As International Women’s Day (IWD) is being celebrated, the world leaders need to pause to check and analyze if the domestic and international laws formulated to safeguard the rights and address the concerns of women have been fully implemented or they remain mere black letters of the law.
International Women’s Day (IWD) is observed globally on March 8 to recognize the social, economic, cultural and political empowerment of women. IWD was celebrated for the first time by the UN in 1975, during International Women’s Year. This year’s theme is “gender equality today for a sustainable tomorrow.”
Globally women have become more concerned about their rights and they have stood against all forms of discrimination and violence perpetrated on them. A United Nations treaty that is critical in accessing the progress of the government in eliminating discrimination is the ‘Convention for Elimination of All forms Discriminations against Women’ (CEDAW) which was adopted in 1979 and which later became an international bill of rights for women on September 3, 1981, upon ratification by 189 states. Ratified by Nepal in 1991, this treaty is regarded as a powerful international tool to ensure gender equality and mitigate violence against women.
Besides, there are a number of human rights-related international laws, which have influenced the global movement for women’s rights. Yet, the status of women has not changed much. From ancient holy scriptures-to-current deities, female figures are hailed as mothers. For example, the great festival of Dashain, observed by Nepalis with great zeal, worships goddess Durga as ‘mata’ (mother). This culture of giving respect and worship remains within the four walls of the temple. Women in the war
In the midst of the horrors of the Russian war on Ukraine, Ukrainian women and children are the first vulnerable groups to suffer the brunt of the Russian invasion, bombarding and airstrikes. Media reports reveal that Ukrainian women across the nation, from politicians to beauty queens, have taken up arms to defend their motherland. Even expecting mothers have suffered due to bombarding and devastations. A Ukrainian woman gave birth to a baby girl while taking refuge in an air-raid shelter in Kyiv. The United Nations Charter, which was signed on June 26, 1945, and entered into force on October 24, 1945, obliges the states to maintain international peace and security and to go for settlement of international disputes by peaceful dialogues and means. The Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), CEDAW, Geneva Convention among other international humanitarian laws cast an obligation on the states to respect the human rights of women. As things stand, these laws have been blatantly ignored in the ongoing war.
Internationally, the Russian invasion has been heavily criticized. Nepal voted in favor of the UN resolution on the Ukraine crisis at the UN General Assembly held on March 3. Nepal was among 141 members who voted against the Russian invasion of Ukraine. There were 35 abstentions, including India and China. Earlier on February 24, Nepal condemned the Russian invasion saying that the “principles of sovereignty and territorial integrity as enshrined in the UN Charter are sacrosanct and must be fully respected by all member states.”
John Austin, the founder of the Analytical School of Jurisprudence, called international law a “positive international morality.” He said the law is the command of the sovereign and in the indeterminacy of the sovereign at the international level and the lack of coercive force makes international law a mere positive morality. Russia’s arbitrary invasion of Ukraine suggests that Austin was right in holding that international laws are weak laws that could be violated by the (powerful) states.
Thus, we all need to work for the actual implementation of UN conventions and international laws. Otherwise, the celebration of women’s day will be nothing more than a formality.
International conventions and Nepal
The United Nations Charter signed on 26 June 1945 explicitly speaks for gender equality. The preamble says “we, the people of the United Nations…” aim to ensure equal rights of men and women. Article 1.3 stresses the need of prohibiting every form of discrimination.
The Commission on the Status of Women (1946) is the principal global intergovernmental body exclusively dedicated to the promotion of gender equality and women empowerment. A functional commission of the Economic and Social Council was established in 1946 to promote women’s representation and rights in every field–political, economic, social and educational.
However, these goals cannot be achieved without ensuring the political representation of women in the legislative sphere. The 1952 Convention on the Political Rights of Women specifically deals with the electoral rights of women, guaranteeing the right to vote and be voted without any distinction. Major international conventions and their objectives have been listed below..
|1.||Convention on the Nationality of Married Women (1957)||To ensure nationality of married women for assuring equality between men and women to prevent statelessness at the instance of marriage|
|2.||Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (1979)||To achieve gender equality to put an end to women’s discrimination and violence committed on CEDAW has been established to ensure the implementation of CEDAW provisions.|
|3.||Optional Protocol to CEDAW (2000)||Signatory states to recognize the competence of the Committee on CEDAW, by ratifying this protocol, to receive and consider complaints from individuals or groups|
|4.||UDHR (1948)||All humans are born free and equal|
|5.||ICCPR (1966)||To combat violence against women to ensure equal civil and political rights to men and women|
|6.||ICESCR (1966)||To ensure just and favorable working conditions, remuneration, equal opportunity to every woman to provide rest, leisure, reasonable limitation of working hours and periodic holidays with pay as well as remuneration for public holidays|
Acknowledging CEDAW, the drafters of the 2015 Constitution of Nepal have included ample provisions to ensure the rights of women, including that of the right to equality and participation. The preamble of the Constitution takes the pledge to end all forms of discrimination and gender bias. In a similar vein, the equality clauses and affirmative action clauses of the Constitution seek to ensure adequate representation of women in public life. To be specific, Article 38 provisions that all the rights relating to women shall be fundamental rights.
Article 38 guarantees a plethora of fundamental rights to women. It includes the equal right to women in lineage, right relating to safe motherhood and reproductive health, right to participate in all state structures on the basis of the principle of proportional inclusion, right to special opportunity in spheres of education, health, employment, and social security on the basis of positive discrimination and right to property and family affairs of both spouses. Moreover, the charter also provisions that the victims shall have the right to seek compensation from the outliers.
