JUL 27 - Ever since the draft constitution was endorsed by the Constitutent Assembly (CA), it has drawn the ire of various segments of society. Women rights activists have termed the draft regressive when it comes to citizenship rights and have noted that the document takes a step backwards on ensuring reproductive health rights for women and ensuring their participation in all levels of government. Meera Dhungana —a lawyer who first filed the public interest litigation case against the unequal parental property law in the Supreme Court in 1993, the verdict which led to the 11th amendment to the Muluki Ain—has serious reservations against the draft constitution. She spoke to Dewan Rai and Darshan Karki on why women’s agendas fail to get established, the discriminatory provisions in the draft and what it means for the agenda of inclusion and the role of female lawmakers and politicians in the current state of affairs.
The gains made in women rights seem to be constantly under threat. Why so?
Women participate actively in all movements because they genuinely believe that their agendas will be addressed. But once the heat of the movement dies down there is always an attempt to push back women’s agendas. The top leaders of the major political parties seem to think: now that the women have gone back inside their houses, they will not come out so easily, so their agendas can be sidelined. In their minds, only men are entitled to political rights. The problem is women are easily assured. They should instead always keep vigil against the attempts to curtail their rights.
But then women did consitute 33 percent of the 2008 Constituent Assembly.
At that time, the Jana Aandolan II had just taken place. So in the heat of the moment, the top leaders needed to show that they are progressive. Thereby, there was 33 percent women participation in the CA. Now, as eight years have already passed since the movement they have begun to show their true colours by curtailing women’s rights. This is the politics of deception.
How would you analyse the draft constitution from the perspective of women’s rights?
The preamble of the draft constitution made by the first CA aimed to do away with all forms of injustices created by “a feudal, autocratic, centralised, unitary and patriarchal state mechanism”. The current draft removes the word ‘patriarchal’ denying the role patriarchal norms and values have played in discriminating against women.
Why is it so important to have this term in the preamble itself?
The preamble guides the constitution. So removing the term implies that the political parties have chosen to turn a blind eye to women’s issues.
How do you define patriarchy?
It is all about power-relations. The one who holds the power rules the rest. In the current context, we have a male-dominated society. The household head is always a man because that is what the law says. Therefore, women have to seek their rights from the men. And the fact that women go to live in a man’s house after marriage is also a manifestation of patriarchy. When a woman, alone, goes to live in a man’s house it is his rule that prevails.
What about other provisions in the constitution?
According to the draft constitution, a Nepali woman’s spouse has to wait for 15 years to get naturalised citizenship, while a Nepali man’s spouse can obtain Nepali citizenship as soon as the foreign spouse begins the process of giving up the citizenship of another country. This is highly discriminatory. If a woman cannot provide her children citizenship by descent and if her child’s birth cannot be easily registered then why will she stay in this country? The constitution has a right against exile but indirectly, this provision is threatening a Nepali woman that if she marries a foreigner, she will be exiled from the country.
The statue, however, does mention the right to equality.
It does. But the Clause 3 of the right to equality is restrictive. It mentions the list of people who are entitled to this special provision. The statute writes “provisions for empowerment or advancement of economically poor, socially or culturally backward women.” Why couldn’t the drafters just mention women in general?
Further, Article 43 which talks about the rights of the women mentions the right to safe maternity and reproduction. Are women machines that only live to give birth? It should have instead been right to reproductive health as in the Interim Consitution. Going by the new provision, can a woman now decide to delay child birth or not have a child at all or not?
The fundamental rights section mentions that women will have equal hereditary rights which implies citizenship by decent. But in the section related to citizenship, it mentions that neither a man, nor a woman can independently give citizenship to one’s child. This also curtails the rights of the children to choose the parent they want citizenship from.
What about the participation of women in government, the state?
At the central level there is the Representative Assembly and the National Assembly. Interestingly, the draft constitution ensures 33 percent participation of women in the National Assembly—which has no right to take any decision or promulgate laws—but not the Representative Assembly. What we need is 33 percent in the Representative Assembly and to ensure 50 percent participation of women in local bodies. We need a pyramid like structure to ensure the presence of women in decision-making positions.
Further, the draft only mentions participation of women in the executive without any threshold. This means, even if there is one woman it implies participation. Thirty-three percent participation of women must be ensured in the judiciary and judicial council, district courts and in constitutional bodies too.
And while finalising the constitution, a gender audit must be carried out to check if the language and other provisions in the statute are gender friendly or not. We should do away with words such as ‘Rastrapati’, ‘Senapati’. The statute should be gender neutral.
Regressive provisions have been introduced in the draft even as 29 percent of the lawmakers in the current CA are women. Can we say they have failed to do their duty?
On the one hand, there are no women at the decision-making levels across political parties. Most women simply obey what the leadership tells them to. On the other hand, when I visited all the constituencies of Makwanpur, 90 percent of the people, both men and women, affiliated to sister organisations of various political parties signed the banner demanding ‘or’ in the citizenship provision of the constitution.
Quite a few politicians have argued that changing the citizenship provision will threaten our nationality; that Indians will flood Nepal.
How can a Nepali man’s child be eligible for citizenship by descent while a Nepali woman’s child be termed an Indian? It is about a Nepali woman’s right to give citizenship to her child.
So where do such provisions leave us?
If the draft constitution is to rule the country in its current form, it will push society back by 50 years. There are only three countries in the world which need both the father ‘and’ mother to be citizens of the country for their children to acquire citizenship. They are Bhutan, Congo and Myanmar. Further, it could increase the number of stateless people in Nepal. Two years ago, we found that 4.3 million people in hills, plains, mountains, are currently stateless. Then there are an additional 0.9 million people who do not have the citizenship certificate because a single mother cannot pass on her citizenship rights to her children. The provision in the draft constitution will neither allow a man nor a woman to transfer citizenship to his or her child independently. This could increase the number of stateless citizens.
What do such provisions mean for the agenda of inclusion?
Clearly, the drafters of the constitution who have managed to dodge the issue of the inclusion of women—who make up more than half the population—are not serious about addressing the issues of the Dalits, Janajatis, Madhesis, disabled either. A war was fought to ensure inclusion, and then there was the Jana Aandolan II to establish the same agenda. Yet, the constitution has managed to ignore it. It seems as though the leaders wrote the constitution only to cater their own needs, not the needs of the people.
But where is the anger in women?
It was Bidhya Bhandari who presented the resolution motion in Parliament to ensure ‘or’ provision regarding citizenship rights and to do away with all discriminatory laws against women. We even honoured her for doing so. Sadly, these days, she argues that the demand for ‘or’ provision is a Western influence. This shows that women who reach the top seem to be more concerned about holding on to their positions than ensuring that their agendas get established. If women leaders cannot speak for women rights, they need to leave the posts they occupy. What is the point of being a puppet of the party? Women in general are angry. Though they might not have called for strikes, giving a fitting reply to the likes of Agni Kharel and Bhim Rawal in writing is also an expression of anger.
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