As a lawyer, Sapana Pradhan Malla has pioneered women’s rights in Nepal, consistently advocating for equal inheritance, reproductive rights and women’s participation in politics. She has also been a politician herself, as a member Nepal’s Constituent Assembly, or parliament, from the Communist Party of Nepal-Unified Marxist-Leninist Party, where she fought not only for equal rights for women but also for inclusive language in the country’s new constitution. She is well known in Nepal, a country of 27 million in the Himalayas between China and India, for pushing to pass a marital rape law and for drafting the Gender Equality Amendment Act as well as a model Human Trafficking Act. But these achievements have not been easy as the country rebuilds itself after a long civil war.
Malla, 50, was visiting New York during the annual Commission on the Status of Womenconference this spring, taking a break from her master’s degree coursework at the John F. Kennedy School of Government at Harvard. She was recently named a member of the UN’s Committee Against Torture. Malla was interviewed for PassBlue about her work in the Constituent Assembly and the challenges she has faced pioneering huge advances in women’s rights in Nepal.
Q. Even though you are no longer a member of the Constituent Assembly in Nepal, can you still participate in its work writing the new Constitution?
A. Those of us who were previously in the CA can still contribute because this Constituent Assembly is going to take up all the agreed language of the last assembly that got dissolved in May 28, 2012. That is a political agreement. I also feel like you don’ t have to be inside to contribute. You can contribute equally well, if not better, from the outside. Working for four years in the CA, we know what the challenges are, what the contentious issues are, and who wants what in the new constitution. So I think, no matter where I am, I can contribute in the process of writing and drafting the constitution.
Q. How many women are in the current Constituent Assembly?
A. Unfortunately, the number has decreased from 33 percent to 29 percent [out of a total of 601 seats, of which 575 are elected]. I am afraid that it may further decrease because the government has yet to nominate 26 people, and I am afraid that they are going to have more men even here, which may have a negative consequence on the overall ratio. This dwindling representation of women is a negative indicator to the world because Nepal used to be one of the countries in Asia with the highest number of women in the parliament. We thought the government would at least maintain that ratio because everywhere the government went in its last term, they announced the numbers proudly to the world.
Therefore, you have to have strong language within the constitutional and legal framework to protect representation of women. The new constitution has to make sure that there is language that can ensure one’s participation. What we have experienced in Nepal is that until and unless there is a law that creates accountability, political parties may verbally commit to inclusion don’t do so.
Q. What was the most challenging aspect of promoting women’s rights in the Constituent Assembly when you were there from May 2008 to May 2012?
A. The most challenging issue was equality in citizenship. Everyone knows identity is key, but up to now in Nepal — although we have progressed significantly in reproductive health rights, right to property, right to participate in the political economy – when it comes to citizenship, political parties are threatened. A woman, for example, may marry someone from India and have children with him. But the law is such right now where neither her husband nor her children is guaranteed citizenship in Nepal, if they choose Nepal as a country of residence. How can people exercise rights if their families are left stateless? This is really detrimental to the identity of women, because the common perception is that once you marry, you go away. Therefore, the independent identity of a woman has not been recognized by the Constitution and state. So, many children are stateless in Nepal today because of this discriminatory law.
Q. What are the risks you have personally faced in your work on women’s rights?
A. When I started working on women’s rights, I decided to take up this work because it wasn’t just social, cultural bias against women that existed in the country, but even the law was problematic. But when you want to reform the law, you need to challenge everything: the state, the biases against women, culture, religion and a majority of patriarchal views. For change, we lobbied with parties, with advocacy groups, and nothing worked. So finally, we used the court as a tool for litigation. It is not easy. We have lots of improvements as a result. A decriminalization of abortion, changing laws related to violence, marital rape laws and inheritance laws for women are some examples.
Q. In 2008, you received a Gruber Foundation women’s rights prize. The prize, from a foundation based at Yale University, was worth $500,000. How did you use it?
