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Country Papers
NEPAL Nepal
SAPANA PRADHAN MALLA
Purpose of Study seminar papers have also been
used as secondary sources of Contents
The present study on the impact of the Con- information.
vention on the Elimination of all forms of The study has given us power
Discrimination Against Women (CEDAW) has to negotiate with the concerned
been conducted for the York University, mechanism as it is the first of
Purpose of Study
Center for Feminist Research, who has been its kind and no other study has
working in co-operation with the United been conducted up to now to Executive Summary
Nations Division for the Advancement of see how CEDAW has been used Background of CEDAW
Women (UN-DAW) and International Women’s in the country. It has tried to Specific Features
Rights Action Watch (IWRAW). record the historical events Nepal’s International
The paper attempts to record the histori- from the ratification process up Commitments in Different
cal development and context relating to the to now, when the government
Human Rights Instruments
ratification process of CEDAW and examines is on the point of presenting
implementation of government obligations their initial report. IncorporatingWomen’s
under the Convention through legislation, NGOs are using this study in Rights
policy and programs, and by courts, govern- preparing a Shadow Report on Treaty Obligation
ment institutions and parliament. The report the initial report of the govern- Historical Context of the
aims at creating tools for the government and ment on CEDAW along with the Ratification CEDAW in
non-governmental organizations (NGOs) to en- draft baseline report on facili-
Nepal
able them to effectively address the issues per- tating the fulfillment of State
taining to implementation, reporting and obligation towards women’s Awareness about the
monitoring of CEDAW in the Nepalese context. equality (a project initiated by Convention and its
Since the World Conference on Women in IWRAW-Asia Pacific). Contents
Beijing, politicians and governments have Initial Report
talked of women’s rights and made prom- Executive Summary Articles of the Convention
ises for their upliftment. Very few of those
State Obligation Under
promises have actually been translated into Right after the restoration of
CEDAW and its
reality, leaving most of other promises just— the multi-party democracy sys-
promises. The study assumes special impor- tem in Nepal on 22 April 1991, Implementation
tance also in light of such gaps between com- the then interim government Institutional Mechanism
mitments in favor of women’s rights and hon- ratified CEDAW without any res- NGO s’ response to CEDAW
est implementation of programs and policies ervation. The members of the Conclusion
to realize those commitments. interim government came to
Bibliography
The study has been done mainly with in- the office with an activist back-
terviews with concerned governmental and ground with the idealism of Endnotes
non-governmental organizations working in democracy ruled law, protec-
relation to CEDAW and publications related to tion of human rights and a po-
women’s development. Different statistics and litical system based on multi-
articles published in different journals and party pluralism. The govern-
The First CEDAW Impact Study 77Nepal
ment was all too willing to ratify CEDAW, as CEDAW workshop organized by IWRAW Asia
ICCPR was ratified only on May 14, 1991 with Pacific in 1993.
the pressure of a few human rights organiza- The Constitution of the Kingdom of Nepal
tion to accede on it. During the ratification, promulgated after democracy guaranteed
many people commented that the government principles of basic human rights to every citi-
signed the instrument amid excitement and zen including rights to equality and also pro-
restlessness caused by the new found democ- vides that any law inconsistent with the pro-
racy hence its implementation would be weak visions of the Constitution shall be void. The
and ineffective as it was done without estab- Constitution has also opened avenues for the
lishing an infrastructure. In our interview, the widening the concept of locus standi in cases
then Law and Justice Minister said that rati- of public interest. Any treaty ratified by the
fying the treaty at least will open avenues for Parliament in which the government is a party
human rights and women’s rights organiza- is enforceable as a national law. The then in-
tions and the general people to pressure the terim government which ratified CEDAW, en-
government to continuously work in the di- joyed executive as well as the legislative au-
rection of creating the infrastructure required thorities as there was no parliament. By rati-
for the effective implementation of CEDAW. fying CEDAW, the State is not only responsible
Despite some attempts to popularize CEDAW, for the elimination of all forms of discrimi-
the fact of the matter is that many people nation against women as defined by Art. 1 of
including those in the decision making and CEDAW, but also accountable to guarantee the
implementation authorities are unaware of rights specified in Art. 5-16 of CEDAW through
the ratification and existence of the Conven- policy and legal process, guaranteeing the ba-
tion. After ratification of CEDAW, it was not sic human rights following the measures to
communicated in the public media including ensure not only de jure right, but also de facto
government media. Women rights NGOs be- equality for the equality in result with sub-
came more aware of the Convention after a stantive equality. A strong commitment seems
to have been made in the Ninth Plan to re-
Status of Women in the Nation view existing legislation on women and to
enact appropriate laws in accordance with the
international instruments.
Male Female Ratifying CEDAW, the State has recognized
the existence of discrimination and inequal-
Life Expectancy 55.90 % 53.40 % ity, these commitments are somehow trans-
Employment 83.50 % 16.50 % ferred in the latest national policies and plan
Enrollment in of action prepared by Ministry of Women and
Social Welfare but implementation of the
School 78.71 % 55.61 %
promises have been very weak due to the so-
Education 59.32 % 21.33 % cial value system, inadequate monitoring and
Upper House 91.00 % 09.00 % evaluation systems for programs, poor en-
Lower House 96.59 % 03.41 % forcement concerning women’s rights.
Local Government 80.00 % 20.00 % Few initiatives to enact the special laws are
Central Working taken which includes A compulsory five per
cent of women candidates from each politi-
Committee of the
cal party in the general election of lower
Political Parties 91-94 % 6-9 % house, three seats in the upper house and 20
Cabinet per cent of seats reserved in the local govern-
(from 1990-1998) 88-100 % 0-12 % ment as CEDAW recognizes that different poli-
cies may be formulated and applied to women
Source: Data Compiled by FWLD for the CEDAW Impact Study in order to realize substantive rather than
formal gender equality. However, these are
from various statistics.
