Gender Equality & The Law Volume I

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.