(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)
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