limited measures to advance the condition of
78 The First CEDAW Impact StudyNepal
100
90
80
83.5
78.71
91 96.59
80
92 94
N
70
E
59.32
55.9 53.4 55.61
60
50 Male
40 Female
30
P
2 1 .3 3 20
20 16.5 8
9 3 .41 6
10
0
L. E. Emp.t Enro. in Edu. U.H. L H. Local CWC Cabinet
A
the sc. Govt. of PP
women and more activities have to be con- A leading case where a daughter is denied
ducted to incorporate CEDAW into domestic the right to inherit paternal property (a
L
legislation. daughter has to be unmarried and must at-
Nepal has its own idiosyncratic Hindu le- tain 35 years to inherit paternal property
gal system based on patriarchy, which reflects whereas a son is eligible to inherit paternal
male supremacy. The Constitution itself says property right after his birth) under existing
it’s a Hindu Kingdom. Patriarchal values, deep laws, was challenged in the Supreme Court
rooted in the social attitude, are controlling in Meera v. Ministry of Law and Justice. The
the family system, hence women have not Court declared that the existing provision to
been able to practice their rights due to the inherit paternal property is conditional and
social, cultural and religious value system. Ir- a directive was issued to the government to
respective of the constitutional provisions for introduce a Bill in the legislature within a
gender equality, many laws governing mar- year, reviewing laws related to property
riage and family relations especially in regards rights. At the same time, the Court also asked
to child custody, property, divorce and bigamy the government to take into consideration the
are discriminatory. Violence against women patriarchal nature of the society, social struc-
is a grave social problem. The laws of Nepal ture, and fear of positive discrimination
define the status of women in terms of their against men.
sex and marital status; which is directly re- Similarly, many other cases on discrimina-
stricted by Article 1 of CEDAW. This social and tion was also filed in the Court, in each case,
cultural status is reinforced by the executive, the question of State obligation under the
legislative and also by the judiciary while in- various international instruments, Treaty Act
terpreting women’s rights based on sex and and the Constitution were raised. However,
marital status. in none of these cases did the Court try to
Several petitions are filed with the Supreme develop the jurisprudence of State obligation
Court against a number of discriminatory le- under international instruments in the domes-
gal provisions prevailing in our laws. After tic context. Hence there is a need of a clear
initiation of a few cases it was realized that definition of law with the principle of equal-
challenging the laws based on provisions in ity and non discrimination.
CEDAW, might cause problems when taking up Despite the negative interpretation about
matters to the International level. Hence we the status of women in the society, the chal-
also quoted the Covenant on Civil and Po- lenges against the existing laws had a posi-
litical Rights which also has an optional Pro- tive impact as a result of which women are
tocol. relatively more empowered. Because of the
The First CEDAW Impact Study 79Nepal
court decisions, the entire society was forced line with the standards of a ratified treaty.
into rethinking the patriarchal structure, male Until the government takes this initiative, the
supremacy, and the status of individual free- international standards cannot be enforced
dom of women. Women have begun to be within the domestic legal system. Therefore,
vigilant about the issues and link them with other strategies must be pursued to stimulate
the broader issue of equality. the political will to incorporate the interna-
As a result of judicial interventions in many tional standards on gender equality within the
cases, the government had to submit a Bill in country’s municipal laws. This is vitally nec-
the Parliament acknowledging in its Pream- essary if the process of standard-setting at the
ble itself that its objective was to amend the international level is to help to create univer-
existing discriminatory laws and maintain sal ethics on equality and improve the status
balance in the society since Nepal was a sig- of women within countries.
natory to the Convention on Elimination of The reporting process is the monitoring
All forms of Discrimination Against Women, mechanism under CEDAW to make them ac-
and also as a decision of the court. countable to for heir obligations and it’s the
The Ministry of Women and Social Wel- government’s responsibility to prepare and
fare is defined as the lead agent to follow up submit the report. The Government agencies
and take necessary actions to meet Nepal’s are confused as to which particular institu-
commitments in all UN Conventions and Dec- tion is responsible for the preparation of the
larations related to women as specified in the initial report under the international instru-
initial report. The Ministry of Women and ments. Despite the confusion, the initial re-
Social Welfare does not have any informa- port on CEDAW was prepared by the National
tion about the meeting of the Commission Planning Commission and submitted to the
on the Status of Women (CSW), CEDAW expert Foreign Ministry in May, 1997, which had
group meetings and the negotiations going been due since 1992. This did not reach the
on with ¡the Optional Protocol as well. The UN for one-and-a-half years. Hence, proper
National Council for Women education about State obligations and report-
and Children Development ing mechanism has to be launched right after
held a formal meeting only the ratification of any international instru-
once after it was formed in ment of such category.
The report fails 1995. However, the Ministry The suggestions made by the NGOs have not
to include the real has taken up the initiative to been incorporated by the Government in the
draft the Bill on inheritance report especially the ones regarding interven-
scenario of women rights, domestic violence, a tion in cases involving violence against
even after it has national commission for wo- women about which the Convention does not
been made obligatory men, and has also compiled a have a specific Article. The report mostly
few discriminatory laws which highlights the existing and past initiatives
on the state to are inconsistent with CEDAW . taken by the government and NGOs and fails
eliminate all forms However, initiatives taken by to include the real scenario of women even
the Ministry of Women is not after it has been made obligatory on the state
of discrimination taken seriously by the Govern- to eliminate all forms of discrimination
against women ment Agencies. against women with an approach of substan-
with an approach of There is no co-ordination tive equality looking into the de jure and de
between the government agen- facto equality.
substantive equality cies, especially among Foreign During the study, it also came out that the
looking into Ministry, Women Ministry, Beijing Platform for Action was more popu-
Law Ministry, Finance Minis- lar with the Government and the people
the de jure and try and the National Planning rather than CEDAW due to the media focus.
de facto equality. Commission, all of which have For example, National Plan of Action pre-
some obligations to adjust pared by the Ministry of Women does specify
laws, policies and practices in that the plan is based on the guidelines of
80 The First CEDAW Impact StudyNepal
N
Beijing Platform, where as it does not say to Nations International Women’s Year that
bring the CEDAW into national reality. How- called for “a convention on the elimination
ever, the policy of adopting special provisions of discrimination against women, with effec-
regarding international instruments in domes- tive procedures for its implementation.” Its
tic legislation has generally been followed by preamble recalled that the elimination of dis-
the state for providing women their rights.