A. When I first received the award, I felt like, even if you suffer and face so many challenges in the fight for equality, there are people and institutions that recognize and value your work. But although I received the prize, it was a collective effort of many institutions, many women and many men. And, of course, it helped me, too. Right after that, I became a member of the parliament; I had no earnings so it also personally supported me. It also helped me buy land and allocate funds for a center for women — a center for the victims of violence.
Q. Have you faced physical threats or violence as a result of your work?
A. See, one thing I realized is that one does not have to face physical violence. The worst violence I faced was when rape in marriage was recognized as a crime by the court. I mean, people came to me and said, a woman like you should be shot, they faced me and said: women like you should be raped. So, I realized one sometimes does not physically have to be raped. By saying such things, people can rape. I went through deep depression, in fact. I did not know how to handle it. Then immediately after the Nepal Supreme Court ruled marital rape as a crime in 2004, Martin Chautari, a discussion group and now a research and policy institute, invited me to share how I was successful. In that forum, I said, should I share my challenges, my pain, or should I share the success? So I started with the challenges, and the way media covered my story — people started thinking twice before making comments. The media helped me overcome the mental violence I was facing then.
Q. The people who were attacking you, were they both men and women?
A. Mostly men but also some women, who said we have other priorities: Why are you taking up this issue, they said. How many women do you think will report on this, even if they are raped, they asked. And many thought, once you are married, it is your duty to make your husband happy. But they didn’t realize that women have the right to say no. So patriarchy is not just in men — it is within us. But many women were happy, and some men were too.
In fact, right after the law came about, two women from local communities filed a case against their husbands. The cases filed were from Nawalparasi and Sunsari, relatively small cities far from Katmandu [the capital]. I hadn’t thought that two women from such small communities would be the ones filing these cases. The police were unaware about the law, attorneys general were unaware about the law, and we had to rush and fax the decision by the Supreme Court to everyone in these communities and rushed to help them there. But even though the law came into place, the sentence was just six months of imprisonment, which was bail-able. We asked these women if they wanted to challenge the law, and they agreed. Then we went to the court again, and now the court has said, you cannot discriminate on the punishment of rape because of someone’s marital status.
Q. So the two women who filed rape cases against their husbands also helped bring about a stricter law?
A. Yes, they helped us and we helped them. We also bought about a full confidentiality law. The Supreme Court of Nepal has now given a long guideline on confidentiality laws — the police, the media, the lawmakers, everyone has to abide by the confidentiality laws now. The confidentiality laws protect the identity of witnesses and victims of crime. Women like the ones from Nawalparasi and Sunsari or any victims of violence were not protected before. This was passed in 2008.
Q. During the civil war in Nepal, from 1996 to 2006, sexual violence was a big issue on it own. Can you tell me more about that?
A. When the civil war started, a lot of rape took place by state actors. The women that came to us lawyers wanted justice but did not trust our system, and understandably so. The police themselves were big perpetrators of rape during the conflict. In fact, there were more cases against state actors instead of nonstate actors. There was one case where seven men from the police force raped a 13-year-old girl. She was completely traumatized. We could not give her justice because the police were involved, and we had to file the case with the police. After that, there was a commission created to deal with these issues. Surprisingly, it was all men that filed any complaints. How can you file a complaint against gender violence when there is no gender-friendly environment?
The Truth and Reconciliation Commission and the National Commission on the Disappearance of Persons have to make sure that those cases are reported. What is most unfortunate is that a lot of women who were part of the conflict but are now in mainstream politics comprised and did not report on these cases, in the name of politics. Sexual violence as a result never became a part of our political agenda. Ultimately, sexual violence was included in the amnesty clause, but the Truth and Reconciliation Committee is still in a pendulum. What they should now do is include sexual violence in the nonamnesty clause of the new commission that will be created by the Truth and Reconciliation Committee. It is also necessary that a lot of women are included in the committee.
