Children in Nepal : Issues and Challenges

Children in Nepal : Issues and Challenges

Introduction

Child labor is one of the major issues in many parts of the world including Nepal. An estimate in 1996 showed that about 250 million children of ages between 5 to 14 years were working full-time of part-time. Most of these working children were in developing countries, over 50% of them in South Asia.

Nepal is one of the countries with very high proportion of child labor Force Survey in 1998/99 showed that about 2 million (14%) children out of the total population of 4.9 million of ages between 5 to 14 years were involved in work.

The Gravity of The Child Labor Problem

Awareness towards the gravity of child labor problem is a relatively new development in Nepal as in many other parts of the world. Though children’s health and education has remained a priority of His Majesty’s Government of Nepal for decades, it was only during the 1990s that the magnitude of the problem of child labor was realized. Since the early 1990s the issue of child rights and child labor has received greater attention which is being reflected in national policies and programs. Because of the social and economic circumstances of the country, child labor issue in Nepal is rather difficult and complex. Nepal is one of the least developed countries. About 90% of the population in Nepal lives in rural areas. About 81% of the total population depends of agriculture, mostly subsistence farming. About 42% Nepalese live under the absolute poverty, with income less than one dollar per day. Because most of the adults are illiterate (adult illiteracy rate about 50%), the capacity of most families to undertake alternatives to develop social and economic organize themselves to develop social and economic safety measures ate seriously constrained. Accordingly, HMG/N has adopted poverty reduction Strategy Paper and the Tenth Plan has emphasized poverty reduction as their overarching goal.

(HMG/N) considers educational development as one of the crucial strategy to remove the problem of poverty and child labor. Provision of basic and primary educational is essential for breaking the problem of poverty as well as eliminating child labor. Accordingly, HMG/N has committed itself to the provision of universal quality basic and primary education for all. It has also been engaged in the global campaign of Education for All. Since early 1990, HMG/N is implementing Basic and Primary Education Program which is currently at its second phase to universalize access and it improve the quality and relevance of basic and primary education in Nepal. Many INGOs and NGOs are also working towards solving the problems of poverty and child labor in Nepal. The issues of child labor in Nepal, however, remain ever big and challenging as the number and sectors of employment of children keep growing.

Social Dimension of Child Labor

Unlike in the case of developing countries like Nepal, Child labor is a thing of history in most of the industrialized and developed countries. The success relates it realization of the need it stop child labor and m=nurture childhood in a protective joyful and educational environment. Today, mostly of the developed countries have compulsory school education up to 16 to 18 years(grade 10 to 12), whereby the government guarantees free education up to that level and the parents are required by the law to send their children to school. However, in many underdeveloped countries this realization has yet to come not only among the poor rural families whose children are vulnerable to child labor but also among many privileged communities and families who employ children as laborers.

It is often taken for granted that children of poor need to work. ‘The riches of poor are their children” goes a Nepali proverb. On the one hand, the proverb reflects the future prospects with able people in the family; on the other hand it indicates that children need to bear with the parents in toiling work fro subsistence. For marginally poor families in Nepal there is simply no alternative, no hope, except to accepting the fate.

The social perspective that child labor is compulsive reality is rather of higher concern because it eludes social responsibly. Employment of children as household servants is a normal phenomenon, even a show of affluence by the employer because of such perceptions. The employers of children as laborer even argue that they are providing protection and helping poor children, and therefore, they feel good about it. They fail to realize that such immediate ‘favor’ results in destruction of childhood. In the absence of a feeling of social responsibility the task of protecting child laborers, proving them with educational environment and enabling them to live like children and grow with positive aspirations becomes all the challenging.

Nepalese society needs to look at the issue from humanitarian stance as well as from the perspectives of positive social transformation towards greater creativity and prosperity.

HIV/AIDS and Working Children

HIV/AIDS is gradually on the increase in the country affection the children associated with sex workers as well as people who visit them. Studies indicate that many low income workers such as those involved in transportation, those who are away from family seeking labor in the urban areas are more likely to visit sex workers. The children of these groups are more vulnerable to worst forms of child labor. The other causes of HIV/AIDS are drug abuse and abnormal sexual behavior which is also on the increase especially among the children and teenagers. Street children and working children away from their families are more vulnerable to such situation. Obviously, working children are more venerable to HIV/AIDS because of their exposure to the situational circumstances as well as because of the lack of awareness, care and support. There is still a need for detailed and critical studies in this area to generate analytical information and deeper understanding about the problems, issues and the overall actions needed.

However, there is also a need for immediate measures to prevent proliferation of the problems as well as to address the needs of those already affected.

Street Children

With increasing urbanization and urban-focused opportunities and facilities, the problem of street children is growing year by year. Children from rural villages and districts end up on city streets as a result of poverty, broken families. Physical and mental abuse in the family, abandonment, helplessness, and desire to live in the city. Street children face hunger, lack of health and education facilities, lack of opportunity for skills development, physical and sexual exploitation by elder and former street children, drug abuse, etc. It is also reported that as they grew up they face difficulties in making a livelihood and, consequently, became involved in immoral and illegal activities, contributing to social disorder.

Some NGOs address the issues of street children with transit homes, skills training, socialization centers, counseling, provision of food and education, family reunion, etc.

However, it is recognized that there needs to be preventive and controlling measures at the origins and destinations of these children with issuance of identity cards for rehabilitative services for those who have already arrived in urban centers.

Disabled Children

HMGN initiated special education with a program for blind children in Kathmandu. Now, special education programs for children with many types of disabilities are being launched. However, most children with disabilities are out of reach of such facilities, as these facilities are mainly urban based. HMGN has ratified most declarations related to children with disabilities and promotion of their rights and development. Since the early 1980s government agencies and various associations’ federations and NGOs have been working for children with disabilities mainly in education, skills training, community-based rehabilitation and against social stigma, discrimination and exclusion. Such NGOs are spread throughout the country raising a voice for the rights and development of children with disabilities.

A government survey on the ‘Situation of Disability in Nepal” reports that about two percent of children have disabilities; however other studies place the figure at between one percent and 15 percent. Only about 10 percent of children with disabilities have access to formal and non-formal education.

Children in Armed Conflict

Under the Royal Army Recruitment Rules (1962), no one aged less than 18 years is eligible to join the Army; however at present children as young as 15 years are able to enlist for military training. The Maoist insurgency that started in 1996 has to date claimed several thousand lives including 300 children and injured many others. It is reported that the Maoists recruit children and youths into their movement.

Detailed information on the number of children involved and their situation is however not available. Although the insurgency originated in Nepal’s western and mid-western regions and increasing number of districts ate affected by disruptions and insecurity. Development activities have been adversely affected and the situation for children is deterioration.

Sexual abuse, exploitation and trafficking

Sexual abuse exploitation and trafficking are major issues of concern for child rights in Nepal. These practices continue unabated despite efforts by HMGN and civil society organizations. Studies show that sexual abuse and exploitation is found everywhere including at home in schools, communities and workplaces and even in public. Moreover, it is reported that children ate trafficked for sexual and labor exploitation. HMGN is trying to control sexual abuse; exploitation and trafficking in the commercial sector but is yet to address the non-commercial sector. District-level committees have been formed to address the issue of trafficking. NGOs are working on the protection, prevention and rescue of exploited and abused children (inside and outside the country) and their rehabilitation. Some activities to prevent trafficking of girls include community mobilization and peer counseling through child clubs and women’s groups.

Child Labor

The constitution of the Kingdom of Nepal (1991) forbids the employment of minors in a factory, mine or dangerous workplace. The Children’s Act prohibits the employment of children aged below 14 years in factories/industries. It also provides for protective and safety measures for children aged 14 and above. The act also requires employers to send photographs and details of all child laborers to the local DCWB.

