>> Friday, July 3, 2015
Ajay Pradhan | July 3, 2015
In ancient Nepal and India, widows in some communities and princely aristocracies committed suicide by fire on the funeral pyre of dead husband, all before the approving eyes of the authoritative patriarchs and their docile women in the family, community and society. Widows who did not want to commit suicide were forced into it. Often, the wailing and petrified widows were dragged to the pyre, to be burned alive. Society determined that after the death of husbands, women had nothing to live for.
We’ve come a long way from there. In today’s liberal society, the mere mention of this odious, repulsive and abominable practice, called Sati, wrenches our gut and makes us cringe with revulsion. We cannot comprehend the true psychological impact of this practice on the society at large and women in particular.
Social practices die hard and slow on their own, unless a larger-than-life personality convinces the impressionable citizens of the society to discontinue them. Or, unless the State decrees an end to such practices through enactment of law.
Thankfully the repugnant practice has now long been consigned to the deep trenches of history, both because of gradual social change and the State’s proactive intervention through codified decrees.
This was an extreme form of socially-entrenched and socially-sanctioned deep-seated prejudice against women in a patriarchal society.
Things have gotten better. But not all better.
Still today, women are subjected to state-sanctioned discrimination of a different variety. How else can you explain the discriminatory citizenship codes in Part 2 of the Preliminary Draft Constitution of Nepal tabled in the Constituent Assembly on June 29, 2015? Despite the fact that the Draft Constitution has codified equal rights for men and women, the draft contains unequal citizenship codes for men and women, which clearly do not align with the equal rights code guaranteed by Part 3 of the Constitution. For details of the unequal citizenship rights coded in the Draft Constitution, read my separate commentary here.
Has Nepal really moved much ahead from the patriarchal society that existed in the times of Sati? The nature of discrimination may have changed, but the prejudice still remains. Men still call the shots. The Constitution drafted by chauvinistic men still see women as a lesser human being. Small wonder why female feticide still occurs in the society. Misogynistic policies compel girl child to grow up wondering why she was not born a boy, instead.
The discrepancy in the application of citizenship laws on men and women has raised the gender perspective at international forums.
The June 2003 issue of the Women2000 and Beyond, a report series published by the U.N. Division for the Advancement of Women (UN DAW, 2003), added a much needed focus on women, nationality and citizenship. The series is published to promote the goals of the Beijing Declaration and the Platform for Action for gender equality and the empowerment of women. (You can download a copy here http://www.un.org/womenwatch/daw/public/jun03e.pdf).
“Where parents have different nationalities, laws can bestow the nationality of the father upon a child, but deny the child her mother’s nationality,” the report states (UN DAW, 2003: 2). This is exactly what the Draft Constitution is about to do in Nepal.
To be fair, Nepal is not alone in this regard. The UN report states, “Although the laws of most States now entitle a woman to maintain her independent nationality upon marriage, many States retain laws that discriminate between women and men with respect to the nationality of their children, particularly in the area of acquisition of nationality by descent. Most legal regimes that provide for nationality by descent accord the nationality of the father on his children, irrespective of the nationality of his spouse. It is less usual for such regimes to devolve the nationality of a woman married to a foreigner on her children automatically. In many States, nationality through descent from the mother is conferred only where she is unmarried or the father is unknown or stateless” (UN DAW, 2003: 8). Which country do you think is about to do this? You guessed it: Nepal.
Can Nepali women expect to be accorded equal justice? Can they expect to live in dignity as equal partners to men? Can a wife have equal status in society as a husband? Can a girl child grow up, with equal protection and justice guaranteed by the Constitution?
As the cliché goes, where there is a will there is a way.
The UN DAW report (2003) lays out the “scenarios in which inequality in the bestowal and retention of nationality causes particular hardships for spouses of different nationalities. International human rights standards to redress these inequalities exist within the human rights treaties, article 9 in particular of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW, 1979). Judicial decisions indicate how these standards can be used to challenge existing inequalities between men and women. However, there are many obstacles to the effective implementation of human rights standards” (UN DAW, 2003:19).
While international law recognizes the sovereign States’ discretionary power to enact laws and devise public policies with respect to conferral of citizenship upon individuals, the UN has made recommendations for actions at both international and nation levels (UNDAW, 2003: 19). At the national level, the UN recommends “legal and administrative reforms” in domestic law to ensure international standards that are based on the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979). So, in Nepal, which is on the cusp of getting a new Constitution, if we don't do that now, then when will we do it?
Nepal has to decide whether to stand on the right side of history and global community or on the wrong side. There is a choice to make. Does Nepal want to stand with the small community of discriminating States or with the larger global community that has fair citizenship laws based on gender equality?
The time to make that choice is now, when the Constitution-writing process is in the last lap. If not corrected now, it will be much harder later.
Nepali people cannot expect to have a New Nepal and leave women behind.
Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW, 1979): http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm
The Women2000 and Beyond, June 2003, a report series published by the U.N. Division for the Advancement of Women (UN DAW, 2003): http://www.un.org/womenwatch/daw/public/jun03e.pdf