GENDER EQUALITY AND THE LAW VOLUME: I

Category
BAYAN
About This Project

DATE: AUGUST 2003

Achieving Equality: Preventing Violence Against Women      – Justice Catherine A. Fraser
This article reviews the high level of commitment to gender equality and the prevention of violence against women expressed in international law, especially in instruments like CEDAW and DEVAW. The author elucidates the concept of equality and the significance of a contextual equality analysis by giving an overview of different models of equality and looking at how equality principles have changed to accommodate the diverse life circumstances of men and women. She traces the evolution of substantive equality, in the light of the limitations of other models of equality, and highlights its significance in preventing violence against women. She deems it imperative that all judges acquire knowledge about international human rights laws and understand the contemporary language of equality.Enforcing Fundamental Rights of Equality – Justice Sabihuddin Ahmed
In this paper, the author has studied the scope and powers of Pakistan’s Superior Courts, as far as affirmative action for the enforcement of fundamental rights of equality – against state functionaries as well as against private parties – is concerned. The Honourable Justice Sabihuddin discusses the fundamental differences and social contexts of the US Supreme Court vis a vis Pakistani Superior Courts, and assesses how far it is correct to follow the precedents of the US Supreme Court. He argues that in Pakistan, the power to enforce the rights conferred by the Constitution are the responsibility of the Courts, and that affirmative action for improving the condition of women and other disadvantaged sections of society is not the sole responsibility of the legislature. He examines what “equality before the law” and “equal protection of laws” really means in Pakistan’s Constitutional context, with reference to the distinction between legal/formal and genuine/real equality.
Independence, Impartiality, Equality – Justice (R) Claire L’Heureux-Dubé
In her overview of the formal versus substantive equality dialogue, the author highlights the Canadian equality jurisprudence. She articulates that in Canada, self-awareness has allowed increasing cognizance of the fact that constituent elements of society often do not conform to the traditionally dominant values and power structures, which have been shaped mostly by white men. In accentuating judicial independence and impartiality in this equality context and explaining how equality is made possible and enhanced by an independent and impartial judiciary, she discusses some of Canada’s experiences with equality jurisprudence. She believes that integral to satisfying the demand of justice is the achievement of equality in the process and in the outcome, since inequality is injustice and inevitably injustice leads to oppression.Access to Justice – Justice (R) Nasir Aslam Zahid
In this paper, the Honourable Justice (Ret’d) Zahid, emphasises the critical importance of a system of justice that is efficient, expeditious and economical, and assures the provision of justice both substantively and procedurally. He points out how the provision of this form of justice is a test of the level of civilisation for a state, and goes towards fulfilling the obligations of a welfare state. His assertion is that social justice beyond the courtroom is extrinsically interactive with economic, political and legal justice, and is concomitant with the existence of the welfare state. The author shows how access to justice and the justice system is a greater problem for the marginalized sections of society, especially women and the poor, for whom justice means living without fear and discrimination in an atmosphere where basic rights and mutual respect are assured to all, equally. He goes on to examine the extent to which justice is accessible to the common citizen by sharing his personal experience in the particular situation of Karachi’s Women’s Prison.Parallel Justice: Afghan Refugee Women & Customary Law – Rubina Saigol (Ph.D.)
This paper examines the position of Afghan refugee women in light of the customary laws that govern their lives. The author believes that women have been the most directly affected by the reinforcement of patriarchies that accompany the reconstruction of ethnic identity in conflict. She argues that the weapons most commonly and predictably deployed in this re-enactment of patriarchies, are ‘culture’ and ‘tradition’ and that the forms of dominant religion, tradition and cultural practice most often invoked as the continuation of past glory, tend to be manifestations of a latent or visible patriarchal urge. Reflecting on efforts made at the international level to advocate participation of Afghan women in the peace process, she emphasises the fact that Afghan women reject the rule of military factions and tribal norms, and demand a state that is democratic and accountable to its citizenry.Women, Minorities & Hudood Laws In Pakistan – Naeem ShakirIn this paper, the author discusses how the introduction of the Hudood Laws in Pakistan is grossly discriminatory to both religious minorities as well as women, and uses examples of actual cases where these are manifested. He specifically emphasises the scope and extent of the Zina Ordinance, and highlights the contradictions and conflicts inherent in it by considering the differences in opinion amongst the various Islamic schools of thought. He also questions the validity of the Hudood Laws against the Constitution of Pakistan.

That Which Lies Within – Naina Kapur & K.Geeta
Through this paper, the authors have described the experience of their organisation (Sakshi, New Delhi) during a project that was aimed at helping women achieve judicial equality. The project worked closely with Judges and NGOs from the Asia-Pacific region, and was a process whereby both participating Judges and NGOs were given an opportunity for self-introspection. Among the results, many participants found that some of their deeply ingrained attitudes and biases about women, the judicial system and civil society activists, underwent a reassessment and a shift in focus.

Claiming Sacred Authority – the Proposed Hisba Act – Neelam Hussain
“Not surprisingly therefore, the recent adoption of the Shariat Bill and the Hisba Act has a ring of dreadful familiarity. Like its precursor, the Hudood Laws of 1979, which institutionalised and gave legal sanction to practices based on early Mosaic law and retrogressive readings of the Quran, the Hisba Act – yet another gesture in the name of religion and morality – will give legal cover to actions that are explicitly and implicitly violative of the fundamental and democratic rights of all citizens.”

Gender Equality and the Law – a comment – Salma Sobhan
“The proposition that I wish to explore is that it is precisely because lawmakers and the drafters of statutes see the issue of gender equality as a matter of words rather than of concept that one comes across disparity between what the law is presumed to say and what happens in practice.”

Poetic Justice – Eds.
“Judges have long been enjoined from the use of humor at the expense of the litigants before them for reasons that should be apparent. The Supreme Court quoted Justice George Rose Smith of the Arkansas Supreme Court in this context,
…Judicial humour is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down.
(Smith, A Primer of Opinion Writing, For Four New Judges, 21 Ark. L. Rev. 197, 210)”

Shari‘a Law and Society – Mujtaba Jamal
“Shari‘a Law and Society has been written at a time when Muslim societies of the day are equally affected by the memories of a glorious past and the challenges of an uncertain future. These societies are experiencing ever-growing conflicts between those who advocate strict and blind adherence to the letter of the Sharia law and those who seek dynamic interpretation of the tenets of the same. It is indeed important for the survival, if not the progress, of Muslim societies to acknowledge, understand, analyse and resolve these conflicts as they deeply affect the fabric of almost all Muslim societies.”