Cross Border Conference Speech:
Ms. Sapana Pradhan
When we think of Nepal or talk about Nepal, as a Nepali we are proud in many ways and in many things. We are sometimes proud of our own culture and its diversity and also proud of being known as a country with the highest peak in the world. We are also proud of being a country of Buddha’s birthplace known for meditation and for compassion.
But presently Nepal is not only known for those diversities or culture and beauty, it is also known as the most polluted country in the world. A country where maternal death is the highest in the world. A country where various forms of violence against women are taking place. A country of insurgencies, trafficking of women and children and as Dr. Ghimire mentioned earlier, not only limited to women and children, but even men are being trafficked. And trafficking is not limited only to sexual exploitation it has expanded its dimension, jurisdiction and definition.
We are losing our humanity, one family is selling their own children whereas another family is buying. One neighbor is selling and another neighboring country is buying. If you see the recent data gathered by the organization Maiti Nepal, their latest data report on the statistic shows that seven thousand (7,000) women and children are being trafficked every year.
If you see the ILO (International Labor Organization) data of two years ago, the statistic shown was from twelve thousand to fifteen thousand (12,000 – 15,000). Data should not be an issue, it is not easy to maintain data of how many people are being trafficked. But we still say that there are one hundred thousand of women still missing.
But then what is happening? On one hand you have an NGO’s data showing a great number of women and children being trafficked, while on the other hand when you see the law enforcement statistics maintained by the police in the last ten years, not even one hundred and fifty cases of trafficking have been reported in the police station.
Among those cases that are registered in the police station, the cases are sent to the public prosecutor office, and then sent on to court. They then study the Forum for Women, Law and Development (FWLD), and found the ratio of thirty three percent (33%) of cases was only successful in the Supreme Court.
I am only talking about the minimum numbers, which are being reported in the law enforcement agencies. Even in that thirty three percent (33%) success ratio, in sixty eight percent (68%) of cases, a higher level of punishment is given and in thirty two percent (32%) of cases a lower punishment is given due to the high discretionary power among the law enforcement agencies in fixing the sentencing policy.
So why are there these severe forms of violence against women and children? Again I would like to say that violence is not only limited to women and children, crime is committed with impunity. I used the word impunity because if you see the ratio of trafficking and the number of women or children or men who are using the excess to justice, the success ratio is painful.
Is it because of the social cultural values that consider women as an object, or as a subordinate? An object to give away, taken away wherever they like no matter the conditions in which they are living? Or is it also the law and law enforcement agencies that are a problem? Or is it also an issue of poverty, illiteracy and insurgency? The Save the Children studies also have indicated as due to insurgencies, cases of women and children trafficking and sex workers have increased and it is not only cross-border trafficking but in-country trafficking that is also taking place.
After listening to the three speakers earlier I have not much to share but would like to point out the major issues that we really need to focus on. No doubt there is a political expression of the state for elimination of discrimination against women. Through the ratifications of various human rights instruments, Nepal is partied to almost all the mainstreaming conventions of Human Rights including Suppression of Immoral Trafficking Convention of 1949.
Nepal is also partied to the new convention, the optional protocol of the Child Rights on Sale of Children, Child Pornography and Child Prostitution. Nepal is also party to Child Rights Convention and CEDAW Convention. A regional commitment has also been brought into effect with the ratification and adoption and the SAARC Convention for Combating Trafficking for the Purpose of Prostitution.
So there is an International and Regional mechanism in which Nepal is partied to and after being a party to all these International Human Rights instruments as per the treaty act of Nepal, it has validity as a National Law. But then again what is happening about the implementation of these Conventions?
Those ratifications are limited within the paper and recently, not through the government initiative, but through a private initiative which was pushed by the Ministry of Women, we have a new Inter-Trafficking Legislation. It is a Human Trafficking and Transportation Legislation 2007.
So, on the one hand we have a legal framework, and also have an obligation under the International Human Rights Instrument, but I would like to argue with Dr. Ghimire who commented earlier that having the law itself is not enough and I do agree with that. But again being a lawyer, I feel the Law is an initiator of change, an indicator of change and an interpreter of change. Until and unless we have a substantive framework, we cannot make the Government accountable. So now at least we have a background, a substantive framework under which we can make the State accountable.