The Nepal Labor Force Survey of 1998/99 found that over 40 percent of all children aged 5-14 years or 1.987 million children were economically active. More girls than boys work and the proportion of working children in rural areas is greater than in urban areas. Child labor exploitation has been a major problem in the promotion of the rights of children as a result of weak implementation of laws poverty, landlessness, lack of a monitoring mechanism and lack of a social security scheme. There is also a lack of administrative and legislative mechanisms to address the issues of child labor in the informal sector.

It is necessary to classify child laborers based on vulnerability and exploitation and prioritize program interventions to protect the rights of working children. Maoist activities against child; labor are to be targeted at the rural setting addressing the causes and consequences.

Legal Provisions

There ate a number of international and national legal instruments in place. However, in Nepal their implementation remains a difficult challenge in the face of limited institutional and human resources.

In the first place, the system that is responsible for the implementation has to be made rational committed and adequately sensitive to the issues. Second the society needs to be prepared for the transition to new social responsibility and for co-operation in the law enforcement. There must be a comprehensive approach to eliminate prejudices to enable all concerned to use legal provision and feel self-responsibility. A clear vision is necessary to prepare and mobilized all concerned in a collaborated and coordinated way for an effective enforcement of law.

Lack of social Contexts and Effective Alternative

The bottom line for effective elimination of the issue of child labor is the provision of at pragmatic and effective alternative to children and parents. Schools should be the place for all school age children. For this schools need to be accessible, affordable, directly benefit are relative to the current situation of the children and the parents and it goes beyond the physical entities and professional articulations.

For a marginally poor and disadvantaged family a school at its doorstep could still be socially inaccessible. Similar situation applies in the case of affordability and perception of benefit. For many parents, it is even difficult to meet the minimum requirements for daily subsistence. It is difficult to expect from such families to afford any cost, time or money for the schooling needs of their children. Further it is difficult to expect from such children to be effective and regular students. The future benefit for them from traditional education would be beyond their anticipation and grasp. A report of basic and primary education indicates that 30% of the total primary school age children are still outside the formal school system. Similarly the report of country assessment of EFA, 2000 show that the total enrolment at grade 1, about 40% repeats the class and about 23 % drop out. Although the repetition and drop out at higher grades are not as big as at grade one, the effectiveness and efficiency of school education remains very poor. Those who complete the primary education cycle ate about 50% only. The problem of non-enrolment and dropouts are acute among the poor and disadvantaged communities particularly girls and children with special needs.

Studies show that the current provisions of schooling do not address the educational needs of the disadvantaged parents and children vulnerable to child labor. Similarly, according to annual school based data of MOES (2000), of the total primer school age children 19.6% are never enrolled in school, 45.4% of the children enrolled in priory schools drip out without completing grade five. Dropout occurs mostly at grade one which stand at 14%.The magnitude of the problems of illiteracy non-enrolment and school drop-out varies by region be gender and by difference in social groups. Most disadvantaged family’s need it engages in physical work for long hours in the field or in the factories or as porters just to earn day-to-day living. Education for intellectual tact, skill and health are crucial for any improvement of the disadvantaged groups. However achieving educational provisions that address the needs and prepare a base for effective and sustainable economic development still remains a challenge.

Challenges of Child Labor: Complex Web of Causes

There are several reasons for children joining the workforce: social reasons, economic reasons, psychological reasons, inadequate policy and regulatory system, lack of comprehensive social and developmental infrastructure etc. Complex relationship exists among the various causes as many of these reasons ate interwoven to one another. Often one cause is an effect of another.

A generic causal-relations model is proposed here to understand the relationship of different causes. Mainly, sixteen generic causes are identified in this model. These are: geo-physical and political constraints ‘corrupted’ parents, discriminating behaviors to girls, bad family behavior and break0ups, work opportunities in urban areas, community apathetic attitude, inadequate commitments, instruments and supports, special physical characteristics needed to specific activities cost advantages to employers, non-pecuniary advantage to employers,’ help to community’ rather than ‘trading-a-child’ attitude of the society, majority agrarian an small scale handicraft economy lack of quality and employment opportunities, high fertility rates and large family sizes and unavailability of schooling.

The consequences and social costs of child labor on the affected children are very high. It impairs their physical, mental and moral health at a very crucial and critical stage of life that leaves permanent consequences. Even more destructive to quality of life in long-term is permanent damage caused to the social development of the child.

Refugee Children

There are more than 100,000 Bhutanese refugees of ethnic Nepali origin who have been living in UNHCR-administered camps in east Nepal for the past 10 years. While repatriation talks continue refugees are provided with food, education, health and other services by HMG, UN bodies and a number of NGOs and INGOs (including SC UK, World Lutheran service and OXfam)

Conflict and Child Labor

The conflict situation in Nepal is increasingly affecting the economic and social arenas. The situation is causing adverse conditions in the affected areas. Schools are highly affected by this condition; Schools in rural areas are not being run effectively. Because of the conflict situation many parents are not sending their children to school and many school teachers in rural areas have moved out. Similarly the local bodies including the VDCs, health posts and local development offices are displaced without any economic support and they are displaced without any economic support and they including the children are forced to seek economic engagement for survival.

Secondly dysfunctional schooling means more children without having to engage in recognized future oriented or hope generating activity in school. So children are amore vulnerable to falling on the worst forms of child labor. And thirdly sometimes children are reported to be drawn into the conflict through forced recruitment in the rural areas. This is contributing to worsening of the situation regarding child labor particularly the worst forms of child labor.

The last situation, involvement of children in conflict situation is new development in the country and is of big concern. There is definitely a need for building consensus and commitment to prevent children falling into the conflict situation in general and direct involvement in the conflict in particular. A stronger campaign by all stakeholders, particularly by the civil society is called for to make schools zone of peace. It also necessitates a more comprehensive and integrated intervention package for the children and families affected or displaced by conflict.

Economic Dimension of Child Labor: The Demand Side of the Issue

The child labor issue has always been studied only from the supply side. The studies often point out poverty, high population expansion, illiteracy, biased social values, repressive culture and so on as the main causes behind the child labor issue. All these supply side factors indicate the need for improvement in socioeconomic conditions and support for the poor and disadvantaged through a more inclusive policy and institutional framework.

There are a number of factors in the demand side as well bearing on child labor. There are monetary as well as non-monetary incentives for the demand of child labor. Children are easier to manage as they are submissive, innocent, less demanding. Trustworthy, less inclined to absenteeism and less aware of their rights. Child labor is therefore cheap and easy to manage.

The tradition of transferring workmanship to new generation is another non-pecuniary factor from the demand side that cannot be neglected. Parents feel that their children will be benefited if the children follow their traditional family occupation. Some jobs demand children due to their childlike physical, behavioral and psychological characteristics-non-threatening, charming, amicable and submissive. Children are preferred as domestic workers, sex workers, drug peddlers etc.