Ironically, programs for the implementation
of such policies are not adequate. As a result,
there is no improvement in the situation of
crimination against women and the promo-
tion of equality between women and men
were the central principles of the United Na-
tions, enjoying binding obligations under the
E
women’s human rights and the international Charter and other international instruments.
commitments made by the country in this
regard have remained mere commitments
with less achievement. The challenge, there-
fore, is to recognize the need of stable and
The treaty holds the states accountable for
denial of women’s rights, whoever the of-
fender.1 P
accountable government, who are aware Specific Features2
about their commitment nationally, interna-
tionally with the political commitment and
to have strong NGO monitoring.
(based on the training materials on
CEDAW prepared by IWRAW-AP)
The Convention is a comprehensive Bill of
A
L
Background of CEDAW rights for women. It has integrated various
concerns hitherto expressed in ad hoc man-
Recognizing the need for a comprehensive ner in various declarations.
statement of women’s entitlements to equal- The Convention is based on the principle
ity in a form that would be legally binding of equality between men and women. Hence
on State parties, CEDAW was adopted by the it extends the coverage of human rights to
United Nations on 18th December 1979. The women.
adoption of the Convention, the culmination It mandates these rights
of decades of international efforts to protect through the legislative process,
and promote the rights of the world’s women, meaning that there is an av- Women’s access
was opened for signature by state parties in enue for holding the State ac-
1980 and came into force in September 1981. countable for guaranteeing the to legal rights are
It was an outcome of the initiatives taken rights. curtailed by
within the United Nations Commission on the It recognizes that despite the
Status of Women, the body established within granting of legal rights to
the denial of rights to
the United Nations system in 1947 to con- women in many countries, dis- economic and social
sider and make policy recommendations to crimination persists, and wom- development. The
improve the condition of women. In the ten en’s access to legal rights are
years between 1949 and 1959, the Commis- curtailed by the denial of rights convention bridges
sion prepared a number of treaties, including to economic and social devel- the divisions between
the Declaration of Elimination of all forms opment. To avoid a similar
of Discrimination Against Women. eventuality, the Convention
civil and political and
Because the Declaration was not a treaty it bridges the traditional divi- socio-economic rights,
did not create binding obligations on States, sions between civil and politi- mandating both legal
despite exerting tremendous moral and po- cal and socio-economic rights,
litical pressure on them. In 1972, the Com- mandating both legal and de- and development
mission on the Status of Women considered velopment policy measures to policy measures
the possibility of preparing a treaty, which guarantee the rights of women.
would provide binding force to the Declara- It recognizes that unequal
to guarantee the
tion. Preparation of such a treaty was encour- treatment to women is socially rights of women.
aged by the World Plan of Action adopted by constructed and accepts the
the 1975 World Conference of the United existence of discrimination
The First CEDAW Impact Study 81Nepal
against women as a matter of fact. The Con- The Convention also recognizes the nega-
vention starts with the definition of discrimi- tive impact of social, customary and cultural
nation. Article (1) states: practices which are based on the idea of the
“inferiority or the superiority” of either sex
The term discrimination against women or on stereotyped roles for women and men
shall mean any distinction, exclusion or (Article 5). Articles 1 and 5 give the Conven-
restriction made on the basis of sex which tion the widest applicability, as together they
has the effect or purpose of impairing or can be interpreted to refer to almost any situ-
nullifying the recognition, enjoyment or ation that adversely affects women.
exercise by women, irrespective of men Finally, the Convention carries with it the
and women, of status, on the basis of principle of State Obligation. Under this
equality of men and women, of human treaty the dynamics of relationship between
rights and fundamental freedom in the the State and women is no longer that of the
political, economic, social, cultural, civil, dependency of women on the goodwill or
or any other field. vagaries of the State, but one in which the
state has responsibilities to women from
The Convention draws the distinction be- which it cannot withdraw. Theoretically, im-
tween de jure and de facto rights, recogniz- plementation of the Convention is binding on
ing not only current discrimination but also all State parties. There is also a monitoring
past discrimination. It also introduces the mechanism. All State parties are duty-bound
concept of corrective measures to overcome to submit periodic reports to the Committee
the effect of past discrimination that leaves on the Elimination of All Forms of Discrimi-
women handicapped vis-a-vis men. For ex- nation Against Women (CEDAW).
ample, if a development initiative is offered
to women on the same footing as men in line Nepal’s International Commitments In
with the principle of equal rights or equal Different Human Rights Instruments
opportunity, it might still turn out that men Incorporating Women’s Rights
benefit more than women, because men have
more experience, confidence or simply be- As a member of the United Nations, Nepal
cause the environment is male dominated and is a party to a large number of international
is more conducive to male participation. This legal instruments concerning women (listed
is the effect of past discrimination. Article 4 in the Table 1) without any reservations and
provides for measures through which affirma- has also accepted the jurisdiction of the In-
tive action and women centered development ternational Court of Justice in the applica-
policy measures can be legitimized to ensure tion and interpretation of the instruments.
de facto equality for women. The Conven- Nepal is also a party to various labor con-
tion goes beyond the law and obligates gov- ventions related to women such as the Con-
ernments to implement extra legal measures. vention on the Equal Remuneration (No.
The provisions under Article 4 can be used 100), Convention on the Discrimination (Em-
to obligate governments to implement policy ployment and Occupation) (No. 111) and
and program interventions, even to the ex- others.
tent of reverse discriminations in order to
enable women to access the rights guaran- Treaty Obligation
teed in the law.
