Cross Border Conference Speech:
Mr. Dinesh Tripathi
I am glad to be here to discuss this important topic today. I am also very glad to see that all the speakers are women and the majority of participants are especially women.
Since the cross-border trafficking is the issue of women’s empowerment, it is not only a woman’s issue, nor is it an isolated issue, but a National issue.
No country can be half free and half slave or un-free, so it needs a very holistic approach to empower the entire society and not only the part of the society. If only the males are empowered and women are lagging behind, and if they are disempowered lot, and that their dignity is not protected, then I don’t think that any nation are a progressive and civilized nation.
So in order to have a civilized and democratic nation, we need to protect the dignity of every individual irrespective of his or her gender, cast, class, and ethnicity. Women are part and parcel of society and women’s right issue and issue of women’s dignity is the matter of legitimate concern of both National and International community.
Women are now the worst victims of human rights violation. Trafficking is the violation of human right as it is against the very basic dignity of women. The very purpose of any legal constitutional system is to protect the dignity of each individual as the core of the matter, and the legal system should not fail to protect all the human rights victims.
All the constitutional vision is all about protecting the dignity of the people, as people are extremely important. Women’s dignities also need to be protected, as a woman rights are also a human rights.
So the States, Society as well as International Community should protect women’s rights. If you look at the developed countries, they export technologies and other products, but in Nepal it’s a matter of shame that we export our young people to the Gulf and other countries to work.
And women are also exported to the brothel of India and some other countries. I think this is a matter of shame that women has now become commodified, they have been made into a sexual object. And the society, which considers women as sex object, that society cannot be a progressive society or a moral, and rational society so this is the heart of the problem and is a core issue.
This is not a woman’s or an isolated issue, this is our national issue and it should be on top of our agenda and need to be addressed at war footing. This is a crisis and a silent emergency, which we need to work at a war foot to address these problems.
Now we have a set of laws and recently we have a new Legislation on trafficking. It has upgraded the previous version with a lot of new elements. Ms. Sapana Pradhan has contributed a lot in the drafting process of this new version of Legislation. The problem is that our country is suffering from two kinds of syndrome, firstly they are lacunas in our legal system on one hand, and on the other hand there is a weak implementation.
We are suffering from soft State syndrome, the State that is unable to implement its own laws. The State is so corrupt, soft and incompetent that it is unable to implement its own laws and policies.
So Nepalese are suffering from soft State syndrome, we have a piece of legislation, we have rectified CEDAW (Convention on Elimination of All kinds of Discrimination Against Women) under the article 6 of CEDAW that talks about trafficking in women. Nepal is a party on convention in elimination of all kinds of discrimination against women.
CEDAW is a kind of a Bible, Koran and Gita of women’s rights, which is a very comprehensive legislation, and luckily Nepal is a party of this legislation, but the problem is that in the South Asian Countries we have a very impressive record ratifying all the international conventions. But our problem is that we failed to domesticate and failed to implement it as we lack real commitment.
Our commitment is only cosmetic. We ratify conventions and make law but only for propaganda purposes for the cosmetic value only to show the donors that we have ratify the convention, which does not make any sense so long as there is no serious commitment to implement the legislation.
We ratified the CRC (Child Rights Convention) that also talk about trafficking of children. There is a wholesale ban on that, but we rectify it but the problem is that we fail to translate it into reality. Its still only a vision, a dream that makes us lack in serious action plan, serious commitment.
Nepal ratifies the 1949 convention purpose of the reason of trafficking person and the exploitation of the protection of others. Nepal ratified it, but we fail to submit it but eventually did in 2002 convention. This is kind of a tokenism that is not going to work unless there is a serious Political commitment.
We are suffering from the syndrome with too many laws but with too little justice, we have too many public servants but left with too little public services. We have too many law enforcement agencies but left with too little Law enforcement that leaves a serious gap with breakdown in the rule of law and the system. Nothing is functioning here in Nepal, hence our legal system is facing a lot of trouble.
The entire government missionary lacks proper orientation and professionalism therefore, the legislation we have goes unimplemented that leads to a bigger problem in this country due to these factors. Since trafficking has both the National and Regional dimensions, it also has an International dimension and is a trans-national and regional problem that seriously affects the south countries.
We have South Asian instrument on this but it has serious lack ness. There is no proper implementation of mechanism, which is lacking in the SAARC Convention on preventing and combating trafficking in women and children for prostitution. It has no perspective as the whole point is missing because there is no liability created on the part of the receiving country.
I would say that the biggest thing that lack in the Cosmetic Instruments is that there is no concrete enforce mechanism to implement due to the syndrome of soft State and Laws.
The law who lack to implement a proper mechanism or instrumentalities is our problem. Since after the 1949 Convention, there is now a growth on child pornography that has become a billion dollars industries therefore, we need a concrete International mechanism and instrument to prevent on this as well.
There are two optional protocol as well that was adopted. Nepal is not a party of a protocol to prevent, suppress and punish trafficking in persons especially women and children. These are the optional protocol in Nepal but seriously need to be ratified but rectification is not going to solve any problem unless we are seriously committed to implement it. We have a long way to go and we need strong legal mechanism, but the law alone is not sufficient as the law is just one strategy.
