EDITED BY LORNA TIROL FINAL DOC
4th draft CEDAW to Conclusion Dec 4.05
The CEDAW
In the interpretation of domestic laws, or when domestic laws are lacking or
insufficient to protect women from discrimination, judges can use the United Nations
Convention on the Elimination of All Forms of Discrimination Against Women or the
CEDAW.
Often called the international Bill of Rights of women, the CEDAW was
adopted by the UN General Assembly on December 18, 1979 and came into force as a
treaty on September 3, 1981.
With 180 ratifications, the CEDAW is second to the
Convention on the Rights of the Child as the human rights instrument in the United
Nations with the highest number of ratifications. A copy of the CEDAW is in Appendix
____,.
The CEDAW Committee in 1992 issued General Recommendation No. 19, which
provides that gender-based violence is an issue of gender discrimination and that states
should comment on this matter in their reports to the CEDAW Committee .
On
December 20,1993, the UN General Assembly adopted the Declaration on the
Elimination of Violence against Women (DEVAW), (ENDNOTE: Resolution 48/104)
which defined violence against women for the first time and enjoined governments to
take specific measures to eliminate VAW. The definition of VAW in the Anti-Violence
Against Women and their Children Act of 2004 was patterned after the definition in the
DEVAW. A copy of the DEVAW is in Appendix _______.
Radhika Coomaraswamy, former United Nations special rapporteur on violence
against women [ ENDNOTE : “Reinventing International Law: Women's Rights as
Human Rights in the International Community,” Edward A. Smith Lecture, Human
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Rights Program, Harvard Law School, March 12, 1996], notes that violence against
women can be committed by individuals as well as by the State, and we quote:
This declaration provides the normative framework for all international
action in the field of violence against women. Article 1 defines violence
against women as "any act of gender-based violence that results in, or is
likely to result in, physical, sexual or psychological harm or suffering to
women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or private life." Violence includes, but
is not limited to, physical, sexual and psychological violence in the family
such as battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and other
traditional practices harmful to women. The Declaration also calls on
states to condemn and eliminate all forms of violence against women in
the general community. These include rape, sexual abuse, sexual
harassment and intimidation whether at work, in educational institutions
or elsewhere, as well as trafficking and forced prostitution. Finally it
recognizes that violence can be perpetrated as well as condoned by the
state.
The CEDAW comprehensively addresses all the spheres in women’s lives, such as
the civil, political, economic, social, and cultural, including family life. Among the rights
guaranteed to women is the right to be free from all forms of violence-- physical, sexual,
emotional, mental or economic (Art. 6).
It carries with it the principle of State
obligation, which means that women are no longer dependent on the goodwill of the
State; rather, the State has responsibilities to women from which it cannot withdraw.
Included in these State obligations is the duty to enact laws and policies for the
protection and empowerment of women, and those that ensure gender equality. The
CEDAW prohibits actions and policies that discriminate against women or put them at a
disadvantage.
The Philippine government signed the Optional Protocol on the CEDAW on
March 21, 2000 and ratified it on November 12, 2003. The Optional Protocol is an
inquiry procedure through which the CEDAW Committee can review complaints filed by
individual women for grave and systematic violation of their rights guaranteed by the
Convention. It came into force on December 22, 2000. As of December 17, 2004, of the
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180 States Parties to the CEDAW, 756 countries have become signatories to the Optional
Protocol.
Salient features
The CEDAW defines discrimination as “any distinction, exclusion or restriction
made on the basis of sex, which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status on a
basis of equality with men, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.”i This definition recognizes both direct
and indirect discrimination, and includes those that have discriminatory effects despite
the lack of intention to discriminate. Indirect discrimination may result from genderneutral laws or policies that have failed to consider the differing experiences of women
and men, or from potential discrimination arising from institutionalized structures that
are not sensitive to women’s needs and interests. More importantly, the concept of
equality envisioned in this definition does not mean only formal equality (de jure) but
also substantive equality (de facto) or equality of results.
Another feature of the Convention is its recognition that despite the granting of
legal rights to women in most countries, women’s rights continue to be impaired by the
persistence of social, cultural and customary practices,ii which are based on the
stereotype roles of women and their perceived “inferiority” to men. An important
contribution of the CEDAW to human rights theory is the recognition that
discrimination and
violations of women’s human rights occur in both the public and
private spheres, and that states have an accountability to address and prevent both
violations, regardless of their source.iii
By accepting the Convention, states commit to the obligation to end
discrimination against women, including: a) to incorporate the principle of equality of
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men and women in their legal system, abolish all discriminatory laws and adopt
appropriate ones prohibiting discrimination against women; 2) to establish tribunals and
other public institutions to ensure the effective protection of women against
discrimination; and 3) to ensure elimination of all acts of discrimination against women
by
persons,
organizations
or
enterprises.
