Discriminatory Laws in Nepal and Their Impact on Women : A Review of the Current Situation and Proposals for Change - January 2000
FWLD has conducted grave researches in the discriminatory laws of Nepal and has illuminated the repercussions these discriminatory laws will have on women. The study on the “Discriminatory Laws and Their Impact on Women: A Review of the Current Situation and Proposals for Change” was conducted in the year 2000 and became so critical in the advocacy of the issue that the government was finally compelled to form a High Powered Committee to look into discriminatory laws and prepare a Bill. The Eleventh Amendment to the Country Code institutionalized daughter's right to parental property and eliminated a number of discriminatory provisions contained in the code, especially in relation to rape laws, marriage and divorce laws. Other changes were made through the court declaring certain laws ultra vires . However, not all discriminatory provisions had been amended and there still existed discriminatory provisions even within the provisions inserted by the Eleventh Amendment. Thus, many of the laws initially identified as discriminatory continued to prevail. Though a new dimension had been given to laws and government policies and programs in securing gender justice and in creating an equitable society, there seemed to be no change in the basic value system and gender stereotyping in the Nepalese society.
The first update of the study was published in June 2004. The update identified more discriminatory laws and provisions in addition to those identified in the initial study and set aside some provisions that had initially been identified as discriminatory. Moreover, the update of the study incorporated a separate Chapter, Chapter 3 entitled “Concept of Discrimination,” on the conceptualization of the definition of ‘discrimination' given in the CEDAW Convention. The first update of the study was conducted and published with the support of the Ford Foundation.
The second update of the study was carried out in January 2006. This study included not only updated and reformed laws in relation to discriminatory provisions but also incorporated recent judicial pronouncements in various Public Interest Litigations that challenged discriminatory provisions. The study not only mapped discriminatory provisions but also mapped gender biased and degrading use of language against women in the Nepalese laws. The second update of the study was conducted and published through the organization's own resources. The study was an update of the 2000 study on discriminatory laws and their impact on Women which revealed 118 clauses/Sections/Rules, two Rules in the entirety, and 67 Schedules/Annexes/Forms in 54 different laws including the Constitution as being discriminatory against women.
The present study (2006) was conducted with the aim of identifying all remaining discriminatory provisions of the Constitution, 281 Acts and 278 Rules were examined.
Accounting for the amendments made on the basis of initiatives proposed in the 2000 study, our updated research of existing discriminatory laws found 173 Clauses/Sections/Rules, two Rules in their entirety, and 102 Schedules/Annexes/Forms in 83 different laws including the Constitution having discriminatory provisions. Increase of discriminatory laws as compared to the 2000 study, not only due to failure to amend discriminatory laws and continuation of enacting additional discriminatory laws but also due to change in the conceptual framework for determining gender discrimination. The conceptual framework used for the current study takes into account indirect discriminations as well as gender discriminatory language which the prior study did not.
The main areas of discrimination against women are in relation to nationality, property, trafficking and sexual abuse, education, employment, health including reproductive health rights, marriage and family and legal procedure and court proceedings. Two additional areas of discrimination have been identified: discrimination on the basis of identity and in the use of language.
The impact mentioned in this updated study remains for the most part unchanged from our study carried out in 2000. They continue to be relevant despite the Eleventh Amendment to the Country Code. While the Eleventh Amendment has done away with a few discriminatory provisions of law, de facto discrimination against women persists.
The study revealed some of the main areas of discrimination and they were: in nationality (citizenship) rights, in property rights, sexual offenses, women and employment, in education, in health including reproductive health, in marriage and family rights, during legal procedures and court proceedings, identity and in the use of language.
From our research it was revealed that many women and key informants were not aware of specific discriminatory legal provisions and their impacts. However they were aware of and they agreed that there is discrimination against women within the legal system. This lack of information and ability to realize, articulate and support one's beliefs is not very surprising or unusual in Nepal because of the low rate of literacy among women and the lack of an effective information system to sensitize and educate people on gender issues including legal knowledge. Based on an analysis of the impact of discriminatory laws on women it was easy to infer that the impacts of discriminatory laws are a result of the formal approach to equality.
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