March Analysis: Human Rights and Gender and Social Inclusion

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The month of March ended without a single bill being endorsed in the Parliament and without any general discussion on the impeachment motion against Chief Justice Rana as PM Sher Bahadur Deuba administration decided to prorogue the winter session of the parliament. Consequently, Ordinances to tackle crime against women which were brought before the house for the second time on December 22, 2021, have become inactive. While a high profile rape case garnered attention when actor Paul Shah was arrested by the District Police Office, Tanahun, for allegedly raping a 17-year old singer; incidents of rape, sexual harassment and paedophilia have come to light in Morang district of late. Lastly, The Ministry of Health and Population has launched a programme to give an allowance to each kidney, cancer and spinal injury patient. Nepal law commission proposed an amendment to section 103 of the National Civil Code 2074, which has rekindled the public debate on discriminatory nature of law towards woman.

Timeline of Major Events

DateEvents
1 March 2022The reports on the occurrence of cases of killing of minors after rape or sexual violence has increased.
2 March 2022Parliament may endorse crucial pending bills now despite UML’s obstruction.
7 March 2022Acid and Other Fatal Chemicals (Regulation) Ordinance 2020 have become inactive due to lack of approval from the parliament.
7  March 2022The government is preparing to move ahead with the parliamentary process of the Citizenship Bill.
15 March 2022Sher Bahadur Deuba administration decided to prorogue the  session of Parliament without a single bill being endorsed and without any general discussion on the impeachment motion against Chief Justice Rana.
21 March 2022Violent mob attacked a policewoman to death in Morang during an investigation process.
22 March 2022Proposal to amend section 103 of the National Civil Code, 2074: divorcee woman to relinquish property acquired by her ex-husband if she remarries.
28 March 2022President inaugurates Judicial Committee National Conference.
30 March 2022New programme to give an allowance of Rs 5,000 a month to each kidney, cancer and spinal injury patient.

Negligence of Constitutional Duty

After much deliberation in the Parliament, the government planned to end the parliament session with the endorsement of important bills like: the Acid and other Harmful Substances (Regulation) Ordinance and Ordinance to amend the laws on rape by increasing the penalty including a three-year jail term for those attempting to settle rapes cases out of court in the National Penal Code, 2017 (2074). However, the Sher Bahadur Deuba administration on March 15, 2022, decided to prorogue the ongoing session of Parliament without a single bill being endorsed.

The aforementioned Ordinances were brought before the house for the second time on December 22, 2021, and have become inactive due to lack of approval from the parliament within the minimum stipulated period of 60 days as per the Constitution of Nepal 2015.

Photo: RSS

Likewise, the bill to amend the Nepali Citizenship (first amendment) ordinance, 2021 has been pending in parliament for two years. On March 8 2022, Home Minister Bal Krishna Khand took an initiative to forge a consensus on the bill relating to the amendment of Nepal Citizenship Act, 2006On the occasion, Minister Khand stated that the government has been taking initiative to enact the amendment. According to a statement made by an official to the Kantipur; there exists different points-of-view amongst the political parties regarding the bill that is designed to amend the Nepal Citizenship Act 2006. In the absence of consensus and understanding within the alliance, the bill cannot be passed.

Lapse of ordinance has led to legal vacuum and the victim is devoid of any socio-legal protection. Government should be more proactive in passing laws of significance such as those on the violence against women, so as to deter the occurrence of such crimes by severely punishing the perpetrators.

In any event, ratification of crucial bills, which if not endorsed on time, could bring about a perception that the parliament is neglecting its constitutional duties on its behalf.

Additionally, the session was concluded without any general discussion on the impeachment motion against Chief Justice Rana. In the motion, the ruling party lawmakers have made 21 allegations against Rana in an attempt to justify why he should be impeached. It can be argued that delay in the impeachment process may deprive CJ Rana of his right to speedy justice and create a deadlock in the judicial system.

Violence Against Women

A high profile rape case garnered attention towards when actor Paul Shah, was arrested by the District Police Office, Tanahun, for allegedly raping a 17-year old singer, with a false promise of marriage. On March 24, Tanahun District Court sent the actor to judicial custody for investigation. According to Section 219 of National Penal Code, 2017, where a man has sexual intercourse with a woman whose a minor even with her consent, the man shall be considered to commit rape on such woman or girl child. Under the Code, the age of consent is 18 years.