(ENDNOTE:
http://www.un.org/womenwatch/daw/ )
The Work of the CEDAW
As a treaty monitoring body, the CEDAW Committee plays a critical role in
monitoring the implementation of human rights treaties by states parties. Governments
that have ratified the treaty assume an obligation to implement the provisions of the
treaties, submit written reports and voluntarily engage in constructive dialogue with the
Committee. The CEDAW utilizes various procedures in its task of monitoring states
parties to the Convention. These include reporting procedure, individual and inter-state
complaint procedures, and the communication and inquiry procedures.
The reporting procedure of the CEDAW ensures that countries are accountable in
implementing the provisions of the treaties that they have ratified at the national level.
Reporting is at the core of the institutionalization of the human rights system. Through
reporting, a state’s compliance and adherence to its human rights treaty obligations is
concretized.
Reporting enables the states parties to review compliance of their domestic laws
and policies with the provisions of the Convention, as well as to monitor the progress of
reforms by evaluating the report based on previously set goals. It promotes national
accountability of states in fulfilling their international human rights obligations. The
preparation of a report is an important process and an opportunity to consult and
encourage the participation of women’s groups and other sectors of civil society iv
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The CEDAW Optional Protocol is the “first woman-specific mechanism allowing
an individual to contact the UN directly.”
v
It opens up a channel and a mechanism to
hear women’s voices and address complaints of human rights violations against women.
The Optional Protocol contains two procedures: first, a communication procedure (or
individual complaints procedure) which allows individual women or groups of women to
submit claims of violations of rights; and second, an inquiry procedure enabling the
Committee to initiate inquiries into situations of grave or systematic violations of
women’s human rights. vi
The individual complaints procedure, or the Optional Protocolvii to the CEDAW,
helps
strengthen the enforcement
of treaties by giving individuals and groups of
individuals the right to refer to the Committee any violations set forth in the Convention
after all domestic remedies have been exhausted.viii The complaint must be written and
signed by the complainant under the jurisdiction of a state party to the Convention. ix The
Committee then issues its Concluding Comments highlighting a state party’s serious
violations, and recommends preferable action to be taken by the state party. It also gives
its General Recommendations, clarifies the reporting duties of states parties regarding
provisions of the Convention, and suggests approaches for their implementation.
Considered as persuasive interpretations of these provisions, although not binding on
the state, the General Recommendations are an indispensable reference or interpretation
of the substantive meaning of specific articles of the Convention.
Enforceability of CEDAW at the Domestic Level
Over the last three decades, the treaty bodies have produced an extensive body of
literature and practice on human rights which have become important sources on the
interpretation of the treaties. These are based on reports by individual states parties
submitted to the United Nations for review, discussions during the “constructive
5
dialogue,”
general recommendations
adopted by the Committees,
concluding
observations, decisions of a committee adopted in a case submitted, or the results of an
inquiry conducted by the Committee.x
The strength and effectiveness of human rights treaties depend to a large extent
on the willingness and political will of states parties to enforce the provisions of such
treaties through incorporation of their principles in constitutional changes, enabling
legislation and executive policies, as well as judicial decisions that interpret these
statutes in light of the provisions of the CEDAW.xi
The enforceability of the CEDAW’s provisions at the national level also depends
on the incorporation of international law in the domestic system of the State party. In
some countries, treaties are automatically incorporated in domestic law, while other
countries, like the Philippines, require appropriate legislation. Some countries provide
that international standards be considered when the constitution is interpreted in
judicial decisions. xii
The lack of knowledge of these materials by national courts and advocates
hinders the ability of courts to utilize the outputs and jurisprudence generated by the
human rights treaty bodies. The availability of international review of the national
decision and the accessibility of international standards, as well as the general attitude of
the national courts to international law, greatly affect the level of enforceability of a
treaty at the domestic level.xiii
Among the notable initiatives on constitutional reform is that taken by Brazil,
when it revoked the principle of the husband’s leadership (chefia) of the family unit and
established
that the “rights and duties relating to the conjugal unit are exercised
equally by man and woman (Article 16 of the Women’s Convention). The Brazilian
constitution now contains provisions on gender equality, gender-based violence, State
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responsibility for the prevention of domestic violence, equality of rights within marriage,
family planning and equality in employment.xiv
The Philippine Constitution, in its declaration of state policies, states that it
“recognizes the role of women in nation building and ensures the fundamental equality
before the law of women and men.”xv In Malaysia, the constitution was amended to
include gender as a prohibited ground for discrimination and to abolish discrimination
in the Distribution and Guardianship Act. In 2004, Malaysia announced
its policy of
ensuring that 30 percent of senior decision-making positions will be given to women.xvi
In Thailand, forcing women to change their name after marriage is unconstitutional
and violates the principle of equality.xvii
The CEDAW and Legislative Reforms
Perhaps one of the most important changes brought about by the CEDAW has
been in the area of legislative reforms. The active engagement of women’s groups with
the UN and their respective governments on the need to introduce laws to address
urgent women’s issues, such as violence against women and property and land rights, as
well as to amend discriminatory laws, has led to some legislative breakthroughs.
