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

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