Second, Nepal reserves for women 33 percent of positions in the legislative spectrum under Article 84(8). In yet another breakthrough, the charter in Article 70 envisages that “while conducting the election of President and Vice-President under this Constitution, the election shall be held so as to represent different gender or communities.” As such, Bidya Devi Bhandari is the incumbent President of Nepal while Nanda Kishor Pun holds the office of the Vice President.
Interestingly, a similar arrangement has been made for the selection or election of Speaker and Deputy Speaker of the House of Representative, Chairperson and Vice-Chairperson of the National Assembly and Mayor and Deputy Mayor of the municipalities among other (elected) executive offices.
Given the constitutional obligations, Nepal will surely succeed to increase the participation of women in politics and public life. But the process won’t be easier and swifter without the smooth implementation of laws.
Article 18 (1) enshrines a general principle of equality before law and outlaws every form of discrimination. The succeeding clauses (of Article 18) specifically forbid discrimination on the ground of sex. Also, the charter allows the state to positively discriminate in favor of women by enacting special laws to improve their social conditions and ensure social, economic and political justice.
In Nepal, 91.7 percent of the legal frameworks that promote, enforce and monitor gender equality under SDG indicator, with a focus on violence against women, are in place. As of February 2021, 32.7 percent of seats in parliament were held by women. A study shows that 61.9 percent of women of reproductive age (15-49) had undergone family planning in 2019.
Although the legal age of marriage for both sexes is 20, more than a third of young women aged 20-24 report that they were married by the age of 18 and over one in ten by 15. Nepal has one of the highest rates of child marriage in Asia—for both girls and boys. Nepali boys are among the most likely in the world to be child grooms. More than one in ten is married before they reach 18.
The Nepal Living Standard Survey 2010-2011 has revealed that Nepal has an adult literacy rate of 65.9 percent with a huge gap between men and women. While the male literacy rate is 75.1 percent, it is only 57.4 percent for women. This shows that the government intervention is weak in mitigating gender disparity and educating women.
Given the constitutional obligations, Nepal will be able to succeed to increase the participation of women in politics and public life but the process won’t be easier without swift and smooth implementation of laws.
Case of the US and India
Internationally too, women have felt the brunt of discrimination. From developed states to developing ones, the situation remains almost the same. Take the example of the United States. Justice Bradley of the US Supreme Court in the case of Bradwell v State of Illinois (1872) held that the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations in civic life. The paramount destiny and mission of the women are to fulfill the noble and benign offices of the wife and mother. This is the law of the creator. In this case, Bradwell, a woman lawyer, was denied advocate’s license by the state of Illinois. The US Supreme Court argued that such a restriction imposed by Illinois state was not in contravention to the Fourteenth Amendment to the Constitution of the United States. Bradwell was admitted to Illinois Bar in 1890 and was granted a license to practice before the US Supreme Court in 1892.
Considering the instances of gender discrimination, the US Supreme Court was of the view that the woman’s physical structure and the performance of maternal functions place her at a disadvantageous position for subsistence. It is still true that in the struggle for subsistence, she is not an equal competitor with her brother. She will still be where some legislation to protect her seems necessary to secure real equality or right, held the Supreme Court in Muller v Oregon (1908). In this case, the constitutional validity of one of the Oregon laws, which prohibited women from working more than 10 hours a day, was in question. The Court validated the law on the ground of being consistent with the due process clause envisaged under the Fourteenth Amendment to the US Constitution.
In 1961 Hoyt v Florida case, the US SC upheld a law placing a woman on the jury list if she made a special request because as put by Harland, J, “a woman is still regarded as the center of the home and family life.”
In the US, the 19th amendment to the US Constitution (passed by Congress on June 14, 1919, and ratified on August 18, 1920) guaranteed all American women the right to vote. The 14th amendment (1868) of the US constitution advocated for equal protection of the law, due process, and the abolition of slavery and non-discrimination.
These instances clarify that even developed countries like the United States had to plant laws to outlaw gender-based discrimination.
In India, the 73rd and 74th amendments to the Indian Constitution, which came into effect in 1992, provide for one-third reservation of seats for women in elections to the local bodies. The Women’s Reservation Bill, which was aimed at ensuring one-third representation of women in parliament, has become a story so far in India as it’s been pending in the House of people since 1996. However, the Constitution of India under Article 15(3) confers blanket power on the parliament to adopt laws for the advancement of the rights of women and children. There appear to be a good deal of women-friendly laws, including that of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Protection of Women from Domestic Violence Act, 2005, Medical termination of Pregnancy Act, 1971, Dowry Prohibition Act, 1961, Indian Penal Code, and Criminal Procedure Code, all of which aim to mitigate violence against women in India. Yet, in reality, Indian women are among the most vulnerable group to become the victims of gender-based violence.
Implement the laws
Change does not come overnight. Yet, a law is the first step. A legislative commitment supported by elected representatives, who pledge to support women’s cause, signals that the path ahead would be a different one.
The theme of this year’s International Women’s Day is “gender equality today for a sustainable tomorrow.” But even today, women lag far behind on nearly all fronts in Nepal and other countries around the world.
The battle for gender equality is old. Women are fighting against a patriarchal mindset for ages. This war is yet to be won. The implementation of laws, both national as well as international, in letter and spirit is the need of the hour to realize the goals of gender security and equality. Social progress is ensured only when there’s the availability of international peace, equal rights, and opportunities for one and all the world over. Every state of the world needs to work to end violence against women and respect their commitments to the UN conventions and other international conventions.
Jivesh Jha is a Judicial Officer at Dhanusha District Court, Janakpurdham.