Role of Judiciary Gaps Between Domestic Legislation and CEDAW

7/29/2019 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!

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Role of Judiciary Gaps Between Domestic Legislation and CEDAW