Accordingly demand side appears equally responsible, if not more for the current problems of child labor in Nepal. There is a need for combining awareness creation with sensitization and punitive action in a well-concerted way to cope with the demand situation. (National Plan of Action for Children)

Children in Nepal : Issues and Challenges Introduction Child labor is one of the major issues in many parts of the world including Nepal. An estimate in 1996 showed that about 250 million children of ages between 5 to 14 years were working full-time of part-time. Most of these working children were in developing countries, over 50% of them in South Asia. Nepal is one of the countries with very high proportion of child labor Force Survey in 1998/99 showed that about 2 million (14%) children out of the total population of 4.9 million of ages between 5 to 14 years were involved in work. The Gravity of The Child Labor ProblemAwareness towards the gravity of child labor problem is a relatively new development in Nepal as in many other parts of the world. Though children’s health and education has remained a priority of His Majesty’s Government of Nepal for decades, it was only during the 1990s that the magnitude of the problem of child labor was realized. Since the early 1990s the issue of child rights and child labor has received greater attention which is being reflected in national policies and programs. Because of the social and economic circumstances of the country, child labor issue in Nepal is rather difficult and complex. Nepal is one of the least developed countries. About 90% of the population in Nepal lives in rural areas. About 81% of the total population depends of agriculture, mostly subsistence farming. About 42% Nepalese live under the absolute poverty, with income less than one dollar per day. Because most of the adults are illiterate (adult illiteracy rate about 50%), the capacity of most families to undertake alternatives to develop social and economic organize themselves to develop social and economic safety measures ate seriously constrained. Accordingly, HMG/N has adopted poverty reduction Strategy Paper and the Tenth Plan has emphasized poverty reduction as their overarching goal. (HMG/N) considers educational development as one of the crucial strategy to remove the problem of poverty and child labor. Provision of basic and primary educational is essential for breaking the problem of poverty as well as eliminating child labor. Accordingly, HMG/N has committed itself to the provision of universal quality basic and primary education for all. It has also been engaged in the global campaign of Education for All. Since early 1990, HMG/N is implementing Basic and Primary Education Program which is currently at its second phase to universalize access and it improve the quality and relevance of basic and primary education in Nepal. Many INGOs and NGOs are also working towards solving the problems of poverty and child labor in Nepal. The issues of child labor in Nepal, however, remain ever big and challenging as the number and sectors of employment of children keep growing. Social Dimension of Child Labor Unlike in the case of developing countries like Nepal, Child labor is a thing of history in most of the industrialized and developed countries. The success relates it realization of the need it stop child labor and m=nurture childhood in a protective joyful and educational environment. Today, mostly of the developed countries have compulsory school education up to 16 to 18 years(grade 10 to 12), whereby the government guarantees free education up to that level and the parents are required by the law to send their children to school. However, in many underdeveloped countries this realization has yet to come not only among the poor rural families whose children are vulnerable to child labor but also among many privileged communities and families who employ children as laborers. It is often taken for granted that children of poor need to work. ‘The riches of poor are their children” goes a Nepali proverb. On the one hand, the proverb reflects the future prospects with able people in the family; on the other hand it indicates that children need to bear with the parents in toiling work fro subsistence. For marginally poor families in Nepal there is simply no alternative, no hope, except to accepting the fate. The social perspective that child labor is compulsive reality is rather of higher concern because it eludes social responsibly. Employment of children as household servants is a normal phenomenon, even a show of affluence by the employer because of such perceptions. The employers of children as laborer even argue that they are providing protection and helping poor children, and therefore, they feel good about it. They fail to realize that such immediate ‘favor’ results in destruction of childhood. In the absence of a feeling of social responsibility the task of protecting child laborers, proving them with educational environment and enabling them to live like children and grow with positive aspirations becomes all the challenging. Nepalese society needs to look at the issue from humanitarian stance as well as from the perspectives of positive social transformation towards greater creativity and prosperity. HIV/AIDS and Working Children HIV/AIDS is gradually on the increase in the country affection the children associated with sex workers as well as people who visit them. Studies indicate that many low income workers such as those involved in transportation, those who are away from family seeking labor in the urban areas are more likely to visit sex workers. The children of these groups are more vulnerable to worst forms of child labor. The other causes of HIV/AIDS are drug abuse and abnormal sexual behavior which is also on the increase especially among the children and teenagers. Street children and working children away from their families are more vulnerable to such situation. Obviously, working children are more venerable to HIV/AIDS because of their exposure to the situational circumstances as well as because of the lack of awareness, care and support. There is still a need for detailed and critical studies in this area to generate analytical information and deeper understanding about the problems, issues and the overall actions needed. However, there is also a need for immediate measures to prevent proliferation of the problems as well as to address the needs of those already affected. Street ChildrenWith increasing urbanization and urban-focused opportunities and facilities, the problem of street children is growing year by year. Children from rural villages and districts end up on city streets as a result of poverty, broken families. Physical and mental abuse in the family, abandonment, helplessness, and desire to live in the city. Street children face hunger, lack of health and education facilities, lack of opportunity for skills development, physical and sexual exploitation by elder and former street children, drug abuse, etc. It is also reported that as they grew up they face difficulties in making a livelihood and, consequently, became involved in immoral and illegal activities, contributing to social disorder. Some NGOs address the issues of street children with transit homes, skills training, socialization centers, counseling, provision of food and education, family reunion, etc. However, it is recognized that there needs to be preventive and controlling measures at the origins and destinations of these children with issuance of identity cards for rehabilitative services for those who have already arrived in urban centers. Disabled Children HMGN initiated special education with a program for blind children in Kathmandu. Now, special education programs for children with many types of disabilities are being launched. However, most children with disabilities are out of reach of such facilities, as these facilities are mainly urban based. HMGN has ratified most declarations related to children with disabilities and promotion of their rights and development. Since the early 1980s government agencies and various associations’ federations and NGOs have been working for children with disabilities mainly in education, skills training, community-based rehabilitation and against social stigma, discrimination and exclusion. Such NGOs are spread throughout the country raising a voice for the rights and development of children with disabilities. A government survey on the ‘Situation of Disability in Nepal” reports that about two percent of children have disabilities; however other studies place the figure at between one percent and 15 percent. Only about 10 percent of children with disabilities have access to formal and non-formal education. Children in Armed Conflict Under the Royal Army Recruitment Rules (1962), no one aged less than 18 years is eligible to join the Army; however at present children as young as 15 years are able to enlist for military training. The Maoist insurgency that started in 1996 has to date claimed several thousand lives including 300 children and injured many others. It is reported that the Maoists recruit children and youths into their movement. Detailed information on the number of children involved and their situation is however not available. Although the insurgency originated in Nepal’s western and mid-western regions and increasing number of districts ate affected by disruptions and insecurity. Development activities have been adversely affected and the situation for children is deterioration.Sexual abuse, exploitation and trafficking Sexual abuse exploitation and trafficking are major issues of concern for child rights in Nepal. These practices continue unabated despite efforts by HMGN and civil society organizations. Studies show that sexual abuse and exploitation is found everywhere including at home in schools, communities and workplaces and even in public. Moreover, it is reported that children ate trafficked for sexual and labor exploitation. HMGN is trying to control sexual abuse; exploitation and trafficking in the commercial sector but is yet to address the non-commercial sector. District-level committees have been formed to address the issue of trafficking. NGOs are working on the protection, prevention and rescue of exploited and abused children (inside and outside the country) and their rehabilitation. Some activities to prevent trafficking of girls include community mobilization and peer counseling through child clubs and women’s groups. Child Labor The constitution of the Kingdom of Nepal (1991) forbids the employment of minors in a factory, mine or dangerous workplace. The Children’s Act prohibits the employment of children aged below 14 years in factories/industries. It also provides for protective and safety measures for children aged 14 and above. The act also requires employers to send photographs and details of all child laborers to the local DCWB. The Nepal Labor Force Survey of 1998/99 found that over 40 percent of all children aged 5-14 years or 1.987 million children were economically active. More girls than boys work and the proportion of working children in rural areas is greater than in urban areas. Child labor exploitation has been a major problem in the promotion of the rights of children as a result of weak implementation of laws poverty, landlessness, lack of a monitoring mechanism and lack of a social security scheme. There is also a lack of administrative and legislative mechanisms to address the issues of child labor in the informal sector. It is necessary to classify child laborers based on vulnerability and exploitation and prioritize program interventions to protect the rights of working children. Maoist activities against child; labor are to be targeted at the rural setting addressing the causes and consequences.Legal Provisions There ate a number of international and national legal instruments in place. However, in Nepal their implementation remains a difficult challenge in the face of limited institutional and human resources. In the first place, the system that is responsible for the implementation has to be made rational committed and adequately sensitive to the issues. Second the society needs to be prepared for the transition to new social responsibility and for co-operation in the law enforcement. There must be a comprehensive approach to eliminate prejudices to enable all concerned to use legal provision and feel self-responsibility. A clear vision is necessary to prepare and mobilized all concerned in a collaborated and coordinated way for an effective enforcement of law.Lack of social Contexts and Effective Alternative The bottom line for effective elimination of the issue of child labor is the provision of at pragmatic and effective alternative to children and parents. Schools should be the place for all school age children. For this schools need to be accessible, affordable, directly benefit are relative to the current situation of the children and the parents and it goes beyond the physical entities and professional articulations. For a marginally poor and disadvantaged family a school at its doorstep could still be socially inaccessible. Similar situation applies in the case of affordability and perception of benefit. For many parents, it is even difficult to meet the minimum requirements for daily subsistence. It is difficult to expect from such families to afford any cost, time or money for the schooling needs of their children. Further it is difficult to expect from such children to be effective and regular students. The future benefit for them from traditional education would be beyond their anticipation and grasp. A report of basic and primary education indicates that 30% of the total primary school age children are still outside the formal school system. Similarly the report of country assessment of EFA, 2000 show that the total enrolment at grade 1, about 40% repeats the class and about 23 % drop out. Although the repetition and drop out at higher grades are not as big as at grade one, the effectiveness and efficiency of school education remains very poor. Those who complete the primary education cycle ate about 50% only. The problem of non-enrolment and dropouts are acute among the poor and disadvantaged communities particularly girls and children with special needs.Studies show that the current provisions of schooling do not address the educational needs of the disadvantaged parents and children vulnerable to child labor. Similarly, according to annual school based data of MOES (2000), of the total primer school age children 19.6% are never enrolled in school, 45.4% of the children enrolled in priory schools drip out without completing grade five. Dropout occurs mostly at grade one which stand at 14%.The magnitude of the problems of illiteracy non-enrolment and school drop-out varies by region be gender and by difference in social groups. Most disadvantaged family’s need it engages in physical work for long hours in the field or in the factories or as porters just to earn day-to-day living. Education for intellectual tact, skill and health are crucial for any improvement of the disadvantaged groups. However achieving educational provisions that address the needs and prepare a base for effective and sustainable economic development still remains a challenge.Challenges of Child Labor: Complex Web of CausesThere are several reasons for children joining the workforce: social reasons, economic reasons, psychological reasons, inadequate policy and regulatory system, lack of comprehensive social and developmental infrastructure etc. Complex relationship exists among the various causes as many of these reasons ate interwoven to one another. Often one cause is an effect of another.A generic causal-relations model is proposed here to understand the relationship of different causes. Mainly, sixteen generic causes are identified in this model. These are: geo-physical and political constraints ‘corrupted’ parents, discriminating behaviors to girls, bad family behavior and break0ups, work opportunities in urban areas, community apathetic attitude, inadequate commitments, instruments and supports, special physical characteristics needed to specific activities cost advantages to employers, non-pecuniary advantage to employers,’ help to community’ rather than ‘trading-a-child’ attitude of the society, majority agrarian an small scale handicraft economy lack of quality and employment opportunities, high fertility rates and large family sizes and unavailability of schooling.The consequences and social costs of child labor on the affected children are very high. It impairs their physical, mental and moral health at a very crucial and critical stage of life that leaves permanent consequences. Even more destructive to quality of life in long-term is permanent damage caused to the social development of the child.Refugee Children There are more than 100,000 Bhutanese refugees of ethnic Nepali origin who have been living in UNHCR-administered camps in east Nepal for the past 10 years. While repatriation talks continue refugees are provided with food, education, health and other services by HMG, UN bodies and a number of NGOs and INGOs (including SC UK, World Lutheran service and OXfam)Conflict and Child LaborThe conflict situation in Nepal is increasingly affecting the economic and social arenas. The situation is causing adverse conditions in the affected areas. Schools are highly affected by this condition; Schools in rural areas are not being run effectively. Because of the conflict situation many parents are not sending their children to school and many school teachers in rural areas have moved out. Similarly the local bodies including the VDCs, health posts and local development offices are displaced without any economic support and they are displaced without any economic support and they including the children are forced to seek economic engagement for survival. Secondly dysfunctional schooling means more children without having to engage in recognized future oriented or hope generating activity in school. So children are amore vulnerable to falling on the worst forms of child labor. And thirdly sometimes children are reported to be drawn into the conflict through forced recruitment in the rural areas. This is contributing to worsening of the situation regarding child labor particularly the worst forms of child labor.The last situation, involvement of children in conflict situation is new development in the country and is of big concern. There is definitely a need for building consensus and commitment to prevent children falling into the conflict situation in general and direct involvement in the conflict in particular. A stronger campaign by all stakeholders, particularly by the civil society is called for to make schools zone of peace. It also necessitates a more comprehensive and integrated intervention package for the children and families affected or displaced by conflict.Economic Dimension of Child Labor: The Demand Side of the IssueThe child labor issue has always been studied only from the supply side. The studies often point out poverty, high population expansion, illiteracy, biased social values, repressive culture and so on as the main causes behind the child labor issue. All these supply side factors indicate the need for improvement in socioeconomic conditions and support for the poor and disadvantaged through a more inclusive policy and institutional framework.There are a number of factors in the demand side as well bearing on child labor. There are monetary as well as non-monetary incentives for the demand of child labor. Children are easier to manage as they are submissive, innocent, less demanding. Trustworthy, less inclined to absenteeism and less aware of their rights. Child labor is therefore cheap and easy to manage.The tradition of transferring workmanship to new generation is another non-pecuniary factor from the demand side that cannot be neglected. Parents feel that their children will be benefited if the children follow their traditional family occupation. Some jobs demand children due to their childlike physical, behavioral and psychological characteristics-non-threatening, charming, amicable and submissive. Children are preferred as domestic workers, sex workers, drug peddlers etc.Accordingly demand side appears equally responsible, if not more for the current problems of child labor in Nepal. There is a need for combining awareness creation with sensitization and punitive action in a well-concerted way to cope with the demand situation. (National Plan of Action for Children)

