Gender Equality in Comparative Constitutional Law- Justice Sapana Pradhan Malla
August 5, 2019
Hon’ble Ms. J. Sapna Pradhan Malla, Judge Supreme Court of Nepalas key note speaker at South Asian Colloquium on Commonwealth Comparative Constitution and Public Law on 16th & 17th of January, 2018 organized at Lloyd Law College, best law colleges in greater noida, deliberated on the topic Comparative constitutional law and Gender equality concerns.
Ms. J. Sapna Pradhan stated that we should be focusing on not designing a constitution based on other countries ideas but we should focus on the implementation procedure of basic rights in the constitution of the different countries. Further, she raised a concern that though such implementation is important but it also varies from country to country based on their requirement and one never knows what crisis take place and you may have to design new constitution. She stated that time and again we have got opportunity to design the Constitution of Nepal. In Nepal we got the opportunity to design the constitution in 2008 and ended in 2015. It took more than nine years to have the final constitution for Nepal. In drafting the constitution comparative process was adopted, studies of different constitution from Kenya, Bulgaria, and India etc. were undertaken. Comparative approach is part of functional and procedural drafting of the Constitution of Nepal. How the structure is framed, rights provided, limitations imposed, governance etc were taken care through comparative approach. But the only question remained that how to reconcile the diversity of people and thus accordingly their needs from the constitution. How the participation of masses can be engaged? So, for this recognition of representation of people the participation of people was engaged through various programs and initiatives by the government. As a result even disabled people were part of it and signed language was used for their comfort, genders from ever sexuality male, female and even gays. Then we confronted the issue to establish a basic structure for the Constitution as the Indian Constitution has.
As India follows a constituent assembly but we went in different way we formed a committee to interact with people what they want in their constitution and the expectations were really high. As regard to the framework our constitution is different from the constitutions like U.S. or India which has a matured with time. But in Nepal we never allow constitution to mature like India and its kept flexible to adopt the new changes and challenges. We provide enough space to our constitution to adopt set of rights that is bill of rights from different international instruments protecting human rights that are translated into our Constitution. Further, it is not enough to look at substance but we have to look into process of evolving human rights framework. We have many economic social and cultural rights that are fundamental in nature. We have to expand the constitution on rights as fundamental rights through study of difference jurisprudence of different countries. Comparison is neede in Human Rights instrument but we need to look into treaty jurisprudence with the country specific requirements.
Then she spoke on gender equality status in Nepal she answered and said that I am very proud to state here that in Nepal though at earlier times women were not getting any rights forget about cultural or social rights because the law was itself discriminated, but court used the power of intervention and intervened to protect their rights through following the international human rights framework with conventions, declarations and treaties. So, now Nepal has developed protection for protecting social, economic and cultural rights of women. Nepal is the first country which criminalized rape after marriage, provides rights of abortion, property and protects any kind of discrimination whether cultural or social on the basis of menstruation in women. Further she suggested that it is important to have judges who have sensitivity with the marginalized group and others in the society and laws as institution should go hand in hand with the human kinds. Institutions play critical part in making constitution strong.
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