Critical Analysis of Concept Papers through Womens Perspectives

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Critical Analysis of Concept Papers through
Womens Perspectives

• Sapana Pradhan Malla
• Member, Constituent Assembly

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Womens Perspectives and constitution

• Are women comfortable in using law?
• Is law important for women?
• Why womens perspective is critical in making
  constitution?

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Addressing Womens Rights through
Constitution-making

• Natural law is the basis of formation of modern
  constitutions, therefore womens participation
  and contribution to society cannot be overlooked
  or excluded.
• Women are equal but different.
• Womens experiences are exclusive therefore
  specific rights should be acknowledged and
  incorporated addressing such experiences.
• The following should be ensured in
  constitution-making through a womans
  perspective
• Possibilities of translating constitutional
  guarantees in laws/ rules/ procedures (due
  diligence)
• Creation of institutions for promotion of rights
  and empowerment
• Allocation of resources
• Creation of monitoring mechanisms for effective
  enforcement
• Building capabilities of citizens
• Changing the mind set and values existent in
  society.

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Can specific provisions related to women alone
ensure protection of their rights ?

• All provisions are equally important Equality
  can be achieved only when all provisions of the
  constitution can be equally accessed by women, or
  be implemented in their context, e.g.
• Preamble Recognition of social context,
  identification of goals for the constitution and
  vision of constitution to achieve the goals
• Corruption is one of the barrier in ensuring
  social justice and unless a mechanism such as
  CIAA addresses such issues women will continue to
  be deprived of their rights.
• Court To ensure justice for all citizens
  including gender justice
• Human rights commissions - To monitor the
  implementation of the law protecting rights of
  citizens, including women
• Federalism - Devolution of power to states
  created on the basis of identities where women
  are a cross-cutting category
• Emergency Though providing the state unlimited
  powers, requires the continuance in exercise of
  rights such as right to equality or right to life
  with dignity and without torture.
• Supremacy of Constitution not only conflict of
  law but also conduct and practices
• Religion and pluralism

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Percentage of Total Number of Constitutional
Assembly members
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Representation of Women Members in Different
Committees of Constitutional Assembly
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1. Opinions of CA members on Draft Constitution
of National Interest Preservation Committee
Female 52 Male 104 Total 156
Invitees 11, Female 0, Male - 11
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2. Opinions of CA members on Protection of
Fundamental Rights of Minority and Marginalized
Committee
Female 53 Male 109 Total 162
Invitees 10, Female 2, Male - 8
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3. Opinions of CA members on Determining the Base
of Cultural and Social Solidarity Committee
Female 59 Male 107 Total 166
Different opinion Language MJF, TMLP Khas
Hindi should be official language. Lila Kumari
Bagale Right to Edu - State obligation Right to
Indigenous/ Janajati ILO 169, Land, water and
jungle
Invitees 18, Female 2, Male - 16
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4. Opinions of CA members on Draft Constitution
of Committees on Determining the Constitutional
Bodies
Female 46 Male 87 Total 133
Invitees 28, Female 5, Male - 23
Different Opinion Meena Pun Bhanubhakta
Jaisi Instead of Federal Commission
word National Commission should be keep.
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Current Processes Concepts for Consideration

• National Interests
• Constitutional Bodies
• Social and Cultural Unification
• Marginalized Groups

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NATIONAL INTERESTS
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Treaty Jurisprudence Recommendation and Lacunae

• At present the Committee on Protection of
  National Interests has proposed providing
  international treaties priority over national
  laws in implementation directly through the
  forthcoming Constitution ( recognising Monistic
  approach).
• The language is however ambiguous suggesting that
  on the commencement of the constitution all
  international instruments need to be ratified
  according to the provisions under this
  constitution.

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Treaty Jurisprudence Importance

• International treaties brings universal
  principles and accoutability in protecting and
  promoting inherent right
• Nepal is a party to 21 treaties including CEDAW
  as a specific instrument for women.
• CEDAW has been used through court interventions
• constitutional reformulation it is important to
  incorporate principles under CEDAW in
  articulating rights under the forthcoming
  constitution.

