Enforcing Rights and Correcting Wrongs - Asia-Pacific Regional ...
Enforcing Rights and Correcting Wrongs - Asia-Pacific Regional ...
Enforcing Rights and Correcting Wrongs - Asia-Pacific Regional ...
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4. Barriers of Laws<br />
Laws in <strong>Asia</strong>-<strong>Pacific</strong> continue to fall short of fully<br />
embracing notions of equality for all citizens. While some<br />
progress has been made, this section examines barriers in<br />
the substantive content of laws themselves that come in the<br />
way of women’s full enjoyment of equal legal rights. Laws,<br />
as constructed, may be inconsistent or have gaps. In some<br />
cases they may be absent altogether when a systematic<br />
gender-linked circumstance is not recognized. Such<br />
barriers in the provisions of laws can be patent or latent.<br />
4.1 Patent barriers<br />
Across the region, many discriminatory laws hold women<br />
(<strong>and</strong> other disadvantaged people) back. From general<br />
constitutional provision on non-discrimination, unequal<br />
penal code provisions <strong>and</strong> nationality laws, lack of laws<br />
against violence against women, protectionist labour<br />
laws to diversity in personal laws – the list of legal gender<br />
inequalities is long.<br />
General constitutional provisions on non-discrimination<br />
open doors for wide interpretation. An obvious place for<br />
locating an overt barrier in national legal systems is the<br />
constitution – the basis for securing further rights across<br />
legal systems. Most countries in the region provide only<br />
general constitutional guarantees of equality <strong>and</strong> nondiscrimination<br />
for various groups, including women.<br />
South <strong>Asia</strong>n countries, with the exception of Nepal, refer<br />
4. Barriers of Laws<br />
to the biological sex, rather than the broader definition<br />
of gender, which include socialized roles <strong>and</strong> behaviours.<br />
Discrimination is not defined, <strong>and</strong> the prohibition<br />
mostly applies to the state, excluding the growing private<br />
sector. The lack of constitutional definitions on gender<br />
equality allows laws <strong>and</strong> court systems wide latitude in<br />
interpretation, including in ways that can perpetuate<br />
discrimination.<br />
Most East <strong>Asia</strong>n countries prohibit discrimination<br />
on the grounds of sex <strong>and</strong> mention equality in their<br />
constitutions. Lao People’s Democratic Republic <strong>and</strong> Viet<br />
Nam have gone further in defining the specifics of gender<br />
equality <strong>and</strong> non-discrimination in their constitutions.<br />
Both have consequently been able to assign penalties for<br />
discriminatory acts through legal provisions. 50 Malaysia<br />
also added the word “gender” in its constitutional<br />
provision that led to the review of its legal system (Box 3).<br />
China’s constitution stipulates that men <strong>and</strong> women<br />
should enjoy equal rights in all spheres of life but does<br />
not clearly define discrimination. 51 It lacks specific legal<br />
provisions on some issues integral to achieving gender<br />
equality such as a guarantee of equal pay for equal work<br />
despite persistence of wage gaps. 52<br />
In countries of the <strong>Pacific</strong>, most constitutions have a<br />
general equality provision with specific definitions of<br />
discrimination in which citizens are entitled to certain<br />
BOX 3. Constitutional Provision on Gender Discrimination Paves the Way for Legal<br />
Review in Malaysia<br />
In 2001, Malaysia added the word “gender” to a constitutional provision against discrimination that includes<br />
religion, race, descent <strong>and</strong> place of birth. This seemingly simple change prompted a broad review of all<br />
legislation, including laws on domestic violence, marriage <strong>and</strong> divorce, <strong>and</strong> l<strong>and</strong>. While there is still no clear<br />
definition of “discrimination against women” in Malaysian law, the change has eliminated any legal argument<br />
that gender-based discrimination is permissible.<br />
Source: CEDAW 2004d.<br />
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