• FACE-TO-FACE
KATHMANDU, APRIL 28
Forum for Women, Law and Development is a leading organisation that champions the cause of equality and empowerment of marginalised groups.
FWLD has filed some important public interest litigations and has successfully criminalised marital rape, ensured the confidentiality of victims and witnesses in many cases of gender-based violence, and in achieved equality between sons and daughters on rights to ancestral property, among other law reforms. Advocate Sabin Shrestha, executive director of FWLD oversees the organisation's advocacy programmes.
Ram Kumar Kamat of The Himalayan Times caught up with Shrestha to discuss the issues the forum engages with. Excerpts:
Your organisation has been championing the cause of equality for more than two decades now. How do you look at the progress the country has made so far?
We have achieved a lot in the last three decades, particularly in the enactment of laws. In the past, daughters were not entitled to parental property. Now, they get their share in parental property thanks to the long struggle of rights activists. Now, single mothers and widows also get share of family property. The constitution has recognised right to reproductive health as a fundamental right, which itself is an achievement as many other constitutions do not recognise this right as a fundamental right. We have also enacted legislation to punish husbands guilty of marital rape. New laws have broadened the definition of rape and the country has also enacted workplace harassment laws. We also have laws to punish perpetrators of acid attacks.
The Supreme Court's decisions also made these achievements possible, but we still lag behind mainly because we have not been able to fully implement our laws and make our laws compatible with our commitments.
Government bureaucrats' old mindset remains a challenge. For example, the constitution stipulates that children of Nepali mothers, single mothers and citizens by birth will get Nepali citizenship. However, just because a procedural law has not been enacted, children of these categories of people have not been able to get citizenship for the last eight years.
The constitution guarantees that members of sexual and gender minority are entitled to citizenship with their identity, but again, these groups have not been able to obtain citizenship.
Although the government has said it will bring new citizenship Act within six months from the day the government gets full shape, it is not sure when this will happen. That's why, uncertainty over citizenship looms large. Children of citizens by birth, single mothers, and children of Nepali mothers, street children, and orphans are the worst sufferers.
Local governments are required to shoulder some key responsibilities in the new federal structure. Are they doing enough to protect women and children's rights?
Local governments responded well during the initial phase of COVID-19 pandemic. Had the government bureaucrats responded to COVID-19 pandemic initially, it would have been a disaster. So we must give credit to local governments for their response during the pandemic. Local governments, however, have not been able to shoulder their legal responsibilities.
For example, judicial committees headed by deputy mayors have not been able to meet people's expectations mainly because there are purely political representatives in the committee who lack legal knowledge and expertise.
Local governments are required to build shelter homes for victims of gender-based violence, but most of the local governments have not built such homes yet. Local governments have the responsibility of ensuring basic health services, again they have failed to deliver these services. The number of children in government schools is decreasing these days. With regard to vital registration, particularly birth registration, local governments have failed to live up to people's expectation because they have not issued birth registration to all the people who need it.
Only 77 per cent of births have registered. We are getting reports from local areas that local registrars refuse to register new births because they unnecessarily look for documents which the applicant cannot produce. Local governments have not made code of conduct for their employees to protect women employees from sexual harassment. There is a wrong notion among local governments that only road building or construction of concrete infrastructure are symbols of development. This is the reason why local governments are not focusing on human development.
How strong is our anti-sexual violence law?
We have enough laws to deal with the crime of sexual violence. The Crime Victim Protection Act is also important. The major problem however, is that this Act is not victim-centric.
The current law proposes to punish perpetrators and make provision for interim compensation for violence victims. The police, who are supposed to investigate the crime, should also investigate claims of compensation and seek to attach the alleged perpetrator's property, but this is not happening. Law enforcement agencies also need to state in their charge sheet how much property the accused has and how much property the government wants to attach for the purpose of paying compensation to violence victims.
We now have the Right to Safe Motherhood and Reproductive Health Act, 2018. Do you think this law is enough to ensure women's reproductive health rights?
Nepal's constitution lists right to reproductive health as a fundamental right. We have a new law to ensure right to reproductive health, but this act is not enough mainly because it prohibits abortion beyond 28 weeks of gestation even when the life of the pregnant mother is in danger. Most of the countries give pregnant women the right to abort when their health is in danger and when foetus infirmity is a case. Safe and easy abortion is one of the key determinants of right to reproductive health. Our women still face barrier in availing abortion because they are required to get abortion from listed health centres and listed health professionals.
During COVID-19 pandemic, the government issued a directive allowing women to avail self-managed abortion and telemedicine. These provisions have increased women's accessibility to reproductive health and the government needs to continue these services. During the pandemic, some hospitals did not have provision for providing sexual and reproductive health services, so we need to have a law to ensure that these rights are not violated on any pretext at any time. When we talk of SRHR we also need to think of the needs of people who want to have child through surrogacy. The SC passed an order in 2015 directing the government to bring a new law clearly defining the rights of intended parents and surrogate mothers, but the government has not made any law so far yet.
India has brought new Surrogacy and Assisted Reproductive Technology Act and I think we also need to bring new laws to ensure the rights of those people who want to have baby through surrogate mothers.
What changes should be incorporated in anti-human trafficking laws to control this evil?
At present the definition of human trafficking provided in the existing laws is not enough as the definition views Nepal as only a sending country. We have seen some cases where victims have also been trafficked into Nepal and the perpetrators have used Nepal as a transit country. People are being trafficked in the guise of foreign employment and cultural shows. The government has created central and district level committees to control human trafficking, but in the federal set up, it has not expanded these committees in provinces and local governments.
A version of this article appears in print on April 29, 2023, of The Himalayan Times.