After the Beijing Conference on Women in 1995 and the World Conference on
Human Rights in 1993, many countries introduced laws addressing domestic violence ,
sexual harassment, rape, female genital mutilation, and trafficking of women and
children. General Recommendation 19 on Violence Against Women provided useful and
concrete guidelines for governments to enact laws addressing this issue. More than a
hundred countries have enabling laws creating government agencies to take charge of
gender or women’s affairs with varying powers and authority.
The Philippines’ Republic Act No. 9262, otherwise known as the Anti-Violence
Against Women and their Children Act of 2004, and Republic Act No. 9208, otherwise
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known as the Anti-Trafficking in Persons Act of 2004, were passed in compliance with
its state obligation under the CEDAW. As to women’s legal capacity, the Philippines has
enacted Republic Act No. 7192, or the Women in Nation Building Law, which promotes
the integration of women as full and equal partners of men in development and nation
building. It provides for a minimum of 30 percent of all official development funds to be
allocated for development programs that would benefit rural women.xviii South Africa
has repealed the Black Administration Act of 1927, which provided that married women
had inferior status.xix Tunisia repealed the requirement of the husband’s authorization
for married women to sign service contracts.xx Malawi granted women
capacity
equal legal
to enter into contracts and to acquire and maintain property rights.xxi The
Brazilian Civil Code of 2002, on the other hand, provides for the equality of rights and
duties of the spouses and for the application, in the absence of a prenuptial agreement, of
a regime of partial community property,
with each spouse having equal rights to
administer common property and to administer his or her separate property.
The CEDAW in Philippine jurisprudence
Although it had been cited in Supreme Court decisions in the past, the CEDAW
was first used as an argument in a litigation only in 2004. In a class suit filed by a group
of female flight attendants of Philippine Airlines, titled Halaguena et al1 versus
Philippine Airlines,2 the petitioners, in a Petition for Declaratory Relief, prayed that the
provisions in the Collective Bargaining Agreement (CBA) between the flight attendants’
union and the airline that were discriminatory against female flight attendants be
stricken down as unconstitutional, unlawful, and violative of the CEDAW. The CBA
Of the petitioners, Bernadette Cabalquinto was compulsorily retired while the case was
pending, and even after an iInjunction was issued by the Regional Trial Court. About 560 female
flight attendants were affected by this discriminatory provision in their Collective Bargaining
Agreement.
2 Regional Trial Court of Makati City Branch ____, Civil Case No. _________ For: Petition
for Declaratory Relief with Prayer for Injunction.
1
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provided that female flight attendants who were hired before November 1996 would be
compulsorily retired at age fifty-five and their male counterparts, at age sixty.
In Halaguena et al., the counsel for the petitioners argued that the courts, as
agents of the State, have a mandatory obligation to ensure that women are not
discriminated against on account of their gender. The government, through the courts,
must strike down as unconstitutional and contrary to the CEDAW all policies, contracts,
and laws that discriminate against women each time they rear their ugly heads. The
Regional Trial Court granted a temporary restraining order and later, an injunction. The
airline appealed to the Court of Appeals, where the case is still pending.