Also since Professor Shanta Thapaliya has already explained what the new Law is, I would say the new Anti-Trafficking Law is a comprehensive and progressive law in the region. Yes, I do agree with Dr. Ghimire that Law itself is not sufficient, because even if you have the law you have to see if there is an institution to implement the law and whether it does exist.
And even if there is an institution, we need to know whether it is sensitive and effective or if the budget to allocate the delivery is enough, or whether the values and mindset has been changed or not. So these are the different factors that need to work collectively in combating trafficking of women, children, as well as men.
Then whenever we talked about addressing the problem of trafficking, the focus is generally in trafficking. There are three situations, there is an entry point, a place when trafficking takes place, and when they have to remain in servitude or exploitative conditions, and then you have an exit point. So there is an entry and exit point in trafficking. Even law enforcement does not think about entry and exit point in trafficking.
Again I would like to link with what Dr. Ghimire has earlier mentioned on corruption. There is no corruption that exists only in the law enforcement where excess to justice is being used. The corruption starts when ensuring the entry of these vulnerable groups in trafficking by making false identity documents. There are hundreds of cases where false identity documents are being made for the purpose of migration or trafficking. But again there is a corruption not only at the border but in the immigration office, the airport- it starts from the Tribuvan airport itself.
The conceptual understanding is an issue as we mixed prostitution, trafficking, smuggling migration into one box. Until and unless there is a conceptual understanding, and put demarcation based on the purpose as well as the means of being used.
First, the legislation should recognize that trafficking is a crime. Unless demarcation is created with means and purposes, we cannot have an understanding of trafficking. Therefore, the understanding of trafficking is critical. In Afghanistan right now they are enacting a trafficking law and they want to bring kidnapping to the definition of trafficking. Whereas kidnapping can be a means for trafficking, but kidnapping can also be an objective of political reason or getting a ransom.
That is why we have to have demarcation because for me having strong a Nepali law is not enough. We have to ensure and find out what kind of legal system is working in the country where women, children and men are being trafficked. Also India’s legislation is equally important for the Gulf countries as well as Malaysia’s legislation for us. We really need to look into this legislation. Why I am saying is that conceptual understanding is critical because up to now whenever we talk about trafficking, we tried to link it with prostitution.
A few months back the legislation had read that trafficking was for immoral purposes only. Even if you see both the Indian and Bangladesh’s legislation law, it also mentioned trafficking as an immoral act.
So on one hand we recognized trafficking as a severe and heinous forms of violence, and on the other hand an immoral act. You know you link with morality and immorality and focused on prostitution, so how we separate and have demarcation is indeed a big issue here in Nepal.
When the Law was drafted, and though I was involved in the drafting process, I had wanted to put one issue that was not put into consideration. They have broadened the definition of trafficking, where one is being trafficked for the purpose of organ transplant as well. It is being recognized as trafficking, servitude like conditions are being recognized as trafficking, but in the definition of exploitation where I wanted to have a provision, exploitation in prostitution, the government or the law ministry just deleted that provision.
There are many cases here where women have reported even in the dance bar and the massage pallor how they are being used. And I said in-country trafficking is taking place as there is a huge exploitation here and they cannot raise it as a violence issue. Therefore, this is the major lacuna, which I see in the bill.
You will be surprised because we are talking about Cross-Border that is not only limited in it, we say Trans-Border. Nepal and India has an Extradition Treaty, that includes sixteen (16) different types of offences as an extraditable offense, but trafficking is yet to be included as an extraditable offense.
Though we are very proud to say that the regional framework that exists today at the SAARC Convention as well as in the Nepali Legislation, has an extra-territorial Jurisdiction in its legal framework, yet there is no framework that even creates state’s obligation, as there is no law that allows extradition of the offender. The law of the destination country has to ensure that the cases have been initiated and prosecuted within their territorial jurisdiction.
