“Violence against women must never be accepted, never excused, never tolerated. Every girl and woman has the right to be respected, valued and protected.” This is a vital extract drawn from the UN Secretary General Ban Ki-Moon’s press statement released in response to the brutal rape and murder of a Delhi student. This powerful statement not only indicates what the Secretary General aspired to convey to the world community, but also represents a core message of UN human rights instruments, including CEDAW (Convention on the Elimination of all forms of Violence against Women).
Representing international law’s latest position on rape, the 2008 UN Security Council Resolution Number 1820 explicitly tells us that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity, or a constitutive act with respect to genocide”. It stressed the impermissibility of amnesty provisions for this crime, called upon member states to abide by their obligations to prosecute those responsible for such crimes, and emphasized “the importance of ending impunity for such acts.”
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Theoretically, this is what Nepal aspires to, by virtue of being party to numerous human rights treaties that condemn and prohibit violence against women. As stated by late Justice Laxman Aryal in his landmark marital rape related verdict of May 2002, “Rape is committed not only against an individual victim, but also against society as a whole. Murder destroys the physical existence of a person, but the offence of rape destroys physical, mental and spiritual position of the victimised woman. Thus, it is a heinous crime.” The fact that Nepali law prescribes severe penalty, allows self-defence, and deems rape a crime involving moral turpitude indicates the legal recognition of its serious nature.
The Interim Constitution guarantees the right of every woman to be protected from all forms of violence and live a dignified life on equal footing with her counterpart. However, the ground reality doesn’t correspond to this guarantee. In practice, Nepal appears to be standing for the opposite of what the Secretary General called for.
“If a suit on the matter of rape is not filed within Thirty Five days from the date of the cause of action, the suit shall not be entertained” says Section 11 of Muluki Ain’s Chapter on Rape. Due to this statue, rapists can walk without fear of punishment after 35 days of crime, providing proof that Nepal stands for the opposite of the Secretary General’s call.
Post 1990 Constitution, Muluki Ain was significantly amended to harmonize with the CEDAW to which Nepal is a party. But unfortunately, Section 11 survived, and still continues to contribute to the de facto impunity of those who have committed rape, recognized as one of the gravest crimes under national and international law.
The 35 days statutory limitation disregards victims’ legitimate claim to justice by taking away their ability to prosecute criminal actions.
First of all, most women of Nepal are unaware of their rights. Even if they are aware, they are not in a position to report a rape in time for numerous reasons, including social stigma and fear of re-victimization. Even if an incident is reported to the police within 35 days, it is very difficult for police and prosecutors to complete all necessary criminal investigation process and file a charge-sheet within the given timeframe. The cumulative effect of all these factors is impunity for those responsible. What such a culture of impunity does is breed more instances of rape.
Because the statutory limitation clause proved to be a big hurdle to accessing justice, public interest litigation brought Section 11 to judicial scrutiny in 2004. In 2008, the Government was directed by the Supreme Court to extend the period of statutory limitation by amending the law. Subsequently, the Court repeated a similar order in the case of Indira Basnet. The Attorney General’s Annual Reports have made recommendations to similar effect regularly for many years. The National Women Commission has also repeatedly pointed this out in its reports. The issue has also been strongly raised at the international level. Most importantly, OHCHR (through its Nepal Conflict Report 2012) and CEDAW committee (through its Concluding Observations on Nepal of July 2011) expressed serious concerns over this statue, and strongly recommended its abolishment.
Continued impunity has also attracted the jurisdiction of UN Human Rights Committee (HRC). Purna Maya v. Nepal (registered 19 December 2013) is a recent example. Referring to Section 11, Purna Maya (name changed)’s case of rape and torture during the conflict was not taken up by the government, and she has approached the HRC with the hope of securing justice. Last but not the least, one of the concrete demands of the ongoing “Occupy Baluwatar” movement is the abolition of this statute.
It is undoubtedly a matter of urgency to rectify this legal flaw. The perpetuation of such an injudicious provision is a matter of shame for any human rights respecting country. Judicious solutions must be explored diligently. Adoption of a constructive interpretation of Section 11 harmonious with Section 40 of Muluki Ain’s Chapter on Court Proceedings is an option. Section 40 reads, “If a person who has to file a suit within the statute of limitation has not completed the age of sixteen years and the suit is filed until the limitation from the date on which the person has completed the age of sixteen years, the suit shall be entertained.”
By virtue of this, there exists a “doctrine of tolling” that allows the suspension of the statute of limitation until the injured person attains the age of majority. This clause can be instrumental in bringing justice to underage victims. This is also significant in view of the fact that minors are frequently targeted by rapists. Such an interpretation will also give effect to the recognized “principle of best interest of the child” entrenched in the CRC (Convention on the Rights of the Child) to which Nepal is a party. Under article 33(m) of the Interim Constitution 2063, it is also imperative for all state apparatuses to effectively implement international treaties enforceable in Nepal.
Why can’t this become a matter of high level political consideration? Why can’t the government initiate concrete steps to rectify this injudicious provision and thereby pave the way for access to justice? Given the continued uncertainty of the Legislature-Parliament, the government might have to go for an ordinance to address the problem.
The author is a constitutional and human rights lawyer based in Kathmandu
rajuforjustice@gmail.com
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