07/08/2015, 00.00
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Nepal’s draft constitution "discriminates against women"

by Christopher Sharma
Lawyers and women’s rights activists slam provisions like Article 43 (6), which recognises that "couples have equal rights to family property" but excludes access to inheritance for unmarried women. Similarly, Article 12 (1) grants citizenship only to children, but only if both parents are Nepali. In either case, a patriarchal mind-set and fear of foreigners seem to have prevailed.

Kathmandu (AsiaNews) – The draft proposal for Nepal’s new constitution that was presented in late June after years of haggling in and outside of parliament harms women’s rights, especially in terms of property and citizenship rights, this according to several legal experts and activists.

Speaking to AsiaNews, the latter are especially upset by the absence of provisions in tow key areas, a situation that will inevitably lead to gender discrimination.

Under its current terms, the new charter drops the notion that "sons and daughters should have equal rights to family property" by limiting women’s right to family assets, which was a major achievement in the Interim Constitution.

Article 43 (6) of the draft constitution states, “a couple shall have equal right to ancestral property”, which means a woman is not eligible unless she marries.

"Legislators have removed the word 'patriarchy' but it is clear that only a patriarchal mind-set can deny women their right to inherit property. The draft is also silent on single women’s access to parental property,” said lawyer Meera Dhungana.

The women's rights activist also noted that it is wrong for legislators to limit a right that was already in the interim constitution. The provision in question "contradicts Article 43 of the same draft, which states that women should not be discriminated based on their sex."

For other experts, such a provision represents a huge setback in the efforts to make women economically independent of their husbands.

It also contradicts the government's attempt to provide women access to property by providing 30 per cent exemption on tax whilst transferring land ownership to women in rural areas.

For Deependra Jha, another lawyer, the draft will make things worse for girls, most of whom already live in poverty.

The other important area in which the proposal discriminates is in citizenship rights. Article 12 (1), also known as the “and” provision, grants Nepali citizenship to children born to Nepali parents.

If this is adopted, children born to a foreign father or mother could be stateless. Activists want citizenship to be granted to children if either the father or the mother are Nepali.

For senior lawyer Sapana Pradhan Malla, "the ‘and’ provision ends the privilege Nepali fathers had to pass on Nepali nationality to his children in case the mother has a different nationality. Conversely, the provision of naturalised citizenship cannot be deemed a right but is merely at the state’s discretion.”

For her, “Such a provision would create difficulties not only in the case where a child had a foreign parent, but also in case of a breakdown of the relationship between parents. The child could be stateless if an application for citizenship was not made or if the father refused to recognise him or her.”

Discrimination under Article 12.1 is even worse when one considers that Article 282 of the draft proposal provides that only Nepali citizens (as defined by descent) can have access to the highest offices of the state, including that of president, vice president, prime minister, chief justice, speaker of the parliament, chief ministers and heads of security agencies.

For Ramesh Lekhak, a member of the Constituent Assembly and the Commission for the drafting of the Constitution, Article 12 (1) includes another example of discrimination. As it stands, foreign women who marry Nepali men will be automatically granted citizenship but the same does not apply to foreign men who marry Nepali women.

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