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National Security

• The security of a nation is not utopian but
  requires engagement with the society.
• The primary role of law is to set and create
  norms and promote the overall welfare of the
  society. Deviant behavior is therefore punishable
  under the law.
• Important issues pertaining to women and security
  that need to be considered
• Who sets the norms?
• What is considered to be deviant behavior?
• What are the appropriate forms of redressal?
• The specific need is to provide equal platform
  for addressing violation of womens rights within
  both public and private sphere under the law,
  thereby addressing womens experiences within the
  framework of national security.
• Further, representation of women in the army as
  well as law enforcement systems such as the
  police, directly reflect upon the right of equal
  participation in the security of the nation.

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Sovereignty, Integrity National Unity

• The above elements are essential to any
  independent state and reflect the relationship
  between the state structure and its citizens.
• Women as equal actors in any society hold equal
  role in upholding the sovereignty, integrity and
  unity of a nation.
• However the same elements are often used to
  defeat or deny rights to women, e.g. on the issue
  of citizenship sovereignty and national unity are
  used as arguments to deny right of a woman to
  transfer citizenship to their husbands who may be
  foreign nationals.
• The recognition of women as equal citizens can be
  depicted through the language used to articulate
  the above elements under a constitution. E.g. the
  Committee on the protection of National Interests
  has suggested that the terms Rashtrapati be
  replaced with Rashtrapramukh but still used
  some biased language
• Immunity to diplomats vs violence against women
• No right as a landlocked country ( food security)
• .

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Self Determination

• The concept was originally related to autonomy of
  the state
• However in current times and in the perspective
  of international human rights framework, self
  determination and autonomy relates to group
  rights and rights of individuals
• Therefore womens right to self determination on
  the basis of their sexual identity as well as
  their bodily autonomy should be respected.

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CONSTITUTIONAL BODIES
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Constitutional Commissions The Need

• Three conventional arms of the state were
  essential to the structure of constitutions.
  Notions of limited, accountable and transparent
  government requires independent monitoring
  systems for the state structure.
• Constitutionally mandated body support
  constitutional democracy through a system of
  check and balances.
• Experiences of establishing monitoring mechanisms
  through delegated legislation in countries such
  as Hong Kong, India, etc. depict certain
  short-comings
• Restriction of mandates on the basis of
  allocation of budget.
• Politicization of appointment to office thereby
  lack of accountability
• Inability to check government inaction or to
  suggest legal reforms due to political
  maneuverings.

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• In Nepal, the need arises from the following
• Current ambiguities in appointment process, e.g.
  appointment to existing committees on the basis
  of proportional representation except for Women
  Commission which consists of all women members.
  In the current structure, it is unclear as to how
  inclusivity shall be maintained ensuring
  representation from all cross-cutting groups.
• Appointment takes place through constitutional
  council which is entirely a male dominated
  structure.
• Lack of transparency and accountability in
  appointment process and in delivery of official
  duties.
• Lack of gender sensitivity in the functioning of
  existing commissions.

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Commissions Proposed under the Forthcoming
Constitution

• Commission for the Investigation of Abuse of
  Authority (CIAA)
• Financial Commission
• Public service commission
• Election Commission
• Human Rights Commission
• Women Commission
• Dalit Commission
• Indigenous ethnic Commission
• Disability, minority, marginalized and backward
  group and region commission
• Madhesi Commission
• Muslim Commission

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Constitutional Bodies Issues to consider

• Womens Commissions v. Equality Commissions
• The objective is to ensure holistic approach
  towards womens experiences of discrimination and
  disempowerment.
• Formation and Appointment of members
• Parliamentary system of appointment vs.
  Constitutional Council

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SOCIAL AND CULTURAL UNIFICATION
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Basis for Unification

• Geographical classification vs. Human values for
  unity, harmony and happiness
• Language, Culture, Religion, Education,
  Literature, Art, Sports, Identity etc.
• How best to make the above categories
  women-friendly?

