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Gender and Constitutionalism in Nepal

Gender and Constitutionalism in Nepal. Dr. Mara Malagodi City Law School, City, University of London. Nepal’s 2015 Constitution. Promulgated in September 2015 8 years to draft (2008-2015) P ost -conflict constitution Two Constituent Assemblies EXTENSIVE international assistance.

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Gender and Constitutionalism in Nepal

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  1. Gender and Constitutionalism in Nepal Dr. Mara Malagodi City Law School, City, University of London

  2. Nepal’s 2015 Constitution • Promulgated in September 2015 • 8 years to draft (2008-2015) • Post-conflict constitution • Two Constituent Assemblies • EXTENSIVE international assistance

  3. Presentation structure • Key features of the 2015 Constitution of Nepal: HUGE CONTRADICTION at its heart; • These features as result of • Constitution-making process • Previous strategic litigation • Construction of the Nepali nation; • What are the challenges and opportunity for gender equality in Nepal today and in the coming years?

  4. 1. Key Features of 2015 Constitution • Extensive recognition of women and LGBTQ groups in Fundamental Rights and DPSP chapters of the constitution • Extensive ‘pink quotas’ at three levels of governance (1/3 of seats at both central and provincial legislative level, either President or Vice President has to be a woman) • BUT gender-based discrimination in matters of citizenship

  5. FUNDAMENTAL RIGHTS: • Art. 18 – Right to Equality: no discrimination on the basis of sex (liñga), marital status (vaivāiksthiti), and pregnancy (garbhāvasthā)+ affirmative action for women lagging behind socially and culturally + ‘gender and sexual minorities’ (laiñgiktathāyaunikalpasañkyak) • Art. 19 – Right to Communication: restriction of free speech if inciting gender discrimination • Art. 38 – Right of Women: right to (1) lineage; (2) safe motherhood and reproductive health; (3) freedom from violence and oppression; (4) participation in state structures through proportional inclusion; (5) affirmative action; (6) equality between spouses in family affairs/property • Art. 40 – Right of Dalits: both men and women • Art. 42 – Right to Social Justice: embracing gender equality

  6. DIRECTIVE PRINCIPLES: • Art. 51 – Policies: (j)Policies regarding social justice and inclusion – (3) Ensuring the use of necessary services and facilities during the reproductive stage. […] (12) Giving priority to the very poor within all communities, regions, and gender, while providing social security and social justice.

  7. How to think about gender in Nepal? • Women + LGBTQ rights in Nepal • Nepal is a pioneering jurisdiction on this, and not just within Asia: Third Gender [Sunil Babu Pant 2007 Supreme Court case] • Intersectionality(P. Hill Collins and S. Birge): different systems of social oppression – e.g. gender, race, class, caste, etc. – are mutually constituted and work together to produce forms of social inequality that are specific to that intersection (e.g. poor Dalit woman).

  8. Citizenship • Part 2, Articles 10-15 • Focus on LANGUAGE and GENDER: when does language shift from gender neutral language (citizen, individual, person, child) to gendered language (woman, wife, father/mother)? • When the word ‘foreign’ appears in terms of marital relationship

  9. Article 11 (6) If a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a Federal law. (7) Notwithstanding anything contained elsewhere in this Article, in case of a person born to Nepali woman citizen married to a foreign citizen, he/she may acquire naturalized citizenship of Nepal as provided for by a Federal law if he/she is having the permanent domicile in Nepal and he/she has not acquired citizenship of the foreign country.

  10. Supreme Court on citizenship • Consistently upheld gender equality on citizenship matters • BUT never recognized intersectional dimension of these kinds of claims • Decisions not implemented in a general, aside from a few individual cases in which the claimant specifically obtained citizenship

  11. 2. Key Explaining Factors: • 33 per cent of women in CA1 and CA2 • Overall great contribution of Supreme Court in advancing gender equality in Nepal • Key role of ‘cause lawyering’ through combined strategy: Litigation + Lobbying + Awareness • Gender equality at the intersection of recognition and redistributive justice • Peculiarities of Nepali nationalim

  12. 3. Challenges and Opportunities • Great set of pro-women and LGBTQ rights in the 2015 constitutional text • Great body of gender equality case law at Supreme Court level • BUT poor levels of implementation • Plus backlash against judicial activism between 1990 and 2015: 2015 Constitution reduces role of SC, HCs as alternative? • Vibrant civil society with long tradition of cause lawyering and active use of international law mechanisms such as UPR and CEDAW Panel • Current government highly reluctant to amend constitution, so what is the way forward with citizenship?

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