Property Right of Nepalese Women

Gender Issues

Property Right of Nepalese Women

Sapana Pradhan Malla

PERSISTING INEQUALITY, DISCRIMINATION AND DISPARITIES

The status of women is defined in terms of their marital or sexual status; the right to ansha is fragile, temporary and imperfect. A woman is entitled to her husband’s property not as an independent co-parcener but because she is his wife. What she receives in terms of ansha from her husband is governed by the continuation of the marital relation with her husband. She can only continue to hold the right to ansha until she remains chaste or sexually faithful to the husband. She is uncompromisingly and strictly prohibited to have sexual relation with any man other than her husband, failure to maintain which deprives her of the right to ansha. A daughter is not entitled to ansha because she gets her status changed by marriage. Yet, under the existing legal system, once she reaches an age of 35 years, she is entitled to ansha because the general presumption is that the chance of changing her status through marriage then becomes almost rare.

The Constitution of the Kingdom of Nepal, 1990, under chapter 3 guarantees “right to equality” to all the citizens as a fundamental right. It states that the State shall not discriminate amongst citizens on grounds of race, caste, and sex. It also states that the Constitution is the fundamental law of Nepal and all laws inconsistent with it shall be void. However, discriminatory laws against women in relation to property right still prevail. Nepal has also become a State party ratifying the CEDAW on April 22, 1991, without reservation. Mandatory country report was submitted after a delay of 6 years. The State has made no deliberate effort to eliminate de jure and de facto discrimination against women in accordance the spirit of CEDAW.