It addresses the need to tackle power rela- Being a multilateral treaty, the implemen-
tions between women and men at all levels, tation aspect of the Convention—when and
from family to community, market and state. how to execute the provisions—depends en-
It discards the distinction between the pri- tirely on the executive decision. A separate
vate and the public spheres, by recognizing Treaty Act was passed by the interim govern-
violations of women in the private sphere i.e. ment (1990-91) to regularize ratification of,
home, as violations of women’s human rights. and accession to, such conventions in line
82 The First CEDAW Impact StudyNepal
Table 1
N
S. N. International Instruments Ratification or Accession Date
1
2
Slavery Convention,1953
Supplementary Convention on the
Abolition of Slavery, the Slave Trade
7 January 1963 (A) E
3
and Institution and Practices
similar to Slavery, 1956
Convention on the Political Rights
of Women, 1952
7 January1963 (A)
26 April 1966 (A)
P
4 Convention on the Prevention and
5
the Punishment of Genocide, 1948
International Covenant on the
Elimination of All Forms of Racial
Discrimination, 1965
17 January 1969 (A)
30 January 1971 (A)
A
6
7
International Convention on the
Suppression and Punishment of the
Crime of Apartheid, 1973
International Convention Against
12 July 1977 (A) L
Apartheid in Sports, 1985 1 March 1989 (R)
8 Convention on the Rights of
the Child, 1989 14 September 1990 (R)
9 Convention on the Elimination of All
Forms of Discrimination Against
Women, 1979 22 April 1991 (R)
10 International Covenant on Economic,
Social and Cultural Rights, 1966 14 May 1991 (A)
11 International Covenant on Civil and
Political Rights, 1966 14 May 1991 (A)
12 Optional Protocol to the
International Covenant on Civil
and Political Rights, 1966 14 May 1991 (A)
13 Convention Against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984 14 May 1991 (A)
14 Convention on the Suppression of
Immoral Trafficking and
Protocol, 1949 25 December 1995 (A)
15 Second Optional Protocol to the
International Convention on Civil
and Political Rights/aiming at the
Abolition of Death Penalty, 1989 4 June 1998
Source: Data collected for CEDAW Impact Study by FWLD.
The First CEDAW Impact Study 83Nepal
with the spirit of Article 126 of the Consti- Torture and other Cruel, Inhuman or Degrad-
tution of the Kingdom of Nepal, 1990. Sec- ing Treatment or Punishment, 1984 was
tion 9 of the Treaty Act provides that any made only on May 14, 1991 as per the Cabi-
treaty once ratified, acceded to, accepted and net decision of 15 April, 1991 (2048.1.2). The
approved by the Parliament, in which the basic visible difference between the ratifica-
Government is a party, shall be enforceable tion of CEDAW and ICCPR was that while in the
as a national law. So strong is the force of case of the former the Government was all
the treaty that in case of contradictions be- too willing, in case of the latter, a few human
tween a prevailing municipal law and the rights organizations had to lobby and pres-
treaty, the prevailing law shall be declared sure the Government to accede to the multi-
void and the treaty provision is implemented lateral treaty.
as national law. The then interim government, The members of the interim government
which ratified CEDAW, enjoyed executive as of 1990-91 came to the office with an activ-
well as the legislative authority—through an ist background. The government came into
order of the Monarch and the Transitional being at the end of the 30-year party-less dic-
Provisions in the Constitution—since there tatorship and was led by political leaders who
was no parliament for a full year after the fought for democracy and provided leader-
restoration of multi party system in 2 April, ship to the popular movement. These leaders
1990. had as their main mantra the idealism of de-
mocracy, rule of law, protection of human
Historical Context of the Ratification of rights and a political system based on multi-
CEDAW in Nepal party pluralism.
The role of the then Law and Justice min-
Catapulted to a position of power by the ister in the ratification of CEDAW was praise-
historic 1990 popular movement, the interim worthy, so was the role of the then Prime Min-
government—led by the Nepali Congress and ister, and one woman voice in the cabinet,
comprising of the Left Front, the Royal ap- Sahana Pradhan.
pointees and the independents—that took of-
fice in April 1990 was out in favor of State b. Ratification without infrastructure
commitments on issues related to human When the Convention was being proposed
rights and democracy. While in the same up- for ratification, many believed the Govern-
beat mood, the Ministry of Law and Justice ment was signing the treaty amid excitement
initiated and submitted the proposal for the and restlessness caused by the new-found de-
ratification of CEDAW to the Cabinet and was mocracy. Signing the treaty, they thought,
decided by the Cabinet on 10th December would have no practical impact and its im-
1990 (2047.8.24), Nepal on April 22, 1991 plementation would be weak and ineffective
ratified the treaty. Five days after the ratifi- if it was done without establishing the social
cation, on April 27, the instrument of ratifi- and economic infrastructure and institutions
cation was deposited before the Secretary to end discriminations of all forms. But the
General of the United Nations. then Law, Justice and Parliamentary Affairs
Minister had a different opinion. Himself a
a. Motivation of the government to lawyer and a long time pro-democracy fighter,
ratify CEDAW Nilambar Acharya conceded that the Gov-
A similar attitude toward other multilat- ernment had been confronted with the idea
eral treaties was not prevalent despite a gen- of ratifying the treaty only after creating the
erally positive outlook of the Government to- basic infrastructure. “But what we thought
wards international instruments protecting was that if we waited for the infrastructure
the rights of the citizens. The accession to to be set up for the ratification of the treaty
the International Covenant on Civil and Po- we could be faced with a situation where nei-
litical Rights and its Optional Protocol 1966, ther the infrastructure would be put on place
and the ratification of Convention Against nor would CEDAW be ratified,” Acharya then
84 The First CEDAW Impact StudyNepal
N
said. The best thing to do would be to ratify fact of the matter is that many people includ-
the treaty “Because that would at least open ing those in the decision-making and imple-
avenues for human rights and women’s rights mentation authorities are unaware of the rati-
organizations and the general people to pres- fication of the Convention. A classic exam-
sure the government to continuously work in ple of the same could be of a responsible of-
the direction of creating the infrastructure for
the effective implementation of CEDAW.”
Many in the higher echelons of the bureauc-
racy have since questioned the efficacy of the
ficer at the Ministry of Women and Social
Welfare who said that she came to know of
the Convention only after joining the Minis-
try. Needless to say, the government has failed
E
interim government’s decision to ratify the to link CEDAW as a policy guideline for all gov-
ambitious treaty. “It was a government led
by pro-democracy fighters with strong ideo-
logical bond with human rights and democ-
racy and the leaders signed the treaty merely
ernment activities related to women.
Women rights’ NGOs became more aware
of the Convention after a CEDAW workshop
organized by IWRAW-Asia Pacific and Manushi
P
out of their emotional attachment and com- in 1993. That was when some women came
mitments. They ratified the treaties without
thinking about their implementation as a re-
sult of which those international commit-
ments have not been complied with in prac-
to know the existence of the documents re-
lated to the Convention and its ratification
by the Government. But in all humility, we
must accept that many lawyers and judges
A
L
tice despite the lapse of considerable time are still unaware of even the existence, let
since the ratification.” alone contents, of the Convention.
