Enforcing Rights and Correcting Wrongs - Asia-Pacific Regional ...

the university in the High Court and got a verdict in
their favour. The Court held that University’s decision
to exonerate the perpetrator and expel the students
was “without lawful authority”. 37 The Court’s ruling is
significant in two ways: one, it reinforces the importance
of common law in providing legal protection to victims
of sexual offences; and two, it sets a precedent which can
act as a deterrent for future perpetrators. In addition, the
Court, during the case hearing, observed that rigid rules
of corroboration and standard of “beyond a reasonable
doubt”arenotalwaysrequiredtosubstantiateallegationsof
sexual harassment. This points to a positive emerging trend
within the region – realization among the legal fraternity,
judges in particular, of the importance of having flexible
rules of evidentiary requirements for sexual offences.
Judicial precedents may also stand in the way of
achieving substantive equality for all. In 2008, the Sri
Lankan Supreme Court, in a rape case, concluded that
the minimum mandatory sentence for rape and other
sexual offences was tantamount to interference with
judicial discretion by the legislature. The Section 364(2)
(e) of the Penal Code (as amended by Penal Code
(Amendment) Act No. 22 of 1995) prescribes a minimum
mandatory sentence of 10 years the offence of rape. The
Court observed that the minimum mandatory sentence
is in conflict with Articles 4 (c), 11 and 12 (1) of the
Constitution and that the High Court is not inhibited
from imposing a sentence that it deems appropriate in
the exercise of its “judicial discretion” notwithstanding
the minimum mandatory sentence. 38
InthePacificregion,therearenumerouscaseswherejudges
have protected and upheld women’s freedoms and rights
through just rulings and progressive precedents (Box 2).
3. Multiple Influences on Law
3.5 International legal standards for
gender equality
International agreements can be important benchmarks
to guide gender equality and internal support groups.
Countries of Asia-Pacific have pro-actively used them
to influence domestic legislation. The Convention on
the Elimination of All Forms of Discrimination against
Women(CEDAW)offersacomprehensiveframeworkfor
gender equality based on the principles of equality, nondiscrimination
and state obligation. 39 The Convention’s
substantive equality framework is applied outside as
well as inside the home. In its preamble the Convention
explicitly acknowledges that ‘‘extensive discrimination
against women continues to exist’’ and emphasizes that
such discrimination ‘‘violates the principles of equality
of rights and respect for human dignity’’. Article 1 of the
Convention defines discrimination as ‘‘any distinction,
exclusion or restriction made on the basis of sex….
in the political, economic, social, cultural, civil or any
other field’’. Articles 2–4 cover the general obligations
of States Parties. Articles 5–16 include substantive
provisions i.e. employment, education, health, political
participation, nationality, rural women, trafficking etc.
(Annex: Table 2). 40
Out of 39 Asia-Pacific countries, 35 states have ratified or
acceded to the Convention. 41 This is a positive change. But
this change has not come without “reservations” – a device
allowing countries to opt out of parts of the Convention.
Most objections to CEDAW have been on grounds of
supremacy of constitutional and national laws, obligations
based on religion and reluctance to modify discriminatory
social and customary practices. 42
BOX 2. Toakarawa V the Republic of Kiribati – A Case of Domestic Violence
In 2006, Kiribati Court of Appeal took a strong stand on domestic abuses within family and in a ruling observed
that domestic violence is not a “private matter” but should be treated as a serious crime. The Chief Justice
sentenced the perpetrator (husband) to three years imprisonment for causing permanent injuries to his wife.
In addition, the Court of Appeal refused to entertain the perpetrator’s request for a reduced sentence.
Source: Kiribati Court of Appeal 2006.
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