Evidence of discrimination and disparities are as follows:

a) A daughter is denied from equal inheritance rights,

b) Daughter is denied the right to maintenance,

c) Discrimination in the line of succession (The line of succession gives a right to inheritance to the daughter only after mother and brother),

d) Discrimination on dolaji property,

e) Discrimination against Married Women to get the Property,

f) Divorcee Woman without Property Right (only conditional maintenance right),

g) Unfaithfulness looses the right in the husband’s property,

h) A victim of rape is considered as ex wife by the law,

i) Discriminatory Property Right of a Widow,

j) Discrimination on tenancy right,

k) Discrimination on Transaction, and

l) Consent needed to dispose off immovable property.

Barriers to guarantee equal Inheritance right for Women are as follows:

i. Lack of Women in Decision-making Bodies,

ii. Lack of Political Power or Political Commitment,

iii. Deep Rooted Gender Discriminatory Value System,

Beliefs Reflecting the Derogatory Attitude Towards Girl Child/Women including the following:

Dhilo paye, Chhora paye (“Let it be late, but let it be a son”);

Chhora paye swarga jaane (“The birth of a son paves the way to heaven”);

Chhori ko janma hare ko karma (“A daughter is born with a doomed fate”);

Chhora paye khasi, Chhori paye Pharsi (“If a son is born, it is celebrated by sacrificing a goat, if it’s daughter, a pumpkin is enough”);

Chhora bhaye sansar ujyalo, Chhori bhaye bhanchha ujyalo (“Son brightens the whole world, whereas a daughter brightens only the kitchen”);

Kanya Daan (“a daughter should be given away as a gift”);

Mare paap, pale punya (“It’s a sin if the groom kills the bride, charity if nurtured”);

Srimati bhaneko paitalako dhulo ho (“Wife is the dust of the foot”);

Chhori mari, thulo ghar pari (“If a daughter dies, we can say she has been married into a rich home”);

Pothi base ghar mahscha (“A woman ruled house is sure to be destroyed”);

and Swasni mancheko buddhi pachhadi (“Women are always shortsighted”).

Holding of such traditional values by both the lawmakers and many common Nepalese people have been detrimental for the realization of equal rights for both sons and daughters. Majority of the population is still exposed to such values because of lack of access to modern education.

Negative Campaign in the Media have had the following messages: The Nepalese society is not yet prepared to embrace equal property rights. Nepalese social structure would be badly disturbed by equal property rights. Hindu religion would be wounded if equal property right is given.

The Bill would destroy the prevailing harmonious family relationships. There already exists many court cases among brothers relating to property rights and equal property rights would only result in increasing their number, as there would be cases among the brothers and sisters as well.

Brothers would no longer show respect and fulfill their responsibilities to their sisters. Equal property rights leads to land fragmentation. Equal property rights in Nepal and prevailing discrimination in neighboring country India Daughters may refuse to get married since they would be economically independent after getting equal property rights.

A woman would be entitled to dual property, one from her father and the other from her husband. If wife is uneducated, her husband and his family might misuse her property and then throw her out of the house. Domestic violence would go up because of conflict of interest between the husband’s family and the natal home. Equal property rights would trigger divorce.

The number of spinsters, polygamy and abortion would increase if women get equal property rights. If daughters should get equal property rights, aged and/or disabled parents would be deprived of care from their sons Property right is a non-issue in a country where the majority of the population lives below poverty line.

What is important to girl child/women is access to education and opportunities and not property rights. In the Hindu tradition, a woman is entitled to her husband’s property making equal property rights irrelevant.

EFFECTS OF DISCRIMINATORY PROPERTY LAW

Effects of disparities in relation to unequal inheritance on women is envisaged to be deep-rooted in their life cycle in various aspects which have impaired their overall self-development as well as their capability in family, community and national development.

Impact on overall development of women and violation of Human Rights of Women The lack of equal inheritance right to women has disabled (without power) them in various fields. The affects in various aspects of a woman’s life can broadly be categorized as follows:

i. Economic dependency

Due to economic dependency, women have to face problems like domestic violence, psychological domination, polygamy, no decision making power in the family, harassment for dowry which in many cases, leads women to accept prostitution as a way of life. They have to bear all these problems as they are denied any financial security. They have hardly any choice during their marriage, which in many a cases, results in unequal or child marriage. As a daughter is taken as an obligation and a liability only, there is also no expectation from her, hence priority is given to male family members , as they are expected to take care of the family.

ii. No independent identity

The fact that women have no independent identity, can be seen from the discriminatory provisions in the Citizenship Act, 1963,and Constitution of the Kingdom of Nepal where father is the natural guardian of children. As a woman does not have an independent identity, she can not transfer citizenship to her children and husband, hence she is not recognized as an independent citizen of the country.

iii. Low social preference

As women do not have any inheritance right, they face discrimination right from childhood in matters of nutrition, health, education and distribution of family resources.

This discrimination continues against them all throughout their life till death. Hence one can firmly say that women face discrimination arising out of unequal right to inheritance which affects various aspects of a woman’s life which ultimately hinders their overall development.

This discrimination in relation to inheritance right violates Art 11 of the Constitution of Kingdom of Nepal, Art. 1, 2, 3, 5, 13, 14 and 16 of CEDAW, Art. 1, 3, 16 and 26 of ICCPR, Art 1, 9 and 11 of ICESCR, Art. 2 and 12 of UDHR and Art. 2 of the CRC.

State commitments to guarantee Equal Inheritance Right

State has made commitments to guarantee right to equality to both man and women in all sphere of their life including right to property in different policies, plan, constitution and international conventions which can be seen from the matrix below.

GOVERNMENT INITIATIVES

One of the initiatives taken by the government is the Country Code (11th Amendment) Bill 1997. Its major features are as follows:

Progressive preamble:

It is stated in the preamble of the Bill itself that the rights and interests of women in the existing Country Code require timely amendments. It further adds that the Bill was being proposed in view of the constitutional guarantees in favor of equal rights to women, Nepal’s ratification of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women and as per the Directive Order issued by the Supreme Court to His Majesty’s Government to introduce an appropriate Bill within one year. Daughters are recognized as heir of the family: It recognizes father, mother, son and daughter as equal co-heirs.

Daughters are required to return the remaining property to the other co-heirs on their parents side, if they marry. Married daughters are not included while defining the co-heirs. Court grants wife a share of husband’s property before a divorce: It makes an attempt to eliminate women’s unequal access to property by authorizing the court to grant a share of the husband’s property (matrimonial property) to the wife before granting a divorce, as well as entitling the wife to a monthly or annual maintenance from the husband till the process of partition is complete. The wife is entitled to a share of her husband’s property only if the cause of the divorce is the husband or if the divorce is by mutual consent.

Complete authority of widow in her property: The proposed Bill removes the age restriction placed on widows to claim property and live separately. It also entitles her to have complete authority over her property. However, she must return her remaining assets to the heirs of her first husband if she remarries.

Unmarried daughters are included in the line of succession: In the case of a woman’s exclusive property, even though an unmarried daughter has been included, a married daughter has been placed last in the line of succession. A women’s Daijo and Pewa, unless otherwise stated, must pass in the following order: son or daughter, husband, and then only to the married daughter. The Chapter on Succession also placed the married daughter last in the line of succession.

Recognition of discrimination on inheritance right in the Initial Report to CEDAW In the Initial Report submitted by Nepal to CEDAW, the Government recognized the legal discrimination against women prevailing in the country. It also accepted the fact that girls are assigned unequal legal status in comparison to boys, that the law is silent on the maintenance right of daughter and that in regard to property rights, a male child is entitled to inheritance right from birth while a girl child acquires such property right only if she remains unmarried until the age of 35 years. However, it has not specified initiatives and constraints to guarantee equal inheritance right to the daughter as well as fail to explain limitations of widows, wife and divorcee women to get a share of husbands property.