However, few non-governmental organiza-
c. Ratification without reservation tions have been publicizing the CEDAW through
His Majesty’s Government ratified CEDAW articles, workshops, speeches, radio pro-
without any reservations whereas many Asian grams, newspapers, posters, cartoons and
governments, including developed countries, brochures.
ratified the Convention with a number of res-
ervations. Initial Report
d. Communication of the ratification a. Initiative to draft
It was generally believed that at least the The initiative to draft the initial report on
national radio and the State-owned newspa- the implementation of the Convention that
pers announced the ratification of CEDAW in was due since July 1992, started in Decem-
1991. However, upon researching the govern- ber 1995. After attending the CRC monitor-
ment newspapers, no announcement of rati- ing meeting in Bangkok, the National Plan-
fication of CEDAW could be discovered. On the ning Commission and few NGOs were encour-
other hand, accession to and ratification of aged to draft the initial report on CRC and the
ICCPR and other conventions were announced same initiative resulted in the preparation of
in the government media. a report on CEDAW for the National Planning
The Cabinet decision to ratify the Conven- Commission. Mr. Gyanendra Shrestha, a sec-
tion also said that enough propaganda and tion officer at the Planning Commission
publicity should be carried out to familiarize played an important role in taking initiatives
the Convention to the general public. A noti- in this regard.
fication about the ratification of CEDAW was pub- There was little pressure from the NGOs as
lished in The Gazette no. 2048.3.4 (June 1991) well to take initiative for the preparation of
with an English text of the Convention. the report until they came to know of the
mechanism in the convention that requires
Awareness about the Convention and Its the States to submit the initial report and pe-
Contents riodical reports to monitor the status of
women.
Despite attempts to popularize CEDAW, the The major voice for the submission of the
The First CEDAW Impact Study 85Nepal
initial report was raised by the Gender Watch porated by the Government into the report
Group and Forum for Women, Law and De- especially the ones regarding intervention in
velopment (FWLD) during a meeting with con- cases involving violence against women about
cerned government agencies including the NPC which the Convention does not have a spe-
and the Ministry of Foreign Affairs when cific Article. The report fails to highlight vio-
CEDAW Expert Member Ms Arora D’souja lence against women even though general rec-
from Philippines was to visit Nepal. This ommendation No. 19 has been made to bring
meeting was organized during April 13-14, the problem of violence against women within
1997 to pressurize the government to sub- the jurisdiction of the CEDAW . The report
mit the initial report.3 Finally the NPC sub- mostly highlights the existing and past initia-
mitted the report on 15 May 1997 to the tives taken by the Government and NGOs and
Ministry of Foreign Affairs. fails to include the real scenario of women
even after it has been made obligatory on the
b. Formation of the Committee State to eliminate all forms of discrimination
The NPC took the initiative to draft the ini- against women with an approach of substan-
tial report and formed a committee consist- tive equality. The initial report has also not
ing of nine members represented by the Plan- been able to incorporate the policies and pro-
ning Commission, Ministry of Law and Jus- grams and the Plan of Action to implement
tice and NGOs. 4 However, during this study it CEDAW in the national context. Inhured Inter-
came to the light that nobody knows which national too had the impression that when
institution is responsible for the preparation the initial report on CRC was prepared and
of the initial and periodical reports in Ne- submitted; NGOs’ comments were taken seri-
pal. Ministry of Women and Social Welfare ously in each Article, whereas in reality NGOs’
was not even consulted during the prepara- report was not at all incorporated in the ini-
tion of the initial report. tial report.
c. NGO participation e. Submission
Inhured International (a na- The Initial Report was delayed for a fur-
tional NGO ) took the initiative ther one and half years after it was submitted
to provide input on the draft by the NPC to the Ministry of Foreign affairs.
Not many government report of the Con- A reference to one sentence of the country
comments made vention on Elimination of All report that Nepal placed during the Com-
Forms of Discrimination memoration of Beijing, Sept. 9-10, 1998, pre-
by the NGOs have Against Women for which two pared by the Ministry of Women and Social
been incorporated national workshops were held Welfare, may be worthwhile. The report said,
by the Government during July-August 1995 “Nepal has submitted it’s initial report to
aimed at allowing intensive dis- Geneva”. This is how the report was lost. It
into the report cussions on the subject and to was identified when we requested the Divi-
especially the facilitate widest possible rep- sion of Women’s Advancement Committee to
resentation of NGOs in the proc- start reviewing the report and give priority
ones regarding ess. Inhured asked for the draft to our country for the presentation as this is
intervention in cases report prepared by the govern- an initial report, which was due for six years.
involving violence ment on the subject to provide Division confirmed that they never received
its inputs on it, which the Plan- the report from Nepal. Later, as the FWLD fol-
against women about ning Commission made avail- lowed up the issue it discovered that it actu-
which the Convention able to it. ally had never been sent to New York. Fi-
nally the Secretary of Foreign Ministry office
does not have a d. Incorporation of the NGO said it would be submitting it to New York
specific Article. contributions in October 1998. Finally, the report was been
Not many comments made received by the United Nation Division for
by the NGO s have been incor- the Advancement of Women and Right after
86 The First CEDAW Impact StudyNepal
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which Nepal was given the opportunity to the practical realization of this principle;
present their initial report in June 1999. (b)To adopt appropriate legislative and
other measures, including sanctions where
Articles of the Convention appropriate, prohibiting all discrimination
against women
The broad structure of the Convention is
as follows:
Articles 1–4 outline the general premises
of eliminating discrimination and the nature
(c)To establish legal protection of the rights
of women on an equal basis with men and to
ensure through competent national tribunals
and other public institutions the effective pro-
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of the general obligations undertaken by state tection of women against any act of discrimi-
parties, including the definition of discrimi-
nation (Article 1), policy/legal measures to
be undertaken to eliminate discrimination
(Article 2), guarantee of basic human rights
nation;
(d)To refrain from engaging in any act or
practice of discrimination against women and
to ensure that public authorities and institu-
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and fundamental freedoms for women on an tions shall act in conformity with this obli-
equal basis with men, and specifying the tem-
porary special measures being considered dis-
criminatory. (Article 4)
Articles 5–16 specify the different areas
gation;
(e)To take all appropriate measures to
eliminate discrimination against women by
any person, organization or enterprise;
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under which governments are obliged to (f)To take all appropriate measures, includ-
eliminate discrimination through the meas- ing legislation, to modify or abolish existing
ures described in Articles 1-4. These include: laws, regulations, customs and practices
sex roles and stereotyping (Art. 5), prostitu- which constitute discrimination against
tion (Art. 6), political and public life (Art. women;
7), participation at the international level (g)To repeal all national penal provisions
(Art. 8), nationality (Art. 9), education (Art. which constitute discrimination against
10), employment (Art. 11), health care and women.
