Women’s Rights

The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.

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A Tuvalu court rejected the argument that CEDAW and CRC could be relied on in deciding suits involving children. Although the Tuvalu government had ratified CEDAW and CRC, the court held that the Tuvalu legislature must enable the conventions locally through legislation. If the conventions are not enabled through domestic legislation, the court said, they will only apply when ambiguities or inconsistencies in domestic law arise. The court held this, despite the Constitution allowing for the use of human rights conventions in the appropriate situation.

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There existed in Pakistan the custom of swawa, in which young women or minor girls would be given away by their families as property (i.e. forced to marry another man not of their choosing) as recompense for a crime committed by a member of the woman’s family. The petitioners challenged this custom in the Supreme Court of Pakistan. They argued that such a custom violated, among other things, the constitution, the UDHR, CEDAW, the ICESCR, and the CRC. The Supreme Court then struck down the custom of swara, declaring marriages entered into under such a custom to have no legal status. Thus, all women who had been bound to a forced marriage under the swara custom were freed. However, though the Court freed these women, it did not explicitly say in its reasoning that it was swayed by such international human rights norms, even though the petitioners cited them as grounds for such a decision. On the other hand, the Court did not outright reject these arguments. And, in the end, the Court’s decision explicitly affirmed that women had fundamental rights which could not legally be violated.

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A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

(NOTE: this is a High Court case. The High Court is not the highest court in Kiribati (the highest court in Kiribati is the Court of Appeal). Nevertheless, this case can be helpful in deciding where Kiribati courts might go in the future, given the deficit of Court of Appeal cases from Kiribati citing international human rights standards.)

The former Director of Public Prosecutions tried to use CEDAW, which was unratified in Kiribati, to challenge discriminatory domestic law (the gender discriminatory corroboration warning in rape cases). Kiribati had not ratified CEDAW at the time of this judgment (but it has since been ratified). However, the Supreme Court of Kiribati was not persuaded, and the argument failed. Nevertheless, the Court at least considered CEDAW, and it was probably an influence, direct or indirect, on the outcome of the case.

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This was a public interest litigation. A woman had been raped by five men in front of the woman's husband. Though she sought justice, she encountered obstacles: the police inadequately responded to her complaint and government doctors refused to properly conduct a medical examination. A public interest lawyer took up the woman's case.

The Court used international law (CEDAW) in enacting guidelines for combating sexual harassment in the workplace. ''Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof.'' Using CEDAW as a guideline, the Court ensured that women would be better protected in the workplace, as to violate the Court's standards protecting women would be a breach of the law.

(found in ''Gender Justice through Public Interest Litigation: Case Studies from India'' by Avani Mehta Sooc, Vanderbilt Journal of Transnational Law, Volume 41, Number 3, May 2008, pp. 836-837, 863, 866-867)

In at least some of the above cases, the Court drew support from international covenants, including CEDAW. The Court relies on CEDAW to be able to interpret personal laws in a way that bolsters women's equality.

(''The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards [sic] the promotion of equality between men and women etc.'')

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 593)
The Court, in interpreting the Hindu Succession Act, gave women the absolute right to property even when a will would ostensibly have limit the woman's right to the property. (found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 592)

Municipal Corp. of Delhi v. Female Workers, A.I.R. 2000 S.C. 1274. The Court interpreted the Maternity Benefit Act to authorize maternity benefits to women who were essentially day laborers. Id.

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 591-592)

Ara v. Uttar Pradesh, A.I.R. 2002 S.C. 3551; Singh v. Ramendri Smt., A.I.R. 2000 S.C. 952; Satpathy v. Dixit, A.I.R. 1999 S.C. 3348; Sesharathamma v. Manikyamma, (1991) 3 S.C.R. 717; Kaushal v. Kaushal, A.I.R. 1978 S.C. 1807. The Court did this when interpreting the Code of Criminal Procedure: ''The brood presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it [is] to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause - the cause of the derelicts.'' Singth v. Ramendra Smt., A.I.R. 2000 S.C. 952 (quoting Kaushal v. Kausha, A.I.R. 1978 S.C. 1807)

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, p 590-591)

This was a class action by social activists and NGOs responding to the gang rape of a social worker. The Court looked to international law and designed rules to combat sexual harassment: ''Any International Convention not inconsistent with the fundamental right and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.'' Thus, in India, in the absence of domestic law, gender equality should be interpreted in light of international conventions and norms. The Court looked to CEDAW when it said that ''[g]ender equality includes protection from sexual harassment and the right to work with dignity.'' The Court then drafted a detailed sexual harassment code and imposed a duty on employers (ostensibly both public and private) to prevent sexual harassment in the workplace and to provide a grievance option for employees.

For these above cases, the Supreme Court of India relied on international law and saw the issue of gender violence as an equality issue. It found that freedom from gender violence was a constitutionally protected right. (found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, pp. 560, 609-613)

 

(holding that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty).

A supervisor allegedly sexually harassed an employee. The Supreme Court restored the supervisor's removal. In doing so, it relied on international instruments to find that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty.

A man sucked a 16-year-old woman’s breasts. The High Court of Fiji rejected the notion that the defendant’s sentence should be reduced for his good behavior after the incident and because there was no penetration. The Court cited the CRC in so doing.

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The Supreme Court of Bangladesh ruled in favor of sex workers and ordered the government to clean up its police force, which had problems with corruption. The police had violently evicted sex workers from their homes in the middle of the night, raising issues of unreasonable search and seizure. The Court encouraged the government to adopt a Code of Conduct for the police immediately, modeled on the Code of Conduct for Law Enforcement Agencies, which had been adopted by the General Assembly of the United Nations.

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Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

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