But no mechanism, no bilateral agreement and no extradition treaty exists as yet in these regards. And then no initiative has been taken to bring the regional framework into effect, because if you say that it is not the framework that exists, which is into force at the moment, it creates government obligation to bring judicial proceedings together to do the investigation and to monitor the border, but nothing has been happening to date except the collaboration that has been initiated among the NGOs.
No government collaboration has been initiated, neither on rescue, repatriation and re-introgression. Because of this situation, the whole concept of bringing the law for the prevention, protection and prosecution has been limited within the paper.
Though I said now that there is a law that exist, it is a very new law, therefore, the major challenge at the moment is how to disseminate this new law because many people do not know that this new law exists including the lawyers themselves.
We do not have the mechanism to disseminate the law, to simplify the law and how to reach to the community level and inform them that there is a mechanism and instruments and to tell them that they have every right, and that they are the rights holders. There is a duty holder and you need to make the duty holder accountable. That is the major challenge that we have to focus on as well.
The capacity building of the law enforcement as well as NGOs (non-government organizations), I would say NGOs because among the NGOs they do not know the challenge we face here in Nepal.
When we initiated the drafting of the law, it was very interesting and has its own story to tell. This was around three to four years back, when we initiated in coalition, we had some groups of NGOs who were the members of GAATW and CATW. GAATW works on the legalization and CATW on whatever forms of trafficking even if it’s a consensual one they think its exploitation.
So there are two political differences among the women’s groups. We have two different groups and we fight among ourselves, so how can we bring the legislation itself in a comprehensive manner to implement our own objective when we ourselves are in some disagreement?
My concern here is how to go beyond these political position and work for and to recognize that violence is violence and in this situation respecting the choices. How to bring the right-based framework in the implementation of the law is also a challenge.
We are party to different human rights instruments and the only convention is the new convention, which is known as Trafficking Protocol, that is a supplementary convention of the Trans-National Organized Crime. Specific convention to deal with Trafficking of Human Being has not been rectified by Nepal. We have rectified other Human Rights instruments, but this is not our priority issue but as well need to focus on.
So, the ratification of these conventions that is not rectified and domestified are in crisis. At the same time, after having the legal framework, we have to have a regulation to implement or bring the procedure into place that has not been initiated by the government as yet.
There are different levels of challenges in the implementation of the law. I would also like to go back to the root cause. Until and unless the root cause is addressed, unless we can generate employment within the country though right now I am saying even those migrated workers have the right to be protected, mechanism has to be created because there are no alternatives at the moment until and unless employment is generated within the country. And the economic polarization and disparity and illiteracy in this country is addressed, and the law which is supposed to protect the rights in a non-discriminative way as in Nepal the State of Law itself has been discriminating against women.
So if those laws and the mindset have been changed and look at both sons and daughters with different eyes, and the whole concept of giving away and going away of girls and creating right in other’s place and mindset is changed, trafficking of women and children cannot be addressed so it has to have a holistic approach with the law, the institution and mindset with adequate budget allocation. But trafficking is not only a national issue, it is a Trans-Border issue as well. We need both regional and international cooperation under the tips of Nepal that is under tier two. Tier two (2) means that Nepal is not fulfilling the minimum standards for the prevention, protection and prosecution of trafficking. Therefore, we need all of your attention, hands and mainly the political attention. Thank you.
Ms. Sapana Pradhan-Malla is a Practicing Lawyer Supreme Court of Nepal and President - Forum for Women, Law and Development, Nepal. Women's Right Activist, working to reform laws and policies discriminating against women using various Human Right's instrument for the protection and promotion of Human Right's of Women, specifically of CEDAW. She has been involved in almost all leading public interest litigation of Nepal specially on gender discrimination issue, prepared shadow report on CEDAW conducted various studies that includes sexual harassment, family violence, child labour, access justice, corruption, implementation of CEDAW, effectiveness of law and institutional mechanism on trafficking, reproductive right of women, and HIV and AIDS, also involved in a study on civil registration system (legal identity) and child marriage. She has been involved in drafting of laws against trafficking, against domestic violence, anti sexual harassment She is also board member of IWRAW Asia Pacific and Equality Now.