Although the CEDAW was ratified by the Republic of the Philippines in 1981, or
twenty-four years ago, judges have a low awareness of the CEDAW. Judge Ma. Nimfa
Penaco-Sitaca first learned about it at the 3rd Biennial Conference of the International
Association of Women Judges in February 1996, when then Supreme Court Justice
Flerida Ruth P. Romero3 was president of the Philippine Women Judges Association.
The Supreme Court could take a proactive role in educating judges to use the CEDAW
when domestic law is lacking, vague or incomplete, especially that the Philippine
Constitution (Sec. 2, Art. II) accepts treaties as part of the law of the land.
Today,
discriminatory provisions in the Family Code and other laws remain. Should judges be
called upon to resolve a dispute involving a woman’s right to autonomy, equality, or the
like, they can read the provisions of the CEDAW into our domestic law and use it in their
interpretation, or as an aid to fill a lacuna legis.
There is very little material on the CEDAW in our Supreme Court decisions.
After Justice Flerida Ruth P. Romero’s concurring opinion in 1995 citing the CEDAW in
Imelda Romualdez-Marcos vs. Commission on Elections and Cirilo Roy Montejo (G.R.
3
Wrote a Concurring Opinion in the 1995 case of Imelda Romualdez-Marcos vs.
Commission on Elections and Cirilo Roy Montejo [G.R. No. 119976). This is the first time the
CEDAW was mentioned in a Supreme Court decision, although it is only in a separate opinion.
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No. 119976) that a widow has a right to fix her own domicile distinct from that of her
deceased husband, in 2000 the CEDAW was cited in the footnote of the Supreme Court
decision in Secretary of Justice versus Ralph Lantion, et al. [G.R. No. 139465. January
18, 2000]. Earlier, in 1997, the CEDAW was cited extensively as a State obligation by the
Supreme Court in Philippine Telegraph and Telephone Company vs. National Labor
Relations Commission and Grace de Guzman [G.R. No. 118978. May 23, 1997]. In that
case, private respondent Grace de Guzman was terminated by the Philippine Telegraph
and Telephone Company for having concealed the fact that she was married, in violation
of a company policy against hiring married women. The Supreme Court, through Mr.
Justice Florenz Regalado, eloquently held that:
1. Decreed in the Bible itself is the universal norm that women
should be regarded with love and respect but, through the ages,
men have responded to that injunction with indifference, on the
hubristic conceit that women constitute the inferior sex. Nowhere
has that prejudice against womankind been as pervasive as in the
field of labor, especially on the matter of equal employment
opportunities and standards. In the Philippine setting, women
have traditionally been considered as falling within the vulnerable
groups or types of workers who must be safeguarded with
preventive and remedial social legislation against discriminatory
and exploitative practices in hiring, training, benefits, promotion
and retention.
The Constitution, cognizant of the disparity in rights between men
and women in almost all phases of social and political life,
provides a gamut of protective provisions. To cite a few of the
primordial ones, Section 14, Article II on the Declaration of
Principles and State Policies, expressly recognizes the role of
women in nation-building and commands the State to ensure, at
all times, the fundamental equality before the law of women and
men. Corollary thereto, Section 3 of Article XIII (the progenitor
whereof dates back to both the 1935 and 1973 Constitution)
pointedly requires the State to afford full protection to labor and
to promote full employment and equality of employment
opportunities for all, including an assurance of entitlement to
tenurial security of all workers. Similarly, Section 14 of Article XIII
mandates that the State shall protect working women through
provisions for opportunities that would enable them to reach their
full potential.
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2. Corrective labor and social laws on gender inequality have
emerged with more frequency in the years since the Labor Code
was enacted on May 1, 1974 as Presidential Decree No. 442, largely
due to our country's commitment as a signatory to the United
Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW).
Principal among these laws are Republic Act No. 6727 which
explicitly prohibits discrimination against women with respect to
terms and conditions of employment, promotion, and training
opportunities; Republic Act No. 6955 which bans the "mail-orderbride" practice for a fee and the export of female labor to countries
that cannot guarantee protection to the rights of women workers;
Republic Act No. 7192,
also known as the "Women in
Development and Nation Building Act," which affords women
equal opportunities with men to act and to enter into contracts,
and for appointment, admission, training, graduation, and
commissioning in all military or similar schools of the Armed
Forces of the Philippines and the Philippine National Police;
Republic Act No. 7322 increasing the maternity benefits granted
to women in the private sector; Republic Act No. 7877 which
outlaws and punishes sexual harassment in the workplace and in
the education and training environment; and Republic Act No.
