Contradictions that constrict

Nepali Legislation is behind the times. It lacks the progressive provisions regarded as fundamental on other legal systems. As a result, the "right to development" is still a remote concept for the Nepali bar, courts and the public.

The United Nations General Assembly adopted the Declaration on the Right to Development on 4 December 1986. Together with the rest of the Third World, Nepal actively welcomed the Declaration for having added another dimension to the concept of human rights. In supporting the Declaration, Nepal recognised its own people's inalienable right to expect, at the very least, good faith from government in trying to achieve socio-economic advancement.

Unfortunately, the laws of the land have remained inadequate and riddled with contradictions. Progressive ideas rarely found their way into legislation and, when they did, many ways were found to negate their purpose.

Under the 1986 Declaration, States have the primary responsibility for the creation of national and international conditions favourable to the realisation of the right to development. This right shall ensure, among other things, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and fair distribution of income. Effective measures must ensure women's active role in the development process. Social injustices are to be eradicated through appropriate economic and social reforms.

BAD LAW

In Nepal's case, the benefits of "development" of the last three decades benefited a disproportionate few at the cost of the powerless and the impoverished. And law, by and large, has aided the privileged and maintained the status quo.

The entire spectrum of laws in Nepal is riddled with provisions that discriminate against one section of society or another. It would be appropriate to begin correcting those pieces of legislation which penalise the disadvantaged, particularly women, children, workers and peasants.

Discriminatory laws have to be now challenged by legislators, "development lawyers", law enforcement agencies and activists. Some pertinent question which can help identify bad laws in specific areas are the following: Do they ensure equality between men and women in matters of acquisition, inheritance, partition or disposition of property? Do they protect the interests of those displaced by land acquisition? Is existing legislation for the protection of workers implemented? Are laws which protect children actually enforced in favour of the beneficiaries?

These questions pose a challenge to future governments: can they really work towards implement able laws that guarantee the minimum opportunities today's society demands?

While it is not useful to flog dead horses, it is true that many discriminatory legislation was adopted during the Panchayat era. There is some so-called welfare legislation meant to empower to disadvantaged, but these laws are either not strong enough to make a difference, or enforcement has been non-existent.

FACTORY WORKERS

The Nepal Factory Workers Act came into force in 1959, at a time when Nepal had a handful of manufacturing units, all of which offered similar jobs and working conditions. During the past decade, the variety of "industrial" activity governed by the Act has enlarged, from workers in hotels, trekking agencies and the transport industries to manufacturing units with different needs and demands. There are jobs requiring the service of workers round the clock, others that require extra specialised knowledge, and others that require great physical strength.

Unfortunately, the one Factory Workers Act applies to all these activities, irrespective of differences in the nature of the jobs and working conditions. Moreover, even the implementation of this poor law is negligible at the plant level. Rules such as those limiting hours of work and assigning minimum wage are routinely flouted.

The 1959 Act prohibits hiring of children under the age of 14, but a recent survey of 30 carpet manfacturing units showed that the industry grossly violates this stipulation. Almost 20 per cent of the industry work force are village children brought to Kathmandu by middle-men, to work in the carpet sweatshops for nominal wages under unhygienic conditions.

A WOMAN'S PLACE

The existing laws which discriminate against women on property matters also show how far we have to go before we can be proud defenders of the Declaration on the Right to Development. Even the Panchayat Constitution, which came into force in 1962, guaranteed equality before law. But this basic guarantee was violated only a year later in the Naya Muluki Ain, the country's general code. The Ain incorporates chapters on partition, succession, adoption and marriage that arc clearly discriminatory against women.

Under current law, sons get right of equal partition in the property of the family but a daughter, to avail of that right, will have to remain unmarried till she is 35. The unmarried daughter cannot dispose of the property she receives by way of partition without her father's consent. If she inherits property as per such stipulation but then gets married, she loses her rights and her property devolves back to her brothers or nephews. Nothing speaksmore for the cruelty of laws than this reversal of property rights against a woman.

A man can adopt a girl child while his wife cannot do so as long as her husband lives. Under certain stipulated conditions, a man can marry a second wife with nary a thought even if his first wife is still alive and staying with him under the same roof. The Land Reform Act does not provide room for the acquisition of tenancy right by the daughter or daughter-in-law after the death of the male tenant. The Panchayat Constitution and the Citizenship Act of 1963 prohibit the citizenship to the foreign husband or children of a female Nepali citizen.

MEANS TO AN END

The discrimination existing under labour law and family law are cited here to give a glimpse of inadequacies and contradictions that riddle Nepali legislation. The outright discrimination under law victimises not only workers, children and women, but other weaker sections as well. In a country where feudalism still reigns supreme and where anachronistic laws do not raise eyebrows of even of their victims, the advent of multi-party democracy must provide at least the impetus to begin to right the wrongs.

If and when Nepalis receive the wise and generous Constitution they deserve, the time will have come to start cleaning up the country's laws. The guide to such a clean-up campaign should be the articles of the Declaration on the Right to Development.

Multi-party democracy is but a means towards socioeconomic development. The future government under a hopefully progressive Constitution will have the task of ensuring first that bad law is scrapped and good law is enacted. Next, it will have the much harder and longer-term task to ensure that the laws are implemented to benefit the oppressed and destitute. That is what representative government is supposed to be all about.

Bharat Raj Upreti is a corporate lawyer who does pro bona work on empowerment.