family planning (Art. 12), economic and so-
cial benefits (Art. 13), rural women (Art. 14), (i) CEDAW (Gender Equality)
equality before the law (Art. 15), marriage Under the Constitution of
and family law (Art. 16). the Kingdom of Nepal The Constitution
Articles 17–22 detail the establishment and The Constitution of the of the Kingdom
functions of CEDAW and Articles 23-24 detail Kingdom of Nepal, 1990, en- of Nepal, 1990,
the administration of the convention. shrines as its underlying prin-
ciples the basic human rights enshrines as
State Obligation Under CEDAW and its to every citizen and a guaran- its underlying
Implementation tee of a system of justice in line
with the concept of Rule of principles the
A. Eliminate Discrimination and Law. The Constitution under basic human rights
Ensure Equality the fundamental rights chapter to every citizen
States Parties condemn discrimination recognizes various interna-
against women in all its forms, agree to pur- tional and regional instruments and a guarantee
sue by all appropriate means and without including CEDAW. The funda- of a system of
delay a policy of eliminating discrimination mental rights guaranteed in the
against women and, to this end, undertake Constitution include among justice in line
(Article 2): others, right to equality, right with the
(a)To embody the principle of the equality against exploitation, right to concept of
of men and women in their national consti- privacy etc. Protection and pro-
tutions or other appropriate legislation if not motion of the human rights is Rule of Law.
yet incorporated therein and to ensure, a basic feature of the Consti-
through law and other appropriate means, tution.5
The First CEDAW Impact Study 87Nepal
The Constitution also provides for an ef- duced after the restoration of multi party
fective remedy and procedure of enforcement democracy in Nepal, few provisions were
of rights in cases of infringements by the ex- made for the upliftment of the women in line
ecutive. The enforcement of rights can be re- with Nepal’s commitments to international
alized through an order of the independent conventions.
judiciary empowered with the extraordinary
jurisdiction to protect such rights by issuing Women and Gender Equality Policy for
the writs of habeas corpus, mandamus, cer- Ninth Five Year Plan (1998-2002)8
tiorari, prohibition and quo warranto. The The Government seems to have realized
Constitution also declares itself as the fun- that unless the women are brought into the
damental law of the land, providing that any mainstream of development by integrating
law inconsistent with the provisions of the gender and development into the sector-wise
Constitution shall be void. policies and programs of the country, equal
The extraordinary jurisdiction of the Su- rights of women will not be realized. Con-
preme Court in the Constitution opens av- sidering these issues, His Majesty’s Govern-
enues for widening the concept of locus standi ment of Nepal finalized the policy regarding
in cases of public interest, introducing a women empowerment and gender equality
broader concept of judicial constitutional re- for the ninth five-year plan (1998-2002).
form in Nepal. The main goal of the plan is to achieve
Besides these rights, the Directive Princi- equality through empowerment of women in
ples of State Policy set guidelines for the State social, economic, political and legal fields and
to “pursue a policy of making the female mainstreaming them into national develop-
population participate, to a greater extent, ment.
in the task of national development by mak-
ing special provisions for their education, Mainstreaming:
health, employment” and by providing legal 1. Determination of clear-cut objectives and
aid.6 It may be relevant in this programs in the national and sectoral poli-
context to mention that the cies to mainstream women in the process of
Supreme Court has also said in national development.
State Policy set one of its judgments that even 2. Review and revise the national account-
guidelines for the though the directive principles ing system to compute valuation of unpaid
State to “pursue a and policies of the State can- work of women in the calculation of national
not be enforced by the Court, income.
policy of making the the Court may take it into con- 3. Strengthen and extend the existing insti-
female population sideration the directive princi- tutional capabilities for the effective imple-
ples and issue certain directives mentation of women development programs.
participate, to a against the decisions of the A strong co-ordination mechanism will be
greater extent, in government if the government established with concerned line ministries and
the task of national decides against the directive local level institutions.
principles and policies of the A gender desegregation indicator will be
development by constitution. 7 developed for the monitoring and evaluation
making special of women development related activities.
(ii) Responses in the Policy
provisions for their Formulations Gender Equality:
education, health, Even though the policy for 1. Review and revise all laws discriminat-
employment” and women development was ini- ing against women’s rights so that laws and
tiated from the sixth plan of the regulations are in favor of women.
by providing HMG, the goal for gender equal- 2. Introduce regulations that do not dis-
legal aid. ity has been outlined in detail criminate against women in any way and that
in the Ninth Plan only. In the they affirm full participation and equality of
Eighth Plan which was intro- women.
88 The First CEDAW Impact StudyNepal
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3. Undertake measures to remove institu- aimed at reducing workload and to improve
tional obstacles that hinder women’s partici- productivity of women will be extended by
pation. increasing the access of women to the tech-
4. In national development, reduce gender nology.
disparity, improve and reform legal and ad- Thus, a strong commitment seems to have
ministrative policy, if necessary.
5. To prevent violence against women, gov-
ernment, non-government organizations as
well as local level institutions will implement
been made in the Ninth Plan to review exist-
ing legislation on women and to enact ap-
propriate laws in accordance with the inter-
national instruments. This policy is also based
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women development related activities for the on National Plan of Action prepared, in 1997
protection of women’s rights in an integrated
approach.
6. An institutional set up will be established
for organizing gender sensitization training
in line with the Beijing Summit Declaration
of 1995, by the Ministry of Women and So-
cial Welfare. However, the achievement of
gender equality as specified in the Ninth Plan
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for the policy makers and for implementers. of HMG is yet to be observed.