8042, or the "Migrant Workers and Overseas Filipinos Act of
1995," which prescribes as a matter of policy, inter alia, the
deployment of migrant workers, with emphasis on women, only in
countries where their rights are secure. Likewise, it would not be
amiss to point out that in the Family Code, women's rights in the
field of civil law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women
workers are found in Articles 130 to 138 thereof. Article 130
involves the right against particular kinds of night work while
Article 132 ensures the right of women to be provided with
facilities and standards which the Secretary of Labor may establish
to ensure their health and safety. For purposes of labor and social
legislation, a woman working in a nightclub, cocktail lounge,
massage clinic, bar or other similar establishments shall be
considered as an employee under Article 138. Article 135, on the
other hand, recognizes a woman' s right against discrimination
with respect to terms and conditions of employment on account
simply of sex. Finally, and this brings us to the issue at hand,
Article 136 explicitly prohibits discrimination merely by reason of
the marriage of a female employee.
In their interpretation of the Constitution and statutes, as well as in the
development of general legal concepts, courts can draw on the international standards
set by the CEDAW and other human rights treaties.
Established principles of
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international human rights law have a “powerful persuasive factor in interpreting
municipal laws,” as Justice A. S. Anand , chief justice of India, asserts. He also believes it
“a proper part of the judicial process and a well-established judicial function for national
courts to have regard to the international obligations undertaken by the country in
question – whether or not these have been incorporated into domestic law – for the
purpose of removing ambiguity or uncertainty from national constitutions, legislation
or common law.”xxii For this to happen, judges need to be aware of the potential of using
human rights principles, such as those in the CEDAW,
to amplify, enrich, and
strengthen their court decisions.
The use of the CEDAW in other jurisdictions
In Ephorim vs Pastory (Tanzania), Holaria Pastory challenged the Haya
customary law invoked by her nephew to prevent her from selling clan land inherited
from her father. According to Section 20 of the rules of inheritance of Tanzania’s
Declaration of Customary Law, “women can inherit, except for clan land, which they
may receive in usufruct but may not sell.” In its decision, the court cited the fact that the
Tanzanian government had ratified the CEDAW and other human rights treaties which
protected women from discrimination. The Tanzanian High Court decided
that the
rules of inheritance in the Declaration of Customary Law were unconstitutional and
contravened the international conventions which Tanzania had ratified. Thus, the rights
and restrictions on the sale of clan land were declared the same for women and men. xxiii
In Dow vs Attorney-General of Botswana (1992, Botswana), the Botswana
Citizenship Act of 1984, in accordance with the Tswana customary law, declared that the
nationality of a child should follow the father’s nationality exclusively. In 1990, Unity
Dow, a lawyer and activist married to an American, challenged this Citizenship Law.
Two of her children, who had been born in Botswana after the passage of the Citizenship
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Act, required residence permits to stay in Botswana and could only leave on their
father’s passport. They would not be able to vote and would be denied subsidy for their
university education. This, according to Dow, was a violation of the equal protection
assured them under the law and the constitution. Though not yet a State party to the
CEDAW, Botswana amended the Citizenship Act to give equal rights to men and women
with respect to the citizenship of Unity Dow’s children.xxiv
The CEDAW’s General Recommendation 19 on Violence Against Women has also
been extensively cited in the following cases:
 Vishaka v State of Rajasthan, AIR 1997 SC 3015, (1998) 3 BHRC 261 (Supreme
Court of India): The case arose from the gang rape of a social worker by her own
colleagues in a village in Rajasthan and the failure of local officials to investigate.
