have taken part in the hostilities; can they go back to traditional roles easily? If the answer is big 'No', the reintegration of women back to the society seems to be more problematic. In addition to it, handling war widows, victims and families gravely affected thereby require more serious concerns for institutionalizing durable peace in the society. However, in Nepal, it is expedient to search a common ground for institutionalization of durable Peace, meaningful Involvement of women in all pertinent national issues, women involvement in assisting War Widows, involvement of women in Reintegration of conflict victims and implementation & monitoring of UN Security Council Resolution 1325 and other related resolutions.
CONCLUSION:
In relation to women and armed conflict, the crucial issue is violence against women. Like most violence that occurs in the course of armed conflict, violence against women is a weapon of war, a tool used to achieve military objectives such as ethnic cleansing, spreading political terror, breaking the resistance of a community, rewarding soldiers, intimidation, or to extract information. However, as per international humanitarian law, state and parties to armed conflict must do their utmost to uphold respect for the safety and dignity of women in wartime. It is expedient that the responsibility of improving the plight of women, specially women as civilian population and also not forgetting women as combatants when falls in the enemy hand in times of war must be shared by everyone.
REFERENCES:
1. Charlotte Lindsey, "Women and War- An Overview", (International Humanitarian Law: A Reader for South Asia, L. Maybee and B. Chakka(eds.)), ICRC, New Delhi, 2007, pp. 258-273
2. 'Women and Peace: Socio-legal Perspectives in Nepalese Context', a seminar paper by Rukamanee Maharjan, 26 December 2009, Kathmandu.
3. Women and Conflict, Tool Kit, USAID, 2007
4. Four Geneva Conventions and Optional Protocol II
5. UN Security Council passed Resolution 1325 and 1820
(P.S. The paper was furnished with citations wherever cited and due to technical reason citations are missing in the post. My humble apology in this regard- I m not a plugiarist)
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