Political Commitment through the Party Manifestos on equal inheri-tance right

All the political parties have been making various commitments towards women’s upliftment and equality in their manifestos since the restoration of democracy. However, no substantially effective programs have been undertaken to bring about such reforms as yet. The two communist parties, CPN (UML) and CPN (ML) both issued whips to their Parliamentarians to favor the Country Code (11th Amendment) Bill in Parliament in 1998. Unfor-tunately, the whip could not be used for the desired outcome. The major political party, the Nepali Congress, which has been in the Government for the longest duration after the restoration of the multi party system, and other parties which have been in the Government, have not taken any initiatives or actions to fulfill their commitments under their political manifestos. Three major political parties, the Nepali Congress, CPN (UML) and CPN (ML) have pledged to bring about social, economic, legal and other reforms for women, in their party manifestoes for the 1999 general elections for Parliament. The two communist parties have made commitments for the equal inheritance rights of women. How much of these grandiloquent speeches and commitments are actually carried out by these political parties remain to be seen.

Besides their commitment in the election manifesto and being in the Government for the longest period, Nepali Congress has not taken any steps to fulfil their commitments except the submission of Country Code Amendment Bill. Voice of the women Parliamentarians has been margina-lized. Similarly, UML, RPP and Sadhvana party’s’ commitments towards women’s equality is not being fulfilled, despite them being in the Govern-ment. Women’s participation in the cabinet is also very nominal.

Weaknesses in the Government Bill–Discriminatory inheritance provision in the Country Code (11th Amendment) Bill, 1999

The proposed Bill accepted the daughter as an heir of the family. However, the married daughter has been excluded. If an unmarried daughter gets married after succession or partition, the remaining property must be returned to the maternal relatives.

A widow may undergo separation and take away the share of property she receives on behalf of her deceased husband if she so wishes. If she remarries, the remaining property must be returned to the heirs of her former husband.

Married daughters are excluded from equal succession right. The proposed Bill provides that once a woman files an application for divorce, the court should direct partition and should provide one share of the family property to her but it applies only in cases in which the cause of the divorce is the husband.

The proposed Bill makes some effort to reform the discriminatory legal provisions. Accepting daughter as an equal heir as the son, increased punishment and unavailability of bail for polygamy, making abortion legal under certain conditions, etc. are some positive aspects of this Bill. However, it is still discriminatory against women as it fails to deal with the important issue of equality in relation to inheritance right and the problem of different forms of violence against women .

If the property rights provisions in the proposed Bill is examined, it becomes quite clear how even the Bill proposed violates basic human right of non-discrimination. Thus, the proposed property Bill, rather than making women self-reliant, creates inequality between sons and daughters, making them dependent on the father until they marry, and on the husband after marriage. Granting women rights on the basis of their marital status is clearly against Article 1 of CEDAW.

Interpretation of the Court

The Court only declared that the existing provisions for daughters to inherit paternal property is conditional as a daughter has to remain unmarried until the age of 35 to do so, whereas son is entitled to inherit right after his birth. Thus, instead of declaring the laws void, the court passed a directive to the Government to introduce a Bill in the legislature within a year, reviewing laws related to property rights. At the same time, the court also asked the Government to take into consideration the patriarchal nature of the society, social structure, and fears of positive discrimination against men.

A number of questions have been raised in this regard – Is Directive Order for the submission of a Bill alone sufficient to guarantee equal rights to women? If the Parliament does not pass the Bill, what will be the consequence of the court order? Will the human rights of women be protected through judicial intervention in such an eventuality? How do we see the interpretation of the court that is more concerned about protecting patriarchal values than women’s basic human right to equality and to live with dignity? Is the judiciary just shifting its burden to other Government organs by not declaring the challenged provisions and just issuing mere directive orders? Does the judiciary have any role in interpreting or implementing international conventions through its decisions?

Recommendations for Government Activities

Discriminatory provisions as shown in the Evidence of Discrimination chapter should be amended. The law should be enacted on the basis of the principle of equality and without discriminating on the basis of marital status. Advocacy programs and training on state obligations/commitments Judicial Activism

INITIATIVE BY CIVIL SOCIETY

No serious efforts from the Government sector to formulate appropriate legislation were observed following the Supreme Court’s verdict. Therefore several NGOs got together to formulate appropriate Bill.

NGO achievements

Directive Order of the Supreme Court to submit the Bill in the Parliament in regards to property right of women. Despite the negative interpretation of this issue, the challenges against the existing laws has had a positive impact, as a result of which women have become relatively more empowered. Due to the court decisions in the inheritance right case, the entire society has been forced into rethinking about the patriarchal structure, male supremacy, and the status of individual freedom of women. Women have begun to be vigilant about the issues and link them with the broader issue of equality.

In spite of an increasing need for an amendment in the existing legal provisions in order to create a just and equitable society, there have been diverse views and opinions regarding the issue of granting equal property rights to women. Education, political participation, distribution of productive assets and income, employment, social, cultural, religious and legal situations have proved that disparities/ discrimination exists between man and woman in Nepal.

Economic and socio-cultural discriminations have an adverse affect on the lives of women, leaving them far behind men to compete or take part in national development. Various cultural, practical, attitudinal, conceptual, social and political factors have limited women from moving in equal footing with men. Economic rights are one of the measures by which both women and men can achieve self-development. The majority of the Nepalese women are illiterate, have poor health, and are dominated by conservative social value system which makes them dependent on their fathers, husbands or sons, as well as easy victims of domestic and social violence. Thus, it is crucial to enact new legislation guaranteeing equal inheritance right for women to address the problem of discriminatory social and cultural practices.

There is a debate on the question of which should come first – the law giving equal inheritance right to women or an attitudinal change in the society in favor of giving equal inheritance to women? Review of the history of legal changes in Nepal reveal many instances where laws have preceded the change in social attitude and behavior, e.g. abolition of slavery, abolition of wife burning together with the dead husband (sati system), age of consent for marriage etc. This reinforces the fact that if the equal inheritance right law is introduced, it will gradually bring about positive changes in discriminatory attitudes and practices and there shall be an instrument to enforce the law.

There have been arguments that the Bill, if adopted, may upset the social and cultural milieu. It may be true that once the Bill is introduced some upheaval might occur in society as is inevitable with all kinds of changes and transition. Democracy was reinstated in the country in 1990 and even now the country is still undergoing a lot of instability and disorders. That does not mean we should go back to the period before democracy, or even further back to the autocratic Rana regime when there was no democracy at all. So the question facing us today is – do we retain the situation of gender inequality in the country despite the commitment made by the Government in our policy, Plan of Action, Constitution and various UN Conventions for fear of temporarily disturbing the discriminatory social milieu of the country; or look beyond that and work for permanent changes that will benefit the future generation and help to establish a developed society based on gender equality?

By ratifying the Convention and providing equality clause in the Constitution, State recognizes the existence of discrimination and inequality and the need to enact equal inheritance right law. We, as women, have to develop criteria for State action and responsibility. We have to learn to use the state obligation under convention as an advocacy tool to interpret the principles of equality and justice.

