May Analysis: Human Rights Gender and Social Inclusion

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Timeline of Major Events

DateEvents
18 MayHouse panel calls for gender-responsive budget.
20 MayFreelance make-up artiste alleges beauty pageant organiser drugged, raped her.
20 MaySolidarity Protest in front of Prime Minister’s residence: call for amendment in the rape laws.
23 MayMinister pledges amendment to rape law in current parliament session.
29 MayFinance Minister Janardan Sharma presented an annual budget of Rs 1.793 trillion for the fiscal year 2022/23.

Violence against Women

Series of videos went viral in social media where an aspiring model claimed she was drugged and raped by an organiser of the beauty pageant multiple times in 2014 when she was 16 years old. This incident which has come to light after 8 years has shaken the whole nation to the core. Serious concerns have been raised on social media platforms about whether the rape case can be filed in court owing to the limitation imposed by law.  The video which appeared across social media infuriated the public, with people coming to the streets to voice their overwhelming support to the victim. A solidarity protest took place near PM residence demanding the removal of the statute of limitations for rape and sexual violence and called for action against the guilty. The protest has drawn the attention of the Nepal police. However, in the absence of the official complaint from the victim, the police cannot investigate the case. Nonetheless, the Ministry of Home Affairs had directed Nepal Police to form a high-level team to initiate a probe.

In the present scenario, since the victim revealed the incident of rape after eight years, the statute of limitations prohibits the Nepal police from charging the accused of rape. However, under pressure after widespread protests and the House of Representative directive, police arrested Manoj Pandey- one of the key suspects into custody for investigation. He has been arrested under the Human Trafficking and Transportation (Control) Act 2007 (2064) as there is no statute of limitation to register compliant of sexual and physical exploitation of a person under this Act.

The prevalent culture of stigma, shame, intimidation, and trauma has long prevented women from speaking out and reporting cases of sexual harassment cases on time. In many such cases the victims do not want to go beyond naming and shaming the alleged offenders and lodge a formal complaint. Nonetheless, an official complaint is prerequisite for Nepal Police to start an investigation into sexual violence and rape. As per law, such a complaint must be filed within a year of the incident. If the claimant fails to bring the action before the court within a specified period of time, such claim can be “time-barred”. A statute of limitations is a law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings from the date of an alleged offence, whether civil or criminal. When the statute of limitation expires, the courts have no jurisdiction over the matter. The intention behind creating the statute of limitations is to resolve the case within a “reasonable period of time” so that the case does not go beyond a specific length.  Additionally, statutes of limitations were enacted in part to prevent convictions based on “untrustworthy witness testimony,” such as memories of incidents that occurred years ago.

Women plowing sugarcane in Myagde village municipality-3 Dhayare. Photo: RSS

The intention behind creating the statute of limitation may seem justified as it aims to prevent the miscarriage of justice. However, in an offence of rape, period of limitation creates a legal barrier to access justice by the victim; taking into account the stigma that women and girls face when reporting cases of sexual  crimes. Therefore, considering the socio-cultural factors, it is imperative to extend the statute of limitation provision so as to ensure effective access to justice for rape and end the culture of impunity. At the same time, the policy makers should also keep in mind the accused’s legal right to defend himself, while drafting the laws relating to limitations.

Action to reform rape laws to ensure Justice

The Women and Social Affairs Committee of the House of Representatives has directed the government to immediately bring the necessary bill in the parliament to amend the existing laws to remove the statute of limitations to register rape cases.  Minister of Law, Justice, and Parliamentary Affairs Govinda Bandi has directed the Nepal Law Commission to submit a study report and make recommendations on extending the statute of limitation in rape cases. Based on their recommendations, the ministry will begin the process of amending the law.

Prior to 2017, Nepal had 35-day statutory limitation for prosecutors to file a charge sheet for a rape. In the year 2017, government drafted the new penal code amending the existing Muluki Ain, which further increased six months of statute of limitation on rape cases. In the Muluki Criminal Code 2017 which came into effect in August 2018, the statute of limitations was increased to one year. According to legal experts, a year period is still among the shortest limitation periods in South Asia.

In this background it is pertinent to note that, in the year 2008, division bench of Supreme Court had issued a directive order in the name of the Government of Nepal stating that “there should not be any limitations for rape victims to file complaints and for the police to begin investigations since it is a crime against humanity.”  Nepal authorities failed to comply with the Supreme Court directives. After 14 years of the judgement, the Ministry has finally come to an agreement to amend the provision of limitation. Whether the provision of limitation in rape cases will be removed or increased in the near future, remains to be seen.  Having said that, the ongoing issue is also an indication that changes in official policy, leading to changes in laws and regulations, are more often than not motivated by public pressure.

Gender- responsive budget for the new FY 2022-23

During the discussion on the Federal Budget for the new FY 2022/23, the lawmakers of the House of Representatives underlined the need to make collaborative efforts to achieve gender-responsive budgeting (GRB) in the upcoming budget, policy and programmes. The Women Committee of House of Representative has directed the National Women Commission and the Minister of Women, Children and Senior Citizen  to prioritise women related issues such as reconsideration of tariffs in the import of sanitary pads and silicon cups, to ensure the rights of sexually marginalised communities, reducing gender-based violence, minimising maternity and child mortality rate. 

In the FY 2021/2022, the proportional share of the budget for the Ministry of Women, Children and Senior Citizen was one of the lowest amongst the social sector allocations, with an expenditure of Rs. 9079 million. The share of federal budget was allocated to eliminate all form of sexual and gender-based violence including dowry system by undertaking awareness programs.

In the FY 2022/2023, a budget of Rs 1.77 billion has been allocated for the Ministry of Women, Children and Senior Citizens. Investments shall be made towards distribution of one electric stove (as a grant) to each family; development of Nepali sign language; sign language and braille textbooks to be available for free.

Furthermore, a policy of positive discrimination has been incorporated in the budget for senior citizens, single women, differently-abled people, Dalits, indigenous groups and children below 5 years of age. Rs. 1.34 billion has been allocated for social security allowances for the benefit of the above mentioned categories. There has been a change in the age limit for availing the old age allowance. The old age allowance will now be allocated from the age of 68 years, previously it was 70. However, the contribution-based social protection fund launched by the government of Nepal is yet to attain the expected success. One of the reasons being the contradictory provision stipulated in schedule 9 of the Constitution of Nepal 2015 and the Social Security Act. Schedule 9 of the Constitution lists social protection as a common right of the federal, state, and local levels. On the other hand, the Social Security Act only clarifies the role of the local governments in the management of the distribution of security allowance. Critics argue that the federal government should be involved in the management of the allowance’s distribution to attain the desired goal.

There has also been change in tax related provisions wherein the customs duty on pads has been reduced by 90 percent. According to the finance minister, a significant discount has been made on the import duty on raw materials required for the sanitary pad manufacturing industry in Nepal. Additionally, the sanitary pads to be distributed as per the program approved by the government or public bodies should be purchased from indigenous products. In the FY 2021/2022, progressive investments were made towards menstrual hygiene and health. INR 4.79 billion was allocated free distribution of menstrual sanitary. In this background it is pertinent to note that, when Sher Badhur Deuba-led government approved a replacement bill to amend the annual Nepal budget plan 2021/22, the approval of the budget subsequently increased the price of sanitary pads in the market, which led to protest demanding tax rebate on sanitary pad.

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