The root cause of trafficking need to be addressed as there is a social injustice, and women are the marginalized lot of the society. They are disempowered lot of the society, and their status has not still been enhanced in terms of human development. The indicator is very poor it shows that women are lacking behind in education, life expectancy and has less excess to resources as they are marginalized. So law is not very sufficient or adequate, hence the need to have a very strong law. It is like having some medicine for our overall health, but medicines play a very limited role.
We need societal consciousness, an active society, and a strong women’s rights movement in this country who can work in the empowerment of the women and to enhance the basic development of women. There should be a massive investment in the girl’s education. Education must be free or subsidized. They must have excess to higher education and they must have excess to job markets.
They must be able to compete in the market place of job, which is very important to protect the dignity of the women. Also that our interim constitution is a very ambitious constitution, it talks about so many things but nothing has been implemented nor translated into the reality of our nation.
If you look at article 18, it talks about the right to employment. There is an innovative provision in this interim constitution. There is an article 20, a separate article on women’s right that is very important, theoretically this has been accepted, article 21 talks about right to social justice. Article 22 talks about Child Rights, article 29 talks about right against exploitation. So these are the constitutional mechanism.
But for the first time in history, these rights have been incorporated in the constitution and have become a part of our constitutional system but it is not in the directive principle. It is in the chapter of Human Rights, Human Right chapter means these rights are justiciable. In other words, you can go to court in order to enforce those rights but to do this, we need an activist lawyer who can invoke the jurisdiction of the court. At the same time it also need an activist court to do this. But the problem on this is that so many judgments are delivered and goes unimplemented.
The problem is that the court has become a theoretical agent, sometimes they give wonderful judgments but sometimes becomes very dogmatic. The approach is very conservative but in some cases no matter how wonderful the judgments are, the State has no political will to implement those decisions due to the lack of resources.
The biggest factor is also the lack of commitment as there is so many things that do not require money and can be resolve overnight, but the government is lacking in terms of action. There is apathy on the part of the government, the State is so dogmatic, and so patrionistic it does not take into account the rights of the women. Why? Because there is no gender sensitivity on the part of the government officials as the law enforcement agencies are lacking in being gender neutral and have no basic training and professionalism. So due to these factors we need to implement strong law, we need to ratify all the international conventions (though there are lots of gaps in the international conventions too), but at least it provides some basic tools.
And the International committee should be aware of these issues because this is a growing problem and has become a trans-border issue, we need a domestic instruments and at the same time there must be an International Mechanism because now the problem has become internationalized and globalize, so the solution of the global problem must be addressed at both the domestic and the state level.
So this means we need to enhance the basic capability of our State. We need to sensitize the government officials, we need more efficient policies, laws and required commitment to implement though the biggest challenge is to change their attitude, perspective and the mind-set of our people. Otherwise without these changes we cannot achieve nor sustain these needs.
Like in the second people’s revolution movement, it has generated a huge amount of political energy but have failed to channelise and translate into any concrete action, hence we have become disorientated and on the verge of having a failed state.
This means that the failed state is not governed by any law nor is guided by any legal instrumentality as it is a very multi-dimensional issues and problems. We need a multi-dimensional and holistic approach, as the fire brigade approach does not solve any problem. Having the court and law itself does not solve problems though they are still our strong and important instruments, what we need is an in-built mechanism to fight these problems, we need to address the root cause of the issues.
Ms Durga Ghimire, President, ABC Nepal:
I am extremely delighted and happy to be here in this very important discussion on cross-border trafficking. When I received the invitation I was a little confused in which area do I have to speak, as I am a non-practicing lawyer. I did my graduation in law but not practicing at all and I’m seeing three senior lawyers today who are and will be discussing about cross-border trafficking.
So I decided I have to speak on other issues related to cross-border trafficking. Some of the issues are the new trend, some are about major initiatives which we have been taking for the prevention of cross-border trafficking and finally some are just recommendations.
As Mr. Tripathi has already mentioned, trafficking is not a regional problem it is a global problem. It has been estimated that about two million women and children are being trafficked every year throughout the globe for sexual slavery. So when we talk about cross border trafficking we have to think about its various manifestation and like Mr. Tripathi said, we have to address the root cause of trafficking.
Ten Points Recommendations are:
- Due to having soft and inadequate legal arrangements, we have to make it targeted and effective.
- Nepal needs to verify all the major International Conventions regarding women’s rights and enforce it efficiently.
- To sensitize our Society through education scheme.
- To break through the protection in the corruption of the Politicians, Law Enforcement Agencies and the syndicate crimes.
- The State must have a good mechanism on Migration issue for all men and women and to have a proper follow-up routine of those working outside the country.
- Regional Mechanism needs to be upgraded, strengthened and there must be some implementation of instrumentality and should be incorporated in the regional guideline.
- Root Cause to be addressed. For Women’s Development, the State must have a comprehensive package that need to be implemented.
Reorient the Justice System, as it is gender neutral and hostile towards our women as they are not gender sensitive.
Mr Dinesh Tripathi is a Supreme Court Advocate and Constitutional & Human Rights Expert. LL. M. International Advisory Board of Global Majority. Newly established Member of High Level Peaceand Conflict Management Committee (Government of Nepal). Advocate
Tripathi had written various books and articles on Human Rights and Constitutional Law and pleaded various landmarked cases in the Supreme Court of Nepal related to Human Rights and Constitutional rules of Law.