Property Right of Nepalese Women
Sapana Pradhan Malla
PERSISTING INEQUALITY, DISCRIMINATION AND DISPARITIES
The status of women is defined in terms of their marital or sexual status; the right to ansha is fragile, temporary and imperfect. A woman is entitled to her husband’s property not as an independent co-parcener but because she is his wife. What she receives in terms of ansha from her husband is governed by the continuation of the marital relation with her husband. She can only continue to hold the right to ansha until she remains chaste or sexually faithful to the husband. She is uncompromisingly and strictly prohibited to have sexual relation with any man other than her husband, failure to maintain which deprives her of the right to ansha. A daughter is not entitled to ansha because she gets her status changed by marriage. Yet, under the existing legal system, once she reaches an age of 35 years, she is entitled to ansha because the general presumption is that the chance of changing her status through marriage then becomes almost rare.
The Constitution of the Kingdom of Nepal, 1990, under chapter 3 guarantees “right to equality” to all the citizens as a fundamental right. It states that the State shall not discriminate amongst citizens on grounds of race, caste, and sex. It also states that the Constitution is the fundamental law of Nepal and all laws inconsistent with it shall be void. However, discriminatory laws against women in relation to property right still prevail. Nepal has also become a State party ratifying the CEDAW on April 22, 1991, without reservation. Mandatory country report was submitted after a delay of 6 years. The State has made no deliberate effort to eliminate de jure and de facto discrimination against women in accordance the spirit of CEDAW.
Evidence of discrimination and disparities are as follows:
a) A daughter is denied from equal inheritance rights,b) Daughter is denied the right to maintenance,c) Discrimination in the line of succession (The line of succession gives a right to inheritance to the daughter only after mother and brother),d) Discrimination on dolaji property,e) Discrimination against Married Women to get the Property,f) Divorcee Woman without Property Right (only conditional maintenance right),g) Unfaithfulness looses the right in the husband’s property,h) A victim of rape is considered as ex wife by the law,i) Discriminatory Property Right of a Widow,j) Discrimination on tenancy right,k) Discrimination on Transaction, andl) Consent needed to dispose off immovable property.Barriers to guarantee equal Inheritance right for Women are as follows:
i. Lack of Women in Decision-making Bodies,ii. Lack of Political Power or Political Commitment,iii. Deep Rooted Gender Discriminatory Value System,Beliefs Reflecting the Derogatory Attitude Towards Girl Child/Women including the following:
Dhilo paye, Chhora paye (“Let it be late, but let it be a son”);Chhora paye swarga jaane (“The birth of a son paves the way to heaven”);Chhori ko janma hare ko karma (“A daughter is born with a doomed fate”);Chhora paye khasi, Chhori paye Pharsi (“If a son is born, it is celebrated by sacrificing a goat, if it’s daughter, a pumpkin is enough”);Chhora bhaye sansar ujyalo, Chhori bhaye bhanchha ujyalo (“Son brightens the whole world, whereas a daughter brightens only the kitchen”);Kanya Daan (“a daughter should be given away as a gift”);Mare paap, pale punya (“It’s a sin if the groom kills the bride, charity if nurtured”);Srimati bhaneko paitalako dhulo ho (“Wife is the dust of the foot”);Chhori mari, thulo ghar pari (“If a daughter dies, we can say she has been married into a rich home”);Pothi base ghar mahscha (“A woman ruled house is sure to be destroyed”);and Swasni mancheko buddhi pachhadi (“Women are always shortsighted”).Holding of such traditional values by both the lawmakers and many common Nepalese people have been detrimental for the realization of equal rights for both sons and daughters. Majority of the population is still exposed to such values because of lack of access to modern education.
Negative Campaign in the Media have had the following messages: The Nepalese society is not yet prepared to embrace equal property rights. Nepalese social structure would be badly disturbed by equal property rights. Hindu religion would be wounded if equal property right is given.
The Bill would destroy the prevailing harmonious family relationships. There already exists many court cases among brothers relating to property rights and equal property rights would only result in increasing their number, as there would be cases among the brothers and sisters as well.
Brothers would no longer show respect and fulfill their responsibilities to their sisters. Equal property rights leads to land fragmentation. Equal property rights in Nepal and prevailing discrimination in neighboring country India Daughters may refuse to get married since they would be economically independent after getting equal property rights.
A woman would be entitled to dual property, one from her father and the other from her husband. If wife is uneducated, her husband and his family might misuse her property and then throw her out of the house. Domestic violence would go up because of conflict of interest between the husband’s family and the natal home. Equal property rights would trigger divorce.
The number of spinsters, polygamy and abortion would increase if women get equal property rights. If daughters should get equal property rights, aged and/or disabled parents would be deprived of care from their sons Property right is a non-issue in a country where the majority of the population lives below poverty line.
What is important to girl child/women is access to education and opportunities and not property rights. In the Hindu tradition, a woman is entitled to her husband’s property making equal property rights irrelevant.
EFFECTS OF DISCRIMINATORY PROPERTY LAW
Effects of disparities in relation to unequal inheritance on women is envisaged to be deep-rooted in their life cycle in various aspects which have impaired their overall self-development as well as their capability in family, community and national development.
Impact on overall development of women and violation of Human Rights of Women The lack of equal inheritance right to women has disabled (without power) them in various fields. The affects in various aspects of a woman’s life can broadly be categorized as follows:
i. Economic dependency
Due to economic dependency, women have to face problems like domestic violence, psychological domination, polygamy, no decision making power in the family, harassment for dowry which in many cases, leads women to accept prostitution as a way of life. They have to bear all these problems as they are denied any financial security. They have hardly any choice during their marriage, which in many a cases, results in unequal or child marriage. As a daughter is taken as an obligation and a liability only, there is also no expectation from her, hence priority is given to male family members , as they are expected to take care of the family.
ii. No independent identity
The fact that women have no independent identity, can be seen from the discriminatory provisions in the Citizenship Act, 1963,and Constitution of the Kingdom of Nepal where father is the natural guardian of children. As a woman does not have an independent identity, she can not transfer citizenship to her children and husband, hence she is not recognized as an independent citizen of the country.
iii. Low social preference
As women do not have any inheritance right, they face discrimination right from childhood in matters of nutrition, health, education and distribution of family resources.
This discrimination continues against them all throughout their life till death. Hence one can firmly say that women face discrimination arising out of unequal right to inheritance which affects various aspects of a woman’s life which ultimately hinders their overall development.
This discrimination in relation to inheritance right violates Art 11 of the Constitution of Kingdom of Nepal, Art. 1, 2, 3, 5, 13, 14 and 16 of CEDAW, Art. 1, 3, 16 and 26 of ICCPR, Art 1, 9 and 11 of ICESCR, Art. 2 and 12 of UDHR and Art. 2 of the CRC.
State commitments to guarantee Equal Inheritance Right
State has made commitments to guarantee right to equality to both man and women in all sphere of their life including right to property in different policies, plan, constitution and international conventions which can be seen from the matrix below.
GOVERNMENT INITIATIVES
One of the initiatives taken by the government is the Country Code (11th Amendment) Bill 1997. Its major features are as follows:
Progressive preamble:
It is stated in the preamble of the Bill itself that the rights and interests of women in the existing Country Code require timely amendments. It further adds that the Bill was being proposed in view of the constitutional guarantees in favor of equal rights to women, Nepal’s ratification of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women and as per the Directive Order issued by the Supreme Court to His Majesty’s Government to introduce an appropriate Bill within one year. Daughters are recognized as heir of the family: It recognizes father, mother, son and daughter as equal co-heirs.
Daughters are required to return the remaining property to the other co-heirs on their parents side, if they marry. Married daughters are not included while defining the co-heirs. Court grants wife a share of husband’s property before a divorce: It makes an attempt to eliminate women’s unequal access to property by authorizing the court to grant a share of the husband’s property (matrimonial property) to the wife before granting a divorce, as well as entitling the wife to a monthly or annual maintenance from the husband till the process of partition is complete. The wife is entitled to a share of her husband’s property only if the cause of the divorce is the husband or if the divorce is by mutual consent.
Complete authority of widow in her property: The proposed Bill removes the age restriction placed on widows to claim property and live separately. It also entitles her to have complete authority over her property. However, she must return her remaining assets to the heirs of her first husband if she remarries.
Unmarried daughters are included in the line of succession: In the case of a woman’s exclusive property, even though an unmarried daughter has been included, a married daughter has been placed last in the line of succession. A women’s Daijo and Pewa, unless otherwise stated, must pass in the following order: son or daughter, husband, and then only to the married daughter. The Chapter on Succession also placed the married daughter last in the line of succession.
