Code equality

In 2015, the new civil and criminal codes have a chance to create history by ending laws discriminatory to women and gender minorities. Sadly, the bills seem like poor amendments of the Muluki Ain that they seek to replace

In the prefaces to both the proposed civil and criminal codes, the Ministry of Law and Justice writes that the Muluki Ain, despite all the amendments and reforms, does not reflect the changing realities of 21st century Nepal. In particular, the drafters say that the advent of the republic, the emphasis on human rights and the liberal, free, market-oriented policies that the country has adopted require new bills to incorporate these changes better. Unfortunately, when it comes to women and gender minorities, the proposed bills are still far from equal and progressive, adhering instead to the patriarchal logic inherent in the Muluki Ain.

The traces of traditionalism that the new codes sought to wipe out can be seen in the chapters on marriage and on crimes related to it. While the Muluki Ain assumed marriage as a relationship between a man and a woman, the Civil Code, despite the strong LGBTI (lesbian, gay, bisexual, transsexual and intersexual) movement post-conflict, restricts conjugality to being between a male and a female. In fact, for the drafting committees of the two bills, the sexual and gender minorities do not exist, except in a clause that criminalises non-consensual “unnatural” sex—a term that remains undefined but can be easily guessed to mean gay sexual activities. Unfortunately, guesswork does not help when a man gets raped by a man or a woman by a woman.

Coincidentally, the drafting committees were formed following the decision taken by the Cabinet in December 2008—just a month after the Supreme Court had asked the government to change laws discriminatory to sexual minorities and to form a panel to study the feasibility of same-sex marriage.

While the report on same-sex marriage gathers dust at the Ministry of Health and Population, the Ministry of Law has introduced “replacements” to the Muluki Ain that read just the same, without any concern for the LGBTI community.

In an earlier draft of the Criminal Code, submitted to the Prime Minister’s Office in May 2010, the drafters tried to excuse themselves by issuing a caveat which said that they had limited knowledge regarding sexual minorities—a shortcoming they did not try to remedy by making the drafting committees more inclusive. In the 12-member Criminal Code drafting committee, led by the then-Supreme Court Justice Kalyan Shrestha, and in the eight-member Civil Code drafting team, led by another then-Supreme Court Justice Khilraj Regmi, there are no representatives from sexual minorities and only one woman in each team, a gesture widely regarded as tokenism.

The lack of enough women in the committees has had consequences in the new bills. In one instance, the proposed Civil Code seeks to overturn the Supreme Court verdict of 1998 that distinguished marriage from live-in relationships, whether the couple had children or not. Clause 74 of the Civil Code says that if a sexual relationship between a man and a woman bears an offspring, the relationship will be legally deemed as a marital one. The only exceptions allowed are when the child is born out of rape or incest.

The Code drafters say that the clause has been inserted to protect (rural) women who might be lured into sexual relationships by rogue men and then left in the lurch with a fatherless child. But to think that the single mothers need protection from men or husbands is an extremely patriarchal outlook. Forcing an unwed mother to marry the father of her child not only goes against an earlier clause in the same bill that ensures freedom to marry whomever one chooses but also seeks to snatch the sexual freedom that the women fought hard for. The clause, in essence, goes back to defining marriage according to the traditional point of view—as a formal relationship designed for reproduction.

Although not explicitly admitted, this discriminatory clause seems to have been added out of fear of making the children stateless. Despite the clamour from women all around for equal rights to grant citizenship to their children by descent, the new constitution is set to keep intact the 1990’s provision of allowing only fathers to pass on citizenships to their offspring. This means children of unwed mothers cannot receive the paper that proves they are Nepalis. Instead of forcing the lawmakers to change the invidious provision on citizenship, the drafters seem to have decided to solve the problem of statelessness by pushing parents into marriage, even though the clause might be legally supporting polygamy, which will be punishable by up to three years in jail and Rs 30,000 in fine (Criminal Code).

Even the clause on polygamy is not gender-neutral, banning all forms of multiple marriages by both men and women. Instead, it assumes that only men are prone to bringing in multiple wives. Reality might be closer to this assumption, but the law should rise above these disparities and treat everyone as equal. Male-centric presumptions can also be found in clauses in the Civil Code which state that unless otherwise specified, the last names of the wife and child will be considered to be that of the husband’s/father’s. Similarly, the residence of the wife will also be considered to be at her husband’s.

Perhaps the most glaring example of the drafters’ dismissal of the women’s demand for a gender-friendly law, which also protects women from gender-based violence, is the clauses on rape, which are kept as close to the Muluki Ain as possible. Despite protests by women, the new Criminal Code demeans, as did the Muluki Ain, women’s bodies by punishing rape categorically according to the victims’ age groups—the younger the girl/woman, the longer the imprisonment. And the maximum punishment is 15 years in prison and the minimum, four years—that is much more lenient than what the high-level committee formed by former Prime Minister Baburam Bhatttarai had recommended in April 2013.

Just like its predecessor, the Criminal Code does not mention rehabilitation of the victims or the stigma they face and leaves compensation up to the discretion of the judges. Neither does it pay heed to the outcry about the statute of limitations, which has barred hundreds of victims from lodging a complaint. And while the issues of women are taken so lightly, the rape of men gets no mention and that of sexual minorities receives even lighter treatment, with homosexual rape punishable by only up to three years behind bars and a fine of up to Rs 30,000.

The only saving grace for the new codes is the provision in the Civil Code that allows daughters an equal share of their parental property, regardless of their marital status. Given the other discriminatory clauses still in place, however, this achievement feels as if it were a trade-off. Still, after almost 40 years of legal battle against the discriminatory law, which first allowed women to inherit property only if they remained unmarried after crossing 35 years of age and later permitted only unmarried ones a share, this is worth welcoming, and if passed intact, worth celebrating.

After six years since the drafting process began, the two bills were tabled in Parliament on November 2 last year. Because the January 22 deadline of drafting the constitution is closing in, the discussion on the two codes will most likely take place after the promulgation of the constitution or after the deadline, in 2015. When these laws are open for debate, women, gender minorities and believers in equality can only hope that the lawmakers will not allow any hint of discrimination to pass into law.

The two bills have been touted as the replacement for, not just amendments, to the Muluki Ain, first introduced in 1853. Members of Parliament have an opportunity here to make history. Amendment proposals to change the language to include gender minorities have already been submitted, but with just a 72-hour period provided for doing so after the tabling of the bills, lawmakers could have missed perusing every single clause. Therefore, regardless of the amendment proposals, as the Spokesperson for the Ministry of Law has repeatedly assured, every clause on the bills has to be debated, by asking for explanations behind provisions and parsing them apart for patriarchal logic.

Published on 31-12-2014, The Kathmandu Post