NEPAL: Implementation Of Anti-Discrimination Laws
NEPAL: 'If Not Now Maybe Never'; Implementation Of Anti-Caste-Based Discrimination Laws
Nepal's politics is reeling under frequent changes but the alarming governmental lethargy regarding the issue of caste-based discrimination seems to be a constant, barely affected by the evolution of the political scene. As the major parties now aspire to lead the government it is time for them to properly address the issue of Dalits, which, to-date, none of them have seemed willing to do so far.
Within the eight weeks which have passed since the constitution-drafting deadline was extended up to May 28, 2011, the parties have not shown any strong political commitment to draft a people-friendly constitution, including the issues and demands of the marginalized communities, Dalits, women and ethnic groups. A constitution setting the legal framework for the participatory democracy that the Nepalese have been seeking for decades should include specific provisions to put a definitive end to the caste system. The inequality inherent in the caste system is in all points antagonistic to the concepts of justice, equality, liberty and fraternity which form the basis on which the institutions of the country must be built. It is therefore the duty of all the political actors in Nepal, as well as of all those who want to establish a society in which all the citizens are born free and equal in dignity and rights, to take all appropriate steps to put an end to the caste system.
If Not Now, Maybe Never should be the parties' motto.
Caste-based discrimination is illegal under national and international laws. The Muluki Ain, 1963 banned untouchability and declared that every citizen is legally equal irrespective of caste, creed and sex. In 1971, Nepal ratified the International Convention on the Elimination of All forms of Racial Discrimination. The 1991 Constitution declared that the act of untouchability was illegal and punishable by law. As a result of those evolutions, the House of Representatives declared in 2006 that the country was free 'of untouchability and all kinds of discriminations'. The rights against caste discrimination and untouchability have been included as fundamental rights in the 2007 Interim Constitution. Nevertheless, those different steps, though welcomed, have had a limited effect and the discrimination inherently contained in the hierarchy of the caste system continues to affect every aspect of the life of the Dalit community in Nepal.
Although the Muluki Ain, 1963 (Country Law) and the Interim Constitution 2007 guarantees the right against untouchability, it still contains several loopholes and perpetrators who practice caste discrimination are not prosecuted in most of the cases.
For instance the Muluki Ain of 1963 outlawed untouchability and banned practices in which 'purification' was required but did not put an end to caste discrimination as it did not include specific provisions for punishment in case of violations of its dispositions; the law therefore proved ineffective.
Further, the efficiency of the article 14 of the 2007 Interim Constitution which guarantees the right against untouchability is also hampered by its general address of the issue, termed under racial discrimination, without a specific emphasis on the situation of the Dalits. The section 14 -1 says that a discriminating act shall be punishable by law, but, since 2007 no law specifying the punishment has been adopted. Further, the article focuses only on discrimination that can take place in public places but does not include specific provisions about discrimination at private places.
In addition to the loopholes contained in the laws, the flaws of the criminal justice system have denied to victims of caste-based discrimination the protection of their rights that it is supposed to guarantee to all the citizens. The police regularly refuse to file cases of discrimination or violence against Dalits and to offer protection to the victims. Those obstacles ultimately discourage Dalits from knocking on the doors of justice.
The tradition of caste based discrimination and untouchability therefore survives, particularly in rural areas. According to official estimates, Dalits comprise up to 13 percent of the population, but other estimates put this figure closer to 20 percent.
Examples of discrimination can be found in every area of life. For instance, despite having mostly the same culture and religion as the majority of Nepalese, Dalits are not allowed to profess and practice their religion freely, being routinely refused entrance into public temples. They are further also often refused entrance to tea shops, restaurants, hotels and regularly denied the use of public wells and taps.
The discrimination starts in schools as instances in which Dalit students are not allowed to sit together with non Dalit students and are even harassed by their peers are still reported. Employment opportunities are lacking. Most seriously, they are also refused the right to marry non Dalit partners. However, in spite of the continuity of the atrocities inflicted on Dalits in cases of inter-caste marriage, temple entrance and departures from the traditional occupations, the Government of Nepal has not seriously attempted to introduce or enforce legal provisions to deal with such practices.
As mentioned earlier the society reaction to inter-caste marriage is particularly revealing of the extent to which the caste system continues to be deeply entrenched as marriage between a Dalit and a non-Dalit constitutes a direct challenge to the traditional hierarchy.
Sagar Pariyar, a Dalit, and Sangita Thapa Chettri, a non Dalit, vowed to live together on 2 September 2009 at Pachali Bhairav, Kathmandu, despite the strong objection of their families. Since then, Sagar’s relatives and other Dalit families were beaten up by Suman Thapa, a nephew of Sangita and ward in-charge of Chittapol-9 of Young Communist League (YCL) aligned to the UCPN-Maoist. Since their marriage, the couple has been receiving death threats from the girl’s family. The couple is now living in a rented room in Kathmandu and has not received any kind of protection.
The case of 11-year old Dalit girl Runchi Mahara who was found raped and murdered has shown how the criminal justice system of Nepal fails to address cases of violence against women and Dalits, especially when the victim’s family does not have any leverage to encourage the police to investigate the case. Her body was found on 1st September in a mango orchard; her clothes were left near her naked body and there was a belt around her neck. At first, the police were reluctant to file a First Information Report (FIR), but did so under mounting pressure. Nevertheless, despite strong evidence against a suspect who had been arrested, the police subsequently released him. It has been reported that local ruling political party members had been pressuring the police in favour of the release of the suspect.