Recognition of discrimination on inheritance right in the Initial Report to CEDAW In the Initial Report submitted by Nepal to CEDAW, the Government recognized the legal discrimination against women prevailing in the country. It also accepted the fact that girls are assigned unequal legal status in comparison to boys, that the law is silent on the maintenance right of daughter and that in regard to property rights, a male child is entitled to inheritance right from birth while a girl child acquires such property right only if she remains unmarried until the age of 35 years. However, it has not specified initiatives and constraints to guarantee equal inheritance right to the daughter as well as fail to explain limitations of widows, wife and divorcee women to get a share of husbands property.
Political Commitment through the Party Manifestos on equal inheri-tance right
All the political parties have been making various commitments towards women’s upliftment and equality in their manifestos since the restoration of democracy. However, no substantially effective programs have been undertaken to bring about such reforms as yet. The two communist parties, CPN (UML) and CPN (ML) both issued whips to their Parliamentarians to favor the Country Code (11th Amendment) Bill in Parliament in 1998. Unfor-tunately, the whip could not be used for the desired outcome. The major political party, the Nepali Congress, which has been in the Government for the longest duration after the restoration of the multi party system, and other parties which have been in the Government, have not taken any initiatives or actions to fulfill their commitments under their political manifestos. Three major political parties, the Nepali Congress, CPN (UML) and CPN (ML) have pledged to bring about social, economic, legal and other reforms for women, in their party manifestoes for the 1999 general elections for Parliament. The two communist parties have made commitments for the equal inheritance rights of women. How much of these grandiloquent speeches and commitments are actually carried out by these political parties remain to be seen.
Besides their commitment in the election manifesto and being in the Government for the longest period, Nepali Congress has not taken any steps to fulfil their commitments except the submission of Country Code Amendment Bill. Voice of the women Parliamentarians has been margina-lized. Similarly, UML, RPP and Sadhvana party’s’ commitments towards women’s equality is not being fulfilled, despite them being in the Govern-ment. Women’s participation in the cabinet is also very nominal.
Weaknesses in the Government Bill–Discriminatory inheritance provision in the Country Code (11th Amendment) Bill, 1999
The proposed Bill accepted the daughter as an heir of the family. However, the married daughter has been excluded. If an unmarried daughter gets married after succession or partition, the remaining property must be returned to the maternal relatives.
A widow may undergo separation and take away the share of property she receives on behalf of her deceased husband if she so wishes. If she remarries, the remaining property must be returned to the heirs of her former husband.
Married daughters are excluded from equal succession right. The proposed Bill provides that once a woman files an application for divorce, the court should direct partition and should provide one share of the family property to her but it applies only in cases in which the cause of the divorce is the husband.
The proposed Bill makes some effort to reform the discriminatory legal provisions. Accepting daughter as an equal heir as the son, increased punishment and unavailability of bail for polygamy, making abortion legal under certain conditions, etc. are some positive aspects of this Bill. However, it is still discriminatory against women as it fails to deal with the important issue of equality in relation to inheritance right and the problem of different forms of violence against women .
If the property rights provisions in the proposed Bill is examined, it becomes quite clear how even the Bill proposed violates basic human right of non-discrimination. Thus, the proposed property Bill, rather than making women self-reliant, creates inequality between sons and daughters, making them dependent on the father until they marry, and on the husband after marriage. Granting women rights on the basis of their marital status is clearly against Article 1 of CEDAW.
Interpretation of the Court
The Court only declared that the existing provisions for daughters to inherit paternal property is conditional as a daughter has to remain unmarried until the age of 35 to do so, whereas son is entitled to inherit right after his birth. Thus, instead of declaring the laws void, the court passed a directive to the Government to introduce a Bill in the legislature within a year, reviewing laws related to property rights. At the same time, the court also asked the Government to take into consideration the patriarchal nature of the society, social structure, and fears of positive discrimination against men.
A number of questions have been raised in this regard – Is Directive Order for the submission of a Bill alone sufficient to guarantee equal rights to women? If the Parliament does not pass the Bill, what will be the consequence of the court order? Will the human rights of women be protected through judicial intervention in such an eventuality? How do we see the interpretation of the court that is more concerned about protecting patriarchal values than women’s basic human right to equality and to live with dignity? Is the judiciary just shifting its burden to other Government organs by not declaring the challenged provisions and just issuing mere directive orders? Does the judiciary have any role in interpreting or implementing international conventions through its decisions?
Recommendations for Government Activities
Discriminatory provisions as shown in the Evidence of Discrimination chapter should be amended. The law should be enacted on the basis of the principle of equality and without discriminating on the basis of marital status. Advocacy programs and training on state obligations/commitments Judicial Activism
INITIATIVE BY CIVIL SOCIETY
No serious efforts from the Government sector to formulate appropriate legislation were observed following the Supreme Court’s verdict. Therefore several NGOs got together to formulate appropriate Bill.
NGO achievements
Directive Order of the Supreme Court to submit the Bill in the Parliament in regards to property right of women. Despite the negative interpretation of this issue, the challenges against the existing laws has had a positive impact, as a result of which women have become relatively more empowered. Due to the court decisions in the inheritance right case, the entire society has been forced into rethinking about the patriarchal structure, male supremacy, and the status of individual freedom of women. Women have begun to be vigilant about the issues and link them with the broader issue of equality.
In spite of an increasing need for an amendment in the existing legal provisions in order to create a just and equitable society, there have been diverse views and opinions regarding the issue of granting equal property rights to women. Education, political participation, distribution of productive assets and income, employment, social, cultural, religious and legal situations have proved that disparities/ discrimination exists between man and woman in Nepal.
Economic and socio-cultural discriminations have an adverse affect on the lives of women, leaving them far behind men to compete or take part in national development. Various cultural, practical, attitudinal, conceptual, social and political factors have limited women from moving in equal footing with men. Economic rights are one of the measures by which both women and men can achieve self-development. The majority of the Nepalese women are illiterate, have poor health, and are dominated by conservative social value system which makes them dependent on their fathers, husbands or sons, as well as easy victims of domestic and social violence. Thus, it is crucial to enact new legislation guaranteeing equal inheritance right for women to address the problem of discriminatory social and cultural practices.
There is a debate on the question of which should come first – the law giving equal inheritance right to women or an attitudinal change in the society in favor of giving equal inheritance to women? Review of the history of legal changes in Nepal reveal many instances where laws have preceded the change in social attitude and behavior, e.g. abolition of slavery, abolition of wife burning together with the dead husband (sati system), age of consent for marriage etc. This reinforces the fact that if the equal inheritance right law is introduced, it will gradually bring about positive changes in discriminatory attitudes and practices and there shall be an instrument to enforce the law.
There have been arguments that the Bill, if adopted, may upset the social and cultural milieu. It may be true that once the Bill is introduced some upheaval might occur in society as is inevitable with all kinds of changes and transition. Democracy was reinstated in the country in 1990 and even now the country is still undergoing a lot of instability and disorders. That does not mean we should go back to the period before democracy, or even further back to the autocratic Rana regime when there was no democracy at all. So the question facing us today is – do we retain the situation of gender inequality in the country despite the commitment made by the Government in our policy, Plan of Action, Constitution and various UN Conventions for fear of temporarily disturbing the discriminatory social milieu of the country; or look beyond that and work for permanent changes that will benefit the future generation and help to establish a developed society based on gender equality?
By ratifying the Convention and providing equality clause in the Constitution, State recognizes the existence of discrimination and inequality and the need to enact equal inheritance right law. We, as women, have to develop criteria for State action and responsibility. We have to learn to use the state obligation under convention as an advocacy tool to interpret the principles of equality and justice.

Source: http://nepalhumanrights.com/researchconflict/