Empowerment:
1. In the process of planning and implemen-
tation of national development, the partici-
The commitments made by the government
in Beijing9 for the upliftment of women also
clearly states that
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pation of women will be ensured from the The constitutional rights of equality are
grass root to central level according to the being widely exercised. Nonetheless, cer-
provisions in the present Constitution with tain specific laws that infringe upon the
the help of special legal provisions. constitutional provisions shall be identi-
2. The valuable contribution of women in fied and presented to the legislature for
the agriculture sector, a long-term perspective necessary amendments within the next
plan of agriculture, agricultural training mar- two years. The Government will also pre-
keting and agricultural income generating pare and present a Bill within
activities will ensure maximum participation one year to the legislature
of grass root level women. providing equal rights to “The constitutional
3. Access will be extended to ensure healthy women in relation to ances-
life expectancy of women and increased level tral property. Additionally, rights of equality
of quality of health care services and neces- legal provisions in relation to are being
sary services in a life cycle approach. Preven- violence against women, in-
tive as well as curative health care services, cluding those related to traf- widely exercised.
reproductive health and senior women health ficking, shall be reviewed Nonetheless, certain
care services will be strengthened. and the enforcing agencies specific laws that
4. Emphasis will be given to raise the edu- shall be strengthened. Legal
cational status of women through their ac- as well as rehabilitation as- infringe upon the
cess to formal and non-formal education. It sistance to victims of vio- Constitutional
will be improved by providing scholarships, lence shall be supported on
provisions of female teacher and special meas- a broader scale. provisions shall
ures in technical education too. be identified and
5. The participation of women in institu- However, these commit- presented to the
tional development, the opportunities of em- ments made by the government
ployment in the various industry, tourism, are yet to be translated into re- legislature for
forestry, communication, water resources, ality. necessary amendments
education, health, women entrepreneurship
and management training, income generating (iii) Use of CEDAW in the within the next
activities, resources and institutional credit Courts: two years.“
access will be intensified. The basic principle of mod-
6. An appropriate agricultural technology ern jurisprudence says that
The First CEDAW Impact Study 89Nepal
only an efficient and independent judiciary CEDAW in our argument, the Government at-
can protect and enforce the fundamental torneys replied: “Art. 16 of the Convention
rights of the citizens. Lawyers, activists and provides same rights for the spouse in respect
NGOs have filed several petitions with the Su- of ownership, enjoyment and disposition of
preme Court against a number of discrimi- the property and Art 15 guarantees equality
natory legal provisions prevailing in our laws. with men only in the context of administer-
Challenges have been based on CEDAW and ing property. Hence the existing law is not
Article 11 of the Constitution, and there have inconsistent with CEDAW.” Another argument
been cases in which the court issued direc- made in this case was that Nepalese women
tives to the government to prepare Bills with have two statuses in the society. One is be-
necessary changes in the existing laws. This fore marriage and the other after marriage.
has been considered a positive step taken by Before marriage women can inherit parental
the judiciary in the Initial Report of the gov- property once she attains the age of 35 years
ernment submitted to the United Nations. and after marriage she can get a share of her
After a few cases we realized that if we just husband’s property. Hence, it cannot be said
challenge the laws based on provisions in to be a discriminatory provision, the govern-
CEDAW, we might have problems when taking ment lawyers argued.
the matters to the UN level. Hence, we also Article 1 of CEDAW clearly specifies that dis-
quoted the Covenant on Civil and Political crimination against women means any dis-
Rights, which also has an optional Protocol. tinction, exclusion or restriction made on the
Since Nepal has ratified them all, we felt it basis of sex which has effect or purpose of
would be a more effective instrument to use impairing or nullifying the recognition, en-
in the international level. joyment or exercise by women, irrespective
The Supreme Court has interpreted wom- of their marital status on the basis of equal-
en’s rights issues in the cases mentioned be- ity of men and women, of human rights and
low: fundamental freedoms in the political, eco-
A daughter is denied equal nomic, social, cultural, civil or any other field.
inheritance rights under exist- Whereas in this case, the discrimination was
ing laws of Nepal. This provi- the acceptance that women have two statuses
Discrimination sion was challenged in the Su- and providing, all along, for laws based on
against women preme Court in Meera Dhun- the basis of marital status. And while inter-
means any gana vs. Ministry of Law and preting the CEDAW article 2, 3, 4 and 5 should
Justice.10 The Court declared also to be looked into.
distinction, exclusion that the existing provision to In Chanda Bajracharya for Misha Khala v.
or restriction made inherit paternal property is Parliament Secretariat et al11 and Sapana
conditional upon the daughter Pradhan for FWLD v. Ministry of Law and Jus-
on the basis of sex remaining unmarried until the tice12 discriminatory legal provisions of the
which has effect or age of 35 and a directive was penal law, adoption law, succession (legacy),
purpose of impairing issued to the government to discrimination on punishment, divorce and
introduce in the legislature a remarriage were challenged.
or nullifying the Bill within a year reviewing Arguments were made by the applicants
recognition, laws related to property rights. that the above mentioned laws were gender-
enjoyment or exercise At the same time, the Court
also asked the Government to
based and discriminatory laws and therefore
against CEDAW, Civil and Political Right Cov-
by women of take into consideration the pa- enant and Sec. 9(1) of Treaty Act as well as
human rights and triarchal nature of the society, the provisions of the Constitution of the King-
social structure, and fear of dom of Nepal.
fundamental positive discrimination against In the above cases, the Court said that it
freedoms. men. could not be denied that there is a great in-
In this case, when we men- fluence of Hindu Jurisprudence in our legal
tioned Articles 15 and 16 of system, evident from the fact that Article 4
90 The First CEDAW Impact StudyNepal
N
of the Constitution declares Nepal as a Hindu bands of Nepali women. When this provision
Kingdom and that we are devotees of Hindu was challenged, the court said that the provi-
religion. Above all, our religious codes play sion is not only contrary to Art. 11 of the
vital role in determining such matters that are Constitution but also contrary to various in-
mainly influenced by family and social ternational covenants on human rights that
behavior, culture, tradition, activity and con-
duct.