The case of Manisha Harijan is no different; this eight-year-old Dalit girl was found dead with her throat slit on 4th December 2009. Strong evidence has suggested that the girl had been killed as a sacrifice to bring good omens to a local businessman. It was only after pressure from local organisations and the Jagaran Media Center regional office that the police filed an FIR, arrested the suspects and put them on trial. The Dalit girl had been sacrificed because of the prevalent superstition in the area.
The Army has also been involved in atrocities committed against Dalits and received impunity. For instance, army personnel shot dead in unclear circumstances, three women of the same family, including a 12 year old girl, inside the Bardiya National Park in Bardiya district on 10th March, 2010. The women were part of a group of Dalit labourers who had entered the park to collect kaulo. The Nepal Army (NA) claimed that the three female victims were poachers and that they were shot in self defence. It resorted to all the means in its possession, including tampering with evidence, attempts to influence the police investigations and threats against the victim’s families, to cover up this case. Eventually, an agreement was forced upon the victims’ families in which they promised to withdraw the FIR they had filed against the army personnel. The perpetrators in turn promised to provide them with a certain amount of money and to withdraw the FIRs which was filed against them for having entered the park without authorisation.
Therefore, victims of atrocities committed on the basis of caste and Dalits whose rights have been violated are still facing numerous obstacles in accessing justice institutions. The improper investigation of cases in which Dalits are involved will only result in encouraging anti-Dalit sentiments, discrimination and crimes toward them. This issue can only be effectively addressed through strong political will, from all the political actors, to fill the legal loopholes, strengthen the policing system and encourage the fostering of a mindset which recognises Dalits and non-Dalits as equal.
For this, the role of the CA members, especially of the Dalit CA members is crucial. Making sure the constitution will abide by those principles is not only their legal responsibility but also their moral responsibility, arising from the mandate which was granted to them by the people at the time of their election. Forty nine Dalit CA members representing different political parties have been elected, from different backgrounds. Although they have been elected to address and include the issues and agendas of the Dalit community in the upcoming constitution of the country, very few of them have been able to raise the issue. Only one CA member was able to effectively raise the issue of the scholarship to Dalit students who want to enter medical school. Some Dalit organisations have blamed the Dalit CA members for being the 'puppets' of their parties, sticking to their party agendas. Although the way the issues of the Dalit community are tackled in the different parties' manifes tos hardly differs from each other, the political parties have still not managed to reach a consensus and to collectively address this issue. Because of the immense pressure from the Dalit civil society and Dalit organisations, a common platform, Dalit CA Members Forum was formulated where the CA members could discuss and agree on issues to be raised collectively, nevertheless, the frequency of their meetings have rapidly declined, preventing them from effectively coordinating their positions on the issue of caste.
Most of the CA members were not professional politicians before their elections and therefore are not used to expressing their ideas. CA members have been selected in order to respect the principle of 'inclusion'. This mindset should be changed in order to effectively include the Dalit community in the mainstream politics.
The role of Dalit CA members should not be limited to being mouthpiece for a particular party; they should be motivated, guided and most importantly allowed to work for the advancement of their community. The drafting of the new constitution has rightly been interpreted as an opportunity to build a legal framework more protective to the rights of the Dalits. The extended time of writing should be used to further understand the issues and agendas of the Dalit community. It can only be used effectively if the Dalit CA members are encouraged to play a more active role in the debate and if a comprehensive consultation with Dalit groups is launched.
In order to put an end to caste-based discrimination, the Asian Human Rights Commission (AHRC) suggests that the government of Nepal must give complaints of caste based discrimination priority treatment and properly investigate and prosecute such cases. Officers who are found to be intentionally negligent in dealing with such cases must be disciplined or discharged from duty. The National Dalit Commission should be strengthened and mobilized to allow its effective intervention into reported cases of caste based discrimination. The government of Nepal should receive appropriate assistance from international bodies and mechanisms, such as the Rapporteur on the issue of Racial Discrimination and the CERD Committee, to find ways to ensure the effective prevention of caste based discrimination. For this a preliminary step would be to reply to the enquiries sent by the Rapporteur on individual cases.
Moreover, the emphasis should be placed on the economic development, employment and education of the Dalit community. The government of Nepal should formulate and implement positive and affirmative action for the Dalits. It is through the emphasis on the education and employment opportunities that the empowerment of the Dalit community can effectively be achieved and that the mindset of the society can ultimately evolve. Provisions must be included to establish specific departments in the ministries of women, education, health, agriculture and forestry to make sure the specific needs of the Dalits are taken into account in the design of national plans and policies.
An effective mechanism should be established to monitor the criminal justice system in Nepal. Those who practice discrimination should be brought to justice and punished accordingly. A complaint mechanism should be established and promoted throughout the country so that the victims of caste based discrimination can register their complaints without any obstruction. The law should clearly define the type and degree of punishment which should be given to those who practice caste discrimination. Making maximum use of media, the government should raise the awareness among the general public about the issue caste based discrimination and existing redress mechanisms.
This is the right time to act collectively and build a cornerstone to end caste based discrimination and untouchability practices from the Nepalese society. Let us work together thinking "If not now, maybe never".