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Cultural Rights Women

• Protection of cultural rights are important under
  the constitution.
• However cultural rights have often been used as
  arguments to deny women specific rights to life,
  and dignity.
• Therefore in guaranteeing cultural rights a
  hierarchy should be maintained in protecting
  womens inherent rights to equality and life with
  dignity first and foremost. Thereby recognizing
  their perceptions of cultural rights and
  tradition.
• The current concept on social and cultural
  unification for the forthcoming constitution
  fails to mention social and cultural relativism
  in protecting fundamental rights of citizens.
• Issue of concern How to counter fundamentalism?

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Secularism

• Thus far, laws and law enforcement has been
  influenced by religious values
• Secularism should also right to religious
  practice and also to be free from religious
  practice
• Right to be free from religious discrimination
  and violence
• Personal Laws vs. Uniform Civil Code

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Social Justice Social Security

• The barriers to development of human capacities
  directly affect the overall development of the
  state.
• In recognition of the forms of discrimination and
  disadvantages faced by women in their entire life
  cycle, it is essential for the state to identify
  specific barriers to economic empowerment as well
  as access to resources and benefits.
• The Interim Constitution had provided in specific
  social security for women amongst other
  marginalized groups.
• The Committee on Social and Cultural Unification
  has however in recommending social security
  failed to identify women as a category requiring
  specific attention.

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MARGINALISED GROUPS
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Protection under the Interim Constitution

• The term marginalized group is not well defined
  and does not refer to women in specific.
• It also failed to acknowledge intersections
  between marginalized groups on the basis of
  multiple identities.

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Marginalisation Based in concepts of Equality
and Non-discrimination

• While equality is understood to be equality
  before the law and equal protection under the
  law, it has long been acknowledged that
  historical barriers and discrimination have
  restricted the realisation of the right of
  equality.
• International law on human rights have seen the
  emergence of group rights on the basis of common
  forms discrimination and disadvantages that
  required specific address.
• Women are however cross-cutting as identities
  within specific marginalised groups, e.g. women
  with disabilities, dalit women, women belonging
  to religious minorities.
• Women can also be considered as minorities in
  terms of representation of issues, e.g. women
  with alternate sexual preferences.

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Lacunae in recommendations

• The Committee on Protection of Rights of Minority
  and Marginalised Groups has for the first time
  attempted to define marginalized groups and
  stated gender and sexual identity to be grounds
  on which they have been disadvantaged.
• However the concept of non-discrimination and
  equality has not been looked into carefully.
• The definition of non-discrimination includes
  basis of marriage and pregnancy but does not
  include sexual orientation, social construction
  etc.
• Definition of equality does not include de facto
  equality and equality in result. Therefore mere
  identification of marginalized groups will not be
  effective.
• Special measures are mentioned only through the
  enactment of law and does not mention women as
  specific group requiring protection.

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• Emergence of some of third generation of rights
  under the international humans rights framework
  has not been reflected in the proposal for the
  forthcoming constitution.
• Principles under CEDAW have not been reflected
  including definition of discrimination against
  women, or the concepts of permanent and temporary
  measures for women .
• Inconsistent definitions and duplication of the
  following concepts
• Minority
• Marginalisation
• Exclusion
• No definition of Inclusion and proportional
  representation is yet to be clarified
• Inclusion as a concept has not been linked with
  empowerment of citizens
• Though there is a mention of non-racial but no
  mention of non-sexist within the definition of
  nation
• Lack of clarity on citizenship. Proposed
  provision on citizenship has failed to
  acknowledge the exclusive identity of women.

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Lastly Need for Substantive Equality

• Framework to recognize womens different needs
• Context of discrimination ( past and present)
• Experiences in Public Private
• Permanent and temporary special measures
• State accountability in addressing socio-cultural
  prejudices

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Citizenship

• Non-recognition of equal identity
• Constitution provisions are gradually becoming
  more restrictive

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Legislative Body

• Representation ensured under proportional
  election in lower house.
• 33 ensured in result.
• No reservation in candidacy for direct election
• In Upper House
• provinces (38 seats)
• Among well-known personalities (13 seats)
  proportional representation ensured
• One amongst the Chair and Vice- Chair of both
  houses has to be a woman.
• Different Opinion of Women
• Need to clarify stand of women on proportional
  representation or 33