The case questioned the State’s obligation to protect women from sexual
harassment. Although the CEDAW was not directly part of the domestic law of
India, international covenants can be used by Indian courts to interpret national
laws. In this case, the court not only referred to General Recommendation 19 on
violence against women, it also drew up rules to govern sexual harassment in
employment (pending the enactment of legislation) which drew extensively on
the wording of the General Recommendation 19.xxv
 R v Ewanchuk (1999) 1 SCR 330, 169 DLR (4th) 193 (Supreme Court of Canada)
.:In a case in which the court upheld an appeal against the acquittal of, a person
charged with sexual assault and substituted a conviction. Heureux-Dube’ and
Gonthier JJ in a concurring judgment referred to the CEDAW’s General
Recommendation 19 on Violence Against Women.xxvi
 Carmichele v Minister of Safety and Security and Another, 2001 (10) BCLR
(CC) South African Constitutional Court): In this case, the Court
cited the
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CEDAW’s General Recommendation 19 on Violence against Women, particularly
its reference to the obligation of the State to take preventive, investigative, or
punitive steps in relation to private violations.xxvii
The Supreme Court of India used the CEDAW in Apparel Export
Promotion Council v. Ak Chopra [1999] 1 LRI 13 (AIR 1999 SUPREME COURT 625) and
Vishaka v. State of Rajasthan AIR 1997 SC 3011; (1997) 6 SCC
241. 4 The facts and the decision in Vishaka are as follows:
Following the gang rape of a social worker in Rajasthan, social activists and nongovernmental organizations filed a class-action suit for the realization of the rights of
equality before the law, non-discrimination, the practice of one’s profession, and the
right to life under India’s Constitution. In particular, the petitioners wanted to find
methods to realize gender equality, to prevent the sexual harassment of women in the
workplace, and to use the judicial process to fill a vacuum in existing legislation. The
petition was filed under Article 32 of the Indian Constitution.5 The petitioners also
raised the issue of India’s international obligations under the CEDAW.
In reaching a decision, the Supreme Court of India considered constitutional
rights, the CEDAW, and India’s commitments at the Fourth World Conference on
Women in Beijing to formulate and put in operation a national policy on women, to
establish a Commission for Women’s Rights, and to monitor the implementation of the
Platform for Action. The Court noted that incidents such as the gang rape of a working
woman are in violation of the rights to equality, to non-discrimination, to practice one’s
4
Copy of judgment also available at www.elaw.org.
5 Article 32 of the Indian Constitution concerns, inter alia, the right to petition the Supreme
Court for the enforcement of constitutional rights and the power of the Supreme Court to issue
orders and writs to enforce constitutional rights.
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profession, and to life. In the absence of protective legislation against the hazards to
which working women might be exposed, there is an urgent need for protection by an
alternative mechanism.
In the absence of a domestic law on sexual harassment,
international conventions and norms are significant for interpreting and guaranteeing
gender equality, the right to work with human dignity (found in the rights to equality, to
non-discrimination and to practice one’s profession), and the right to life, and the
safeguards against sexual harassment implicit in those rights.
The decision of the
Supreme Court of India is instructive:
Any International Convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the
constitutional guarantee…
Gender equality includes protection from sexual harassment and right to
work with dignity, which is a universally recognized basic human right.
The common minimum requirement of this right has received global
acceptance.
The International Conventions and norms are, therefore, of great
significance in the formulation of the guidelines to achieve this purpose.
The obligation of this Court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation
must be viewed along with the role of judiciary envisaged in the Beijing
Statement of Principles of the Independence of the Judiciary in the
LAWASIA region. These principles were accepted by the Chief Justices of
Asia and the Pacific at Beijing in 1995 as those representing the minimum
standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary. The objectives of
the judiciary mentioned in the Beijing Statement are "Objectives of the
Judiciary 10 xxx”
Some provisions in the 'Convention on the Elimination of All Forms of
Discrimination against Women', of significance in the present context are
Articles 11 and 24.6 …The Government of India has ratified the above
Resolution on June 25, 1993 with some reservations which are not
material in the present context…
6 Article 11 recognizes the right to work as an inalienable right and concerns States’
obligations to eliminate discrimination in employment and to ensure the protection of health and
safety in working environments. Article 24 concerns States’ obligations to undertake necessary
measures at a national level to fully realize the rights recognized in the CEDAW.
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It is now an accepted rule of judicial construction that regard must be had to
international conventions and norms for construing domestic law when there is
no inconsistency between them and there is a void in the domestic law.
In view of the above, and in the absence of enacted law to provide for the
effective enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly against
sexual harassment at work places, we lay down the guidelines and norms
specified hereinafter for due observance at all work places or other
institutions, until a legislation is enacted for the purpose. This is done in
exercise of the power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further emphasized that
this would be treated as the law declared by this Court under Article 141 of
the Constitution.7
In Apparel Export Promotion Council v. Ak Chopra, the Supreme Court of India
held that:
Any action or gesture, which directly or by implication, aims at or has the
tendency to outrage the modesty of a female employee, must fall under
the general concept of the definition of sexual harassment.