Aside from the above mentioned case of statutory rape, incidents of rape, sexual harassment and paedophilia have come to light in Morang district of late.

Police arrested two youths on charge of abducting, raping and killing an 18-month-old girl from Morang.

  1. year-old girl from Morang was sexually assaulted by a 56-year old school teacher who has a previous record of sexual harassment allegation but was pardoned by the school administration. In the present case, when the police went to the school to investigate, they were accused by the locals of trying to protect the perpetrator and were assaulted by a violent mob resulting in the death of a policewoman.

As evident in the present case, impunity not only enables perpetuation of  violence but also erodes public trust in the justice system to an extent that a police officer becomes a victim of mob rage.

In the first seven months of current fiscal year, almost, 1,300 rapes were registered with the police out of which 40 percent were minor girls.

It is pertinent to note that, in addition to the law, society must also play a role in the prevention of such crimes. While it is important to stick to the letter of the law with regard  to rape and sexual assault, it is also to be noted that the problem lies in the mindset of the perpetrator as it is not natural for an adult to get aroused or receive sexual gratification from children who have neither biologically developed nor have an understanding of sexual behaviour. Thus, the capability of abducting, serially raping and brutally killing a child is a perverted, egotistical, sociopathic sadist act with no sense of empathy or guilt says expert on mental health and behavioural sciences.

Law and Society

Proposal to Amend Section 103 of the National Civil Code, 2074

In another interesting development, the Nepal law commission proposed an amendment by adding a sub- clause (a) to section 103 of the National Civil Code, 2074. The amendment proposes that if a divorced woman remarries, the property taken from her ex-husband should be returned to her children with ex-husband and in the absence of her children with the ex-husband should be returned to ex-husband or to the next of kin of the ex-husband.

The proposal has been criticized by the women’s rights activists on the ground that it reflects the patriarchal mindset of the society. However, an alternative viewpoint is that the proposal has been introduced in order to curb abuse of legal provision thereby leading to equal protection for both the genders.

Allowance of Rs 5,000 a month to each kidney, cancer and spinal injury patient

The Ministry of Health and Population made a decision to give allowance for kidney, cancer and spinal injury patients. It is pertinent to note that, not all Patients with cancer, spinal paralysis and kidney disease will be given monthly allowance, there are certain exceptions to it. To avail the service, beneficiaries are required to submit a copy of National Identity Card or Certificate of Citizenship, a copy of birth certificate in case of minor and application to the ward office along with the recommendation of the doctor. The amount specified by the government will be deposited by the local government in the bank account.

While this is a good initiative from the government but there may appear some challenges in it’s implementation. For example, lack of citizenship or birth certificate could be a major hindrance for the poverty stricken citizens to avail this benefit. The lack of citizenship has deprived people of access to public services, social service including problems in opening bank accounts, enrolment in schools and applications for employment.

Additionally, lack of transportation services in the rural part of Nepal may create hardship for the sick beneficiaries to travel to the Bank to receive their allowance. Many settlements in rural Municipality may not have motorable roads and  banking services including e-banking. The program is not clear if the beneficiaries have to be physically present to receive the allowance at the designated banks or the allowance can be received on their behalf. 

First National Conference of the Judicial Committee

President Bidya Devi Bhandari virtually inaugurated the first national conference of the judicial committees of the local governments. The purpose of the conference was to discuss the practices adopted and challenges faced by the Judicial Committee during its tenure and to formulate necessary strategies to resolve the problems at the local level. However, the deliberations at the conference have not been made public as yet.

Article 217 of the Constitution envisaged the creation of Judicial Committees in each of the 753 local level units. The purpose behind judicial committees  is to ensure delivery of justice, in every sense of the word. The very idea of federal restructuring of Nepal was driven by the intention to decentralize and devolve authority and power down to the local level. Therefore, the constitution also specified that judicial powers be devolved along with executive and legislative powers. It has enumerated jurisdictions for the local level too.

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