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

5. Barriers of Access
Apart from the content of the law and legal practices,
access to justice systems – formal and customary – can
also be very different for males and females, even when
laws are sound. This section explores gender-based barriers
of access to legal institutions like courts, and also barriers
inside courtrooms. Globally, four billion people – most
of the world’s population – are excluded from the rule
of law 96 , with gender being an important contributory
factor. Women, more than men, may not be able to access
justice mechanisms to seek redress. 97
5.1 Barriers to reaching courts
A number of factors may restrict women’s full access
to formal and customary justice systems. The most
obvious is opportunities to travel – courts may be too
far and social norms may limit female mobility without
facilitation or permission from a male relative, sometime
the very person against whom a woman is seeking redress.
Women’s disproportionate household responsibilities can
leave limited time for complicated legal processes and
frequent interactions with the lawyers. They may face
physical threats in pursuing action against husbands, other
family members, or even the broader power structure.
Fear of losing children or economic sustenance can be
very real. Norms that require women to remain silent may
be internalized, when they come to believe themselves as
being of less value less and deserving less. 98 The sheer costs
of access to police stations, lawyers, travel and stay can be
a deterrent. This is even more so for the poor.
In respect of customary mechanisms, women may be
excluded through factors such as ineffective enforcements
of decisions (mandatory or voluntary), elite capture,
procedures contrary to national and international
standards. Lack of well understood minimum standards
for mediators may also curtail women’s expectations
within customary justice systems, and deter them from
access. 99 At times, factors like custom and tradition
explain why some women never access justice systems.
A survey carried out by the Cambodian Ministry of
Women’s Affairs found that even though over 22 per cent
of married women report experiencing violence within
their homes, 100 up to 89 per cent do nothing, despite new
national laws to protect them from such violence. Those
who do report can face customary expectations of violence
being a private issue and a prerogative of men. 101
To overcome access barriers, countries have taken steps
to bring judicial mechanisms closer to women. In
Afghanistan, the Government has introduced mobile
courts as a practical solution to improve overall access.
Teams of experienced judges, prosecutors, lawyers and
administrative officials make periodic visits to more
remote or insecure places that may be too small to justify
permanent staffing. 102 India has taken a step forward on
the issue of sexual harassment by requiring workplaces
that employ women to set up commissions that are at least
50 per cent female to receive and act on complaints. 103
Malaysia has pioneered one-stop centres in hospitals that
provide easy access to medical care, social services and
specially trained police units for victims of domestic or
sexual violence. 104
5.2 Barriers inside courtrooms
Even when women do find their way to legal institutions,
finding equal treatment cannot be taken for granted.
Judicial practices may also be influenced by discriminatory
social norms that undervalue women’s rights or concerns,
or treat them less than seriously. The onerous court
procedures are also a factor.
Most countries in the Asia-Pacific have a fault-based
divorce system. This requires proof of a matrimonial
offence such as adultery, desertion for a required number
of years, willful refusal to consummate marriage, habitual
cruelty, etc., which can force women to face indignities.
In a study conducted to assess national laws compliance
with CEDAW, all five Asian countries grant divorce on
certain grounds only (Table 2). In addition, parties must
hire lawyers, file court cases and bring witnesses to court to
24 Enforcing Rights and Correcting Wrongs