Justice today can be bought and sold with cash
JAN 07 -
As the country and its media finally wake up to the horrors of violence against women, it’s becoming increasingly apparent that there are many social, political, legal and economic factors which keep the voices of women at bay. The Women’s Commission, tasked with dealing with women and their human rights, is crippled by the fact that it remains unconstitutional. According to Mohna Ansari, member of the Commission and the Prime Minister’s Office’s Gender-based Violence Monitoring Team and also the country’s first female Muslim lawyer, impunity in cases of gender-based violence is another grave issue. In conversation with the Post’s Bidushi Dhungel, Ansari spoke about the recent protests against gender-based violence and the impunity which stops women from receiving justice. Excerpts:
In attempting to address cases of violence against women, what are the major legal hurdles that need to be resolved to guarantee justice for victims?
If we take the Interim Constitution as a marker, then every kind of violence against women is a criminal offence. In that case, we need to immediately reform the laws related to such violence. The constitution says that laws which are in contradiction to the spirit of the constitution are not allowed. So the first thing we need to do is annul the Social Reform Act of 2033 BS. Second, the Domestic Violence Act needs to be reformed to include heinous crimes as a result of domestic violence. Third, the laws regarding rape need to immediately change. The 35-day limit to report rape is one of the first things that need to go. Even after all this is done, cases should not be seen as being brought forth by women, but by fellow citizens. And the responsibility of the state is to listen to women as equals and take forward their case in a neutral, unbiased manner. If a perpetrator is found to be guilty, then they must be punished. The other thing is that in the course of investigation, the workings of the police need to be immediately made public and the accused must also be made public.
As the justice system stands currently, is there any room for victims and their families to be kept in the loop about investigations into the alleged crimes?
One of the important factors for why our system doesn’t work is that as soon as the cases are put forth, people begin to look for aafno maanche and close people who have access to power structures. They spend a lot of effort trying to figure out whose phone call can guarantee that their cases be heard quickly and an investigation launched. Or, people are looking for ways to find a way out of the entire process through similar means of calling upon the powerful. This trend can only add to impunity. The law is the law. It’s not different for men or women or anyone else. The law is not one for those with access to power and different for those without it. No one should be above the law. The occurrence of this selective justice is one of the biggest problems in our system.
Some of the recent cases of violence against women are now being investigated by a committee which the Prime Minister’s Office has formed. They are the cases of Saraswati Subedi, Sita Rai, Chhori Maiya Maharjan, Bindu Thakur and Shiwa Hasami. As a member of the committee, in these cases, do you see impunity as a problem?
We see impunity in these cases through and through. Even in the case which just surfaced a few days ago about the three-year old who was raped by an adult, there is a law to investigate the case. But without even getting an application, in the presence of the police, a settlement was agreed on—and there are no papers involved in this settlement except currency notes. The mother of the child is then told by her lawyer that nothing further can be done and that she should take the money and go. That’s what the police say too. Is this happening because the law isn’t working or is it that people’s mentality hasn’t changed? Justice has become an issue which can be bought and sold with cash.
In the five cases mentioned above, if, as you say, impunity reigns, can this government and the current protests ensure justice to the victims and prove that no one is above the law?
If there is a will, there is a way. We just need the system that is already in place to function—that’s all. We might not be able to change laws but making sure these families get access to a full investigation and legal recourse is something that can be done, if there is will on the part of political actors, the bureaucracy and the street. If we look at Saraswati Subedi’s case, why did we have to come on to the streets? Because the police, by not following the proper recourse to law, gave the public reason to come out on the streets.
As a member of the committee, have you found various government organs—from the police to ministries and doctors at the Teaching Hospital—to be cooperative in the investigations?
On an individual level, there is a lot of cooperation, sympathy and empathy. But on an institutional level, that cooperation is not present. What that points to is that no one is allowed to question the works of others. The work done by individuals and organisations is never set in stone. Even the Supreme Court can make mistakes. But the idea of reviews, repetition or reinvestigating is missing in our system. The mentality is such that no one is allowed to question the work of state organs and institutions.
When it comes to dealing with violence against women, is it that the state organs, society and the justice system are ignorant of realities, or do you see them engaging in deliberate ploys to deny women justice?
If we look at the issue historically, we see an incredible amount of negligence. But there is an addition to that—it’s also deliberate. If we look at a few cases here and there, we can say it’s just negligence on the part of stakeholders. But if we look at it historically and in an overall manner, there is this feeling that women shouldn’t complain because it is a matter of prestige—mahila le ni ujuri garchha? Ijjat nai jaancha. That is deliberate. That feeling is still there.
As a lawyer, do you find that cases of violence against women are taken seriously by the police and courts?
The law is not strong enough to overcome the mentality of questioning a woman’s claims. In fact, the laws just support that mentality of doubting women. The tendency to see women only as sex symbols and objects also has a big role to play here. There is this tendency these days to accuse women who speak up about being raped as seeking attention. That is utterly wrong. For goodness’ sake, what could a raped 18-year old get out of such a horrific incident? Or a three-year old even!
As a member of the Women’s Commission, do you feel that the Women’s Commission is taken seriously by the government?
My comparison is always with the Human Rights Commission. We look at women’s rights where as the Human Rights Commission looks at that in a broader context. The Women’s Commission should have been a strong and technical commission but has not been able to be that. It’s one thing to have political appointments, which I don’t have a problem with per se, but the appointments must be made in a democratic manner. Maybe we should have a public hearing for those nominated. The idea is that weak people are nominated by the government such that those individuals cannot go against the top-level politicians. It’s not that the members are controlled by the state but that the state never allows capable people to the fore—which undermines the entire commission. The Women’s Commission is also not constitutional because the state sees us as a danger that could potentially raise a voice against it.
Are the political parties obstructing rule of law?
The political parties are also responsible for not allowing rule of law. The politicians keep talking about peace—that’s not limited to pointing to Lumbini. The rights of women need to be assured and for that political commitment is most necessary.
What are the trends in reportings of violence against women? What groups speak up and what groups do not?
Domestic servants, I’m sure, are at the receiving end of a lot of violence, sexual assault and rape but their cases are rarely reported. We find that women from all sectors are now speaking up more than they did before, but still, some groups who are totally marginalised are afraid to speak up. Also, cases dealing with government officials rarely come up. But overall, the number of cases is on the rise. And, of course, there are many cases against the police coming up.
Posted on: 2013-01-07 08:31