Title: CEDAW Implementation Challenges and Obstacles Prepared for Expert meeting on CEDAW to implement CEDA
1CEDAW Implementation- Challenges and
ObstaclesPrepared for Expert meeting on CEDAW
to implement CEDAW at the National Level to
Promote the Human Rights of Women , 17-20 July,
2007, Bangkok, UN ESCAP
- Sapana Pradhan Malla
- Forum for Women, Law and Development, Nepal
-
2Status of CEDAW
- CEDAW Ratification 1991
- Reporting Initial 1999 second and third
periodical report 2004 - Ratification of OP to CEDAW 15 June 2007 ( date
of deposition) opting out Inquiry process - Due fourth and fifth periodical report by 2008
3Review of the Discriminatory Law
- 2000 FWLD Study found 118 laws in 56 different
legislation - 2006- 117 legal provisions, spread in 83
different legislation - 2007 ( Updating the study)
- 547 words in 53 different legislation including
constitution like chairman, Vice chairman,
brotherhood chief of army ( pati means husband),
chancellor , industrialist, kanyadan, pitri
karya, patraic sampati - Baseline study on Inheritance identification of
dejure but also defecto/ evidences, barriers,
strategies
4Judicial
- DL declared Ultra vires
- Intested Aputali property
- Stridhan ( women's exclusive property)
- Discriminatory grounds for bigamy
- Not having child ground for divorce
- Discriminatory Passport rules
- Discriminatory punishment for raping prostitution
- Directive Order Issued
- Sexual harassment
- Chaupadi
- Witchcraft
- Effective implementation of child marriage law
- Marital rape
5- Repealed the Writ
- Restriction on Foreign Employment ( FWLD vs HMG)
- Case for equal right to Citizenship
- State can make special laws for women (
radheshyam vs HMG) - Benchmark- GR 19 of CEDAW, CC to CEDAW, BPFA
recognised by the court - Convention regarded as a superior law by the
supreme Court in Reena Bajracharya's case - Definition of Discrimination under article 1 of
CEDAW to be regarded as standard until new
definition comes - Role of NGO/Petitioner in PIL using
CEDAW/CC/BPFA/GR is critical
6LEGISLATIVE REFORM
- Country Code 2006
- Objective of the bill to implement decision of SC
and for domestification of CEDAW - Army Act 2006
- Prohibition on employment uplifted
- Citizenship law 2006
- Gender Equality Bill 2006
- To implement CC of CEDAW
- Made changes on 65 provisions from the gender
equality perspective,
7Constitutional provisions
- Interim Constitution of Nepal 2007
- Preamble ..to address gender inequality issue
- A separate article for women's fundamental right
( Article 20) - Non discrimination on for being women
- Reproductive health and right
- Right against Violence Against women
- Equal inheritance right for son and daughters
- Partial recognition of Equal right to
citizenship right
8Remaining areas of discrimination
- In employment-Army Rules-
- Army recruitment only for unmarried or widow
- Restriction on Foreign employment if through
Recruiting agencies - In equal right to citizenship to women-
- Still need to be born in Nepal and reside
permanently for conferring citizenship through
mother and gets only naturalized citizenship - No equal right to confer for spouse
- In Bigamy
- illegal but not void ( No 10 of chapter on
marriage, country Code 1963) - Bigamy exempted by law in certain situation if ,
if becomes insane, or taken share of the
property, with consent if blind or crippled ,
sexually transmitted disease ( No 9 of chapter on
marriage, country Code 1963) - Discrimination in property b/t married and
unmarried ( case in the court)
9Weak laws and gaps in the Law
- Anti Trafficking legislation 1986
- A bill in the parliament in 2007
- Challenge Criminalization of client/resistance
- Rape law- Narrow definition, limited time
limitation - Gaps
- No law on Domestic violence
- Non acknowledgment of crime is also
discrimination
10Integration of CEDAW into Plan of Action
- Plan of Action on CEDAW
- CC used for tenth plan and now for interim plan
- CEDAW Status Review
- CC monitoring indicators and implementation review
11Affirmative Action to increase participation
- FWLD Study identified 150 provisions based on
Substantive model of equality ( 2003) ( political
life, Education, Employment, Health, VAW, Court
Procedure for gender justice, marriage and
family life. - Constitutional framework that recognizes special
measures for marginalsied groups ( Art 13(3)) - Ensuring proportional representation as a
fundamental right of marginalized group ( Art 21) - 33 percent candidacy in Constituent Assembly art
63 - ( 50 in proportional representation (already
ensured 24 seats for women by Election Law 2007,
even among women different status and situation
has been ( marginality) recognized
12Mobilizing political will
- Civil Society and MWCSW continue working for the
political will, democratic voices and movement
facilitating for the political will - Parliament Resolution for 33 participation in
all the structure of the government - Working to have commitment in Party manifesto
13Challenges
- Treaty jurisprudence of the region and recent
court interventions ( Nepal and Sri Lanka) - Different political priority, no ownership on hrs
framework, considered as a Foreign Document - Resource always an excuse
- Culture and religion as an excuse
- Different understanding between sensitized and
non sensitization - Government insisting to work on one report and
involving NGO in reporting process for minimizing
accountability
14- Threat perception of the government
- Patriarchal society/ threat of changing social
cultural norm - Hindu State
- Party not implementing their own commitments
- Boomerang cases for curtailing the right of
women - "Property right of married women and abortion
right"
15Opportunity
- CEDAW most known Human right document
- Strategic tool for justice delivery and
legilsative reform - OP ratification
- Declaration of Secular state
- Provision of IC on Right against exploitation
based on traditional/cultural practices as a
fundamental right - Commitment for inclusion of marginalized group
16Role of Multilateral Agencies
- Capacity building of right and duty holders
- Monitoring the implementation
- Creation of Institutions
- Creating resources
- NGO partnership
- Need to realize importance
- Baseline study
- Facilitate Reporting Process and complain
mechanism - Need to have clear understanding on
accountability mechanism - Need to create access for dialogue between CEDAW
experts and NGO - Legal framework
- Changing the values
- Facilitate negotiating in new constitutional
framework through Constituent Assembly process