HRC Mandate Holder, WG Discrimination against Women in Law and Practice
Access to justice for women must be equal and effective. The securing of equal and effective access to justice entails gender-sensitive engineering of the entire chain of justice in a way that guarantees not only formal but also substantive equality1. The chain of justice extends from international courts and tribunals, Optional Protocol committees, Special Procedures, regional mechanisms, state courts and other formal and informal justice systems within the state.
The link in the chain of justice that I will discuss in my presentation is the constitution. A constitutional guarantee of equality for women, in line with international standards, most especially CEDAW, and regional standards, is essential in order to establish a universal imperative of equality for women on which the entire chain of access to justice within the state will rest. Constitutional guarantees of equality are the source of authority for effective judicial review of legislative and governmental action and empower women to process their claim for equality through the courts. Beyond state courts, the possibility of recourse to international and regional mechanisms opens access to an interpretation of the constitutional provisions that is in line with international and regional state obligation to respect, protect and fulfill women’s right to equality. The inclusion of any clause in the constitution that derogates from the guarantee of gender equality, by deferring to another order of justice such as religious principles, clearly undermines the equality standards of international human rights law. Many of the countries that have derogation or exclusion clauses in their constitutions have entered reservations to the human rights treaties, and these reservations have been addressed within the concluding comments of the treaty bodies2.
There is, furthermore, a tension between the constitutional guarantees of a universal imperative of equality for women and the co-existence of plural or parallel systems of traditional justice, which are usually patriarchal both institutionally and in the substantive norms that they apply. Some states delegate authority to parallel systems, usually by bestowing jurisdiction on religious or customary courts to adjudicate on family law issues, creating a plural legal order. In some states, there is state recognition of community arbitration, quasi-judicial systems, alternative dispute resolution, marriage ceremonies etc. In all states, there may be non-state informal systems of justice, which are not formally recognized or state-sanctioned. The tension with constitutional guarantees of equality for all parallel systems of justice exists on two levels. First, some constitutions, as stated above, authorize an exception or override for the issues dealt with by parallel systems of justice granting them impunity for discrimination against women. Second, even where the constitutional guarantee of equality applies to the parallel systems of justice, there are problems in providing effective access to constitutional justice and the right to equality.
Constitutional guarantees of equality
A constitutional guarantee of equality is a critical component in securing gender equality in access to justice. While constitutional guarantees of equality do not necessarily guarantee that equality rights will be available to women in practice, the articulation of equality for women is a significant and essential foundation for the realization of women’s rights and is an indispensable expression of political will. Constitutional rights are never interpreted or implemented in a political or ideological vacuum3, which means that political, cultural and social norms may continue to impact women’s ability to access their human rights. However, having the legal and constitutional framework in place within the state is a first step in the chain of access to justice.
In order for constitutions to ensure equal and effective access to justice for women, more than a general equality guarantee is required. Increasingly, women’s rights and non-discrimination clauses have been incorporated into new constitutions or are part of constitutional reform efforts in different regions. This, in part, is a result of ratification of the CEDAW Convention together with organized campaigning by women’s activists in the final decades of the 20th century4. Thus, in the constitutions drawn up after CEDAW, many constitutions included equality guarantees for women: the 1982 Canadian Charter; the 1991 Colombian Constitution; the 1996 South African Constitution; the 1997 Eritrean; the 2003 Rwandan; the 2005 Iraqi; the 2004 Cambodian; 2004 Afghan; 2008 Bhutan; and Malaysia 2009. However, there are also counter examples, such as the 2012 Egyptian and Libyan Constitutions which, like the earlier Kuwait and Lebanon Constitutions, are without mention of women’s right to equality: “Law applies equally to all citizens, and they are equal in rights and general duties. They may not be discriminated against due to race, origin, language, religion, or creed.”5 These clauses are particularly problematic in that, by citing some forms of discrimination and omitting sex or gender, they give rise to a presumption that equality for women is intentionally excluded.
The constitutional provisions for gender equality should be specific and it is critical that the requirement of sex equality and non-discrimination should be incorporated to frame the equality priorities throughout the entire document6. Research on the constitutional provisions that specifically grant or protect the rights of women in both Canada and Colombia has shown that while women’s protection clauses cannot be shown to be the exclusive cause of improved legal protection of women, they are associated with gains in women’s rights7. The Rwandan Constitution provides a model example, ensuring respect for equality, human rights and fundamental freedoms, as well as international treaties in the Preamble, and specifying equality between men and women and incorporating a prohibition of discrimination based on gender equality8. Most Latin American and Caribbean constitutions also prohibit gender discrimination in their equality clauses9. Many countries in Asia Pacific, such as China, India, Korea, Malaysia, Vietnam, Kuwait and Iraq10 have equality for women and men and non-discrimination clauses on the basis of sex in their constitutions. In Europe, many countries have specific equality provisions for women. Almost all the countries of Western and Eastern Europe and North America have equality for women and men and non-discrimination clauses on the basis of sex in their constitutions, with the outstanding exception being Ireland11. The French Constitution has specific provisions on equality for women and gives precedence to CEDAW over domestic law12. Another example is article 10 of the amendment to the Belgian Constitution 2002, which affirms the principle of equality between men and women, and enjoins the legislature to adopt measures, which are designed to guarantee equality, specifically fostering equal access for men and women to elective and public office13.
A particularly good practice in this respect is the 2011 Moroccan Constitution which systematically throughout its provisions, confers constitutional rights expressly on women as well as men, and seeks to ensure parity between them: “The man and the woman enjoy, in equality, the rights and freedoms of civil, political, economic, social, cultural and environmental character … The State works for the realization of parity between men and women.”14 The new 2009 Constitution of Bolivia also contains approximately 34 references to the rights of Bolivian women. It also contains a noteworthy catalogue of civil, political, economic, social, and cultural rights that apply to both women and men. Among the rights protected are the right to be free from every form of discrimination and to political participation15. Article 11 clarifies the goal of a participatory, representative, and community democracy. Ecuador also adopted a new Constitution in 200816. This Constitution contains a series of principles pertinent to equality of the sexes and non-discrimination. It also guarantees important economic, social, and cultural rights such as social security for women who do unpaid work; a reference to the care-giving economy; and the right to water17. The Ecuadorian Constitution codifies the principle of parity and provides for its application in all policy-making entities and instances, such as popular elections, cabinet-level ministries, the justice system, and political parties18. The Constitution stipulates that in regards to political parties, “their organization, structure and functioning shall be democratic and shall guarantee the rotation of power, accountability, and parity membership between women and men on their governing boards.”19 The women’s civil society movement was very involved in this Ecuadorian constitutional process20, illustrating the importance of activism to pressure for the creation of a constitutional framework that supports women’s rights and non-discrimination between men and women. The Ecuadorian Constitution is particularly progressive in relation to indigenous women’s rights. When the Constituent Assembly was announced in 2007, the Kichwa Women’s Network of Chimborazo developed an agenda for equality that focused on ending violence against women and on expanding women’s participation in indigenous governance and decision-making. The women’s network participated in public consultations to call on the State to guarantee collective and indigenous cultural rights, and when the Constitution was approved in 2008, it included far-reaching recognition of both gender equality and indigenous rights, including article 171 guaranteeing women’s participation and decision-making in indigenous governance and justice systems21.