Against the growing social menace of sexual harassment at the workplace,
a three judge bench of this court by a rather innovative judicial law
making process issued certain guidelines in Vishaka v State of Rajasthan
(1997) 6 SCC 241, after taking note of the fact that the present civil and
penal laws in the country do not adequately provide for specific protection
of women from sexual harassment at places of work and that the
enactment of such a legislation would take a considerable time…
…The message of international instruments such as the Convention on the
Elimination of All Forms of Discrimination Against Women 1979
(‘CEDAW’) and the Beijing Declaration which directs all state parties to
take appropriate measures to prevent discrimination of all forms against
women besides taking steps to protect the honour and dignity of women is
loud and clear. The International Covenant on Economic, Social and
Cultural Rights contains several provisions particularly important to
women. Article 7 recognises her right to fair conditions of work and
reflects that women shall not be subjected to sexual harassment at the
place of work which may vitiate [the] working environment. These
international instruments cast an obligation on the Indian State to gender
sensitise its laws and the courts are under an obligation to see that the
message of the international instruments is not allowed to be drowned.
This Court has in numerous cases emphasized that while discussing
constitutional requirements, court and counsel must never forget the core
principles embodied [sic] in the international conventions and
Article 141 of the Indian Constitution states that a law declared by the Supreme Court shall
be binding on all courts within the territory of India.
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instruments and as far as possible give effect to the principles contained
in those international instruments. The Courts are under an obligation to
give due regard to international conventions and norms for construing
domestic laws more so when there is no inconsistency between them and
there is a void in domestic law…In cases involving violation of human
rights, the courts must forever remain alive to the international
instruments and conventions and apply the same to a given case when
there is no inconsistency between the international norms and the
domestic law occupying the field. In the instant case, the High Court
appears to have totally ignored the intent and content of the international
conventions and norms while dealing with the case.
Challenges in Utilizing the CEDAW in Judicial Practice
Over the years, national courts have made increasing use of the human rights
treaty bodies, as shown in a survey of sample cases conducted by the International Law
Association .xxviii
As Prof. Shah Alam notes, qualitative change in international law in the last few
decades seems to have made the participation of domestic courts in the application and
enforcement of international law conceptually inevitable and legally essential”.xxix He
cites several reasons for this assertion:
 First, the concept of hostis
recognition
humanis generic,
of the universal jurisdiction
international or domestic court
individuals
and the resultant
of any duly constituted
for certain crimes,
have
made
subjects of international law. Examples of these are the
Nuremberg and Tokyo International War Crimes Tribunals, the
International Criminal Tribunals for Rwanda and the former Yugoslavia,
as well as the International Criminal Court. The Augusto Pinochet case in
Chile, for instance, has relied on universal jurisdiction.xxx
 Human rights instruments such as the International Covenant on Civil
and Political Rights, the International Covenant on Economic, Social and
17
Cultural Rights , Genocide Convention, the Convention Against Torture,
the Convention on the Elimination of All Forms of Discrimination Against
Women, and the Convention on the Rights of the Child have not only
proclaimed the rights and obligations of states parties but have also
proclaimed the rights of individuals which are to be protected by both the
State party and the international community. As a result, individuals have
become active subjects of international law;xxxi
 Human rights obligations are owed erga omnes, that is, to the whole
international community, a view that
strengthened
the concept of
universal jurisdiction to deal with gross human rights violations;xxxii
 Exclusive domestic jurisdiction is inadequate in cases of massive
violations
of human rights like genocide, ethnic cleansing , torture,
etc.xxxiii
Despite the fact that courts should take judicial notice of international
instruments, trial courts in the Philippines have a low awareness of the CEDAW and do
not use treaty bodies in their decisions. Our Supreme Court rarely cites the CEDAW; as
a result, the development of jurisprudence and legal theory in the field of women’s rights
has been slow. The first recourse to the protection of human rights rests with local
courts
since they are in a better
conditions.xxxiv
position to
assess
indigenous needs and
All of the human rights treaties require that before complaints are
brought to the level of the CEDAW Committee, individuals must exhaust all domestic
remedies, a requirement that gives the state “an opportunity
to redress, by its means
within the framework of its legal system, the wrongs alleged to have been suffered by the
individual.”
xxxv
However, even if treaties have not been incorporated into domestic law,
18
the judiciary can construe domestic law in conformity with international obligations,
customary or conventional. xxxvi
The courts can use international human rights norms for statutory interpretation,
“where the terms of any legislation are not clear or are reasonably capable of more than
one meaning.”xxxvii In such cases, and in the