Q. That is interesting: so while women were major actors in the war, they refused to report on sexual violence?
A. Yes, precisely. Another interesting thing about the civil war is that 40 percent of the combatants were women. When they came to the integration process, there were only 17 to 18 percent women. Then, when they had a choice of integrating with the Nepali Army, only 1 to 2 percent of the women chose this option. The rest chose voluntary retirement. This was disappointing to see because it had challenged the stereotype of women, and we had taken it as an indicator of empowerment. Nepal was a country where women were prohibited to join the army. When the Maoists came to war with 40 percent women combatants, we said to the state, look you guys were wrong. You told us women can never be combatants, and now these women have come out stronger than the combatants who were men. But they mostly went back to traditional roles after the war ended.
Q. You have been fighting for equal inheritance laws for a long time. How far is Nepal from achieving this? What has been achieved?
A. Without equal inheritance laws, which leads to economic empowerment, a woman cannot fight discrimination or violence. You cannot exercise your choices. The state had a law where you had to be 35 years old and unmarried to receive inheritance rights. Whereas a man was entitled to it right after his birth. We have been challenging the law since 1994, and then the court finally said in 2002 that a daughter can inherit, but once she is married she has to return her inheritance. It took seven years to bring this law. Then, we fought again and challenged the inheritance law in 2007, where it was decided that even if you marry, you don’t have to return your inheritance. However, you are still not entitled to equal property once you are married (and did not ask for property rights before).
Q. Many women were also against equal inheritance. They said, once a woman gets married, why should she have rights? Why are women against equal inheritance?
A. Patriarchy isn’t about men versus women. We have many men allies and many females who are against such issues. Women have come to me and said, how can we do this? You expect us to fight with our brothers? It’s ironic how it is O.K. for men to fight for property and even become enemies in many cases, but it is unimaginable that a woman will do so too. However, even today a lot of laws, including equal inheritance laws, are based on women’s marriage status. They are disfranchised as a result of marriage, and we want to change that. We have accepted the laws for now, but we will continue to fight. At the end of the day, it is not just about inheritance, it is about the dignity of women. Without inheritance, women lose their economic power. I think dependency is a barrier to development, and I also think that a right to property is a barrier to development. Why don’t we just let men and women go out and make something of themselves?
Q. You also pioneered the Nepal Human Trafficking Act. What does it do?
A. There was a law against trafficking, but it did not view trafficking as an organized crime. We looked at trafficking as an organized crime and drafted law accordingly. However, the groups fighting for trafficking law were divided. There were two main groups — one that called for a conservative legislation [the CATW] and the other that called for a very strong legislation [NNAGT]. The approach we followed was first and foremost protecting the victims of trafficking. It has been called the best legislation in Asia. Last year, the Asia Foundation awarded me for creating this law. Now, we need to implement this law.
One of the most interesting things we found was that Nepal used to be a country of origin where girls were trafficked from, but it is now becoming a country of destination too; women are bought from foreign countries and children are trafficked for labor. People are trafficked from India, Sikkim, Bhutan. We must now create an access to justice for many of these trafficked victims from abroad who may not have the right papers and documents. Otherwise, the Sita Rai case will repeat itself. [Sita Rai was a migrant worker who went to the Middle East with illegal papers. She was detained and raped upon her return and all her money was stolen from her.] However, while we do have laws, trafficking needs to be challenged from its root cause. The root cause is poverty, illiteracy and unbalanced power relations.
Q. After seeing so much brutality against women, how do you retain hope?
A. Most people who come to me, come with a lot of pain and suffering. When I see so many women at a crisis, I sometimes think of how much more I can take. I also get depressed. However, I saw change after our efforts to fight for these women, and this change, this result of our hard work is what keeps me going. Our work is also being noticed internationally: the UN, various INGOs [international nongovernmental organizations], and everyone is closely monitoring changes in Nepal because we are rebuilding the nation.
Q. What are you working on now?
A. I am taking a break from the work — because sometimes you need time to reflect. I am in Harvard University, where I am a Mason fellow and doing a midcareer master’s program on public policy and governance. I will finish this May, and will go back to Nepal with new energy.
Q. Last but not least, what are Nepal’s victories in women’s rights?
A. We are moving towards equality and inclusion. Nepal was a country where life expectancy for women was lower than men, and now it is higher than men. Education is increasing; women are in public life and many other indicators that hint at success. But this is not enough. We still have a long way to go.