The Court further said that while taking
any steps towards changing the traditions, it
have been ratified by Nepal. However, the
court argued Article 11 of the Constitution is
a general provision and the provision in Part
2 of the Constitution, relating to citizenship,
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is very important to consider the impact of is a specific one. Therefore, the claim that the
the changes in our society and whether our
society can adapt to such changes. The Court
reasoned that if anything not in conformity
with the culture and tradition took place, it
special provision does not comply with the
general provision is not a matter that can be
agreed upon. These are matters of universal
principles. The court did not take into con-
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would ultimately disturb the entire society. sideration Art 9 of CEDAW that ensures women
Similarly, in the second case (Sapana
Pradhan Malla for pro public v. H.M.G)13
Section 26 (1) of the Land Act, 1963 was chal-
lenged. The provision denies rightS to the
with the same right as men to acquire, change,
or retain their nationality. This provision was
once again challenged in Meera Gurung v.
Department of Immigration15 in which the
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daughter and daughter-in-law to be chosen Supreme Court passed a positive judgment
as a tenant by the landlord .The Special Bench declaring the visa laws ultra vires. Subse-
of the Supreme Court interpreted the forego- quently, a new immigration rule has been en-
ing provision as not discriminatory on fol- acted providing for equal provisions to for-
lowing grounds: eign spouses of Nepali women in terms of
1. The tenancy right does not devolve to acquiring visa.
other family after the death of a tenant. Since In each case, the questions of state obliga-
a daughter goes to her husband’s house after tion under the various interna-
her marriage, the policy does not discrimi- tional instruments, Treaty Act
nate against her. and the Constitution were
2. The devolution of the tenancy right to a raised. However, in none of
The judges are not
daughter may have adverse impact on the in- these cases did the court try to keen to recognize
terest of the landowner. develop the jurisprudence of the validity of the
The justification behind not allowing the state obligation under interna-
devolution of the tenancy right to a daugh- tional instruments in the do- treaty under the
ter-in-law was that a daughter-in-law gets the mestic context. And during the national jurisdiction.
right in property from her husband. The arguments, the judges always
Court further directed the government to insisted on what Nepali laws
The court always
present an appropriate Bill in the Parliament say, apparently not very keen asks lawyers to
by taking into consideration the anomalies to recognize the validity of the make arguments
thereof. In this case also the court justified treaty under the national juris-
that the daughter is not a family member, as diction. It also came during this on the basis of the
after marriage she becomes the family mem- research that the court always domestic legislation
ber of her husband. asks lawyers and petitioners to
Benjamin Peter v Department of the Im- make arguments on the basis
rather than the
migration14: The issue in the case was that a of the domestic legislation international
foreign woman married to a Nepalese man rather than the international conventions of
could either acquire citizenship of Nepal or conventions of which Nepal is
extend the period of visa until the nuptial re- a party.16 which Nepal
lationship continued and for three months Despite the negative interpre- is a party.
after such relationship discontinued. How- tation about the status of
ever, similar right was not given to the hus- women in the society, the chal-
The First CEDAW Impact Study 91Nepal
lenges against the existing laws had a posi- mented which includes drafting the Family
tive impact as a result of which women are Court Bill, drafting the Domestic Violence
relatively more empowered. Because of the Bill, a concept paper to establish the women
court decisions in the inheritance right case, commission and the eleventh amendment of
the entire society was forced into rethinking the Muluki Ain, 2020 (Country Code, 1963).
the patriarchal structure, male supremacy, The eleventh amendment of its Muluki Ain
and the status of individual freedom of 2020 was tabled in the Parliament. This
women. Women have begun to be vigilant amendment in the Muluki Ain aimed at pro-
about the issues and link them with the viding property rights to women in the back-
broader issue of equality.17 ground of ratification of CEDAW and the Su-
As a result of judicial interventions, the gov- preme Court’s decision in many cases as speci-
ernment had to submit a Bill in the parlia- fied in its preamble. Unfortunately, Parlia-
ment acknowledging in its preamble itself that ment was dissolved in January 15, 1999 and
its objective was to amend the existing dis- the Bill has lapsed. It is also realised that the
criminatory laws and maintain balance in the Bill drafted by Ministry of Women and So-
society since Nepal was a signatory to the cial Welfare has not been taken seriously by
Convention on Elimination of All forms of the government.
Discrimination Against Women and because Amendment on immigration rules guaran-
the Constitution provided for right to equal- teeing equal rights for obtaining visas for a
ity. spouse is also a positive act of the executive.
However, the question has been raised on The Women and Children cell within the
whether a directive order for the submission police which acts to investigate cases on abuse
of a Bill alone is sufficient to guarantee equal of women and children has been established
rights of women? If the Parliament does not in six district police offices.
pass the Bill what will be the consequence of Gender-sensitization training sessions for
the court order? Will the human rights of government officials are conducted by differ-
women be protected through judicial inter- ent ministries. (A detailed list of activities car-
vention in such an eventuality? How do we ried out by the WID focal point of different
see the interpretation of the court that is more ministries including Ministry of Women and
concerned about protecting patriarchal val- Social Welfare are mentioned in the Institu-
ues than women’s basic human right to equal- tional Mechanism section.)
ity and to live with dignity? Is the judiciary The Human Rights Commission Act 2053
just shifting its burden to other government (1996), enacted by the Parliament, grants the
organs by not declaring the challenged pro- Commission the authority to monitor and
visions ultra vires and by issuing mere direc- implement human rights conferred by differ-
tive orders? Does the judiciary have any role ent international conventions including right
in interpreting or implementing international to equality. But to date, the Prime Minister
conventions through the national courts?18 has repeatedly promised that the Human
Rights Commission will be formed immedi-
(iv) Executive Response ately while the commission has not been
Some steps taken by the Government to formed, effectively turning the law defunct.
fulfill its State obligation under the interna-
tional instruments includes formation of the (v) Legislative Response
Ministry of Women and Social Welfare, in- Special Laws
stitutional setup of Child and Women Devel- The Constitution requires the State to make
opment Council and establishment of Women special provisions for women and children.
Ministry. A strong National Plan of Action It has also incorporated provisions for the
has been prepared by the Ministry of Women reservation of minimum of five-percent can-
for the development of women based on didacy for the Lower House and three seats
Beijing Declaration.19 Under this Plan of Ac- in the upper House. Largely because of the
tion few programs are already being imple- provision, there are seven women members
92 The First CEDAW Impact StudyYou can also read
