Role of Judiciary Gaps Between Domestic Legislation and CEDAW
Transcript of Role of Judiciary Gaps Between Domestic Legislation and CEDAW
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Imrana Jalal
Senior Social Development Specialist (Gender), ADB, ManilaInternational Commission of Jurists, Commissioner, ICJ,
Geneva
Southeast Asia Regional Judicial Colloquium
Bangkok, 3-5 Sep 2013
Romancing and Flirtations with
CEDAW: The Role of the Judiciary in
Identifying Gaps between DomesticLegislation and CEDAW
The views expressed in this paper are the views of the authors and do not necessarily reflect the views or policies of the Asian Development Bank (ADB), or its
Board of Governors, or the governments they represent. ADB does not guarantee the accuracy of the data included in this paper and accepts no responsibility for
any consequence of their use. The countries listed in this paper do not imply any view on ADB's part as to sovereignty or independent status or necessarily
conform to ADB's terminology.
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Trends Judicial approaches toIHRL in developing countries -DCs Traditional doctrine of non-enforceability of intl human rights law
(IHRL) waning in most developing country regions (dualist
approach) eg British common law law IHRL cannot apply after
ratification until specifically domesticated
Doctrine of enforceability/monist international and national law
part of the same system Most DCs now - Judiciary is part of the State, CEDAW is state
obligation, legitimate source of law and can be resorted to when
appropriate; legitimate expectation
CEDAW is a tool, a source of law, fill a lacunae, aid in
interpretation, resolve an ambiguity, further justification etc
South Asia, Africa, Pacific Islands, Latin America all have strong
trends towards applying and drawing on CEDAW and other IHRL
SEA more limited cautious approach
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Judicial Declarations
Judicial Declarations have paved the way for other judges
Bangalore Principles 1988
Victoria Falls Declaration 1994
Hong Kong Conclusions 1996
Georgetown Recommendations 1997
Pacific Islands Judges Declaration 1997
All formulated, drafted and endorsed by Judges
JJs have role in identifying gaps between domestic legislationand CEDAW, especially if they state they cannot apply CEDAW
owing to absence of domestic legislation
Many JJs from all types of legal systems apply CEDAW as an
interpretive principle and tool/aid without domestic legislation
because enough in Constitution on gender equality to justify it
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They certainly have a role in identifying gaps between the
case that they are adjudicating, and whether or not they
fall short of the standards of CEDAW (if ratified by that
country and argued by counsel). South Asia, Africa, and the Pacific Judges (including
French system Vanuatu) have been the most advanced
from a regional perspective.
Socially activist courts? Bansal v Union of India (HighCourt, Madhya Pradesh, Singh, No 9061/2008, 2012 -
State government was ordered to increase its efforts to
implement a national program to reduce maternal
mortality in rural India outside legal field to
economic/social issues
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Application of CEDAW depends on: flirtations,romances, full blown affairs?
Practice of that country/region, Whether the country is monist/dualist,
Attitude of executive branch/independence of judiciary,
Exposure of Judges to continuing judicial education,
Willingness of counsel/lawyers/advocates to pitch innovative
arguments/submissions using CEDAW, persistence/tenacity
Absence/presence and use of regional human rights frameworks/mechanisms
and recourse to IHRL committees
Constitutional provisions on equality/application of IHRL
Judicial declarations
Degree of litigation on womens rights/human rights (e.g. is it a litigious society?)
ease of access c.f. India process direct petition
Attitude/perceptions of gender equality of individual judges, latter is mostimportant variable, individual variations are quite striking even within the same
country
No case has been overturned on appeal on the basis of application of CEDAW?
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SEA decisions applying
CEDAW Philippines, Marcos v Elections Commissions, womens political
participation, 1995 (several cases)
Indonesia, Hasibuan v Indonesian Labour Union & Ors, womens
employment, 1988 MalaysiaNoorfadillascase, womens employment- CEDAW
has the force of law binding on Malaysia, (On 27/6/2013, the
Malaysian government withdrew its appeal, therefore the High
Court judgment stands), second case applying CEDAW
Hong Kong Equal Opportunities Commission v. Director ofEducation, Education of girls, (June 22, 2001)
Supreme Court of Philippines has in several cases citedCEDAW. ... Unlike Myanmar, China, Vietnam and Laos
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Challenges
JJs concern about overtaking role of legislature/separation of
powers
JJs - Applying CEDAW ignores national contexts
Misplaced belief that applying CEDAW is a bias towards
women, will impinge on their neutral and independent status,
but CEDAW requires the removal of bias, level playing field to
address systemic and historical wrongs and proactive efforts to
enable fair and equitable decision making
Nor does it mean women always win but rather that CEDAW
enables fair decision making regardless of who wins. No Judge wants particularly to be the first one in the country to
apply CEDAW
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.and more Challenges .
One argument is that the inherited British common law system
allows for greater application of human rights but common law
is historically dualist and aspired to doctrine of non-
enforceability
Non-British common law Philippines, Indonesia, Japan (limited
application but did not dismiss CEDAW as not being relevant)courts have applied and/or referred to CEDAW
Availability of good precedents
Continuing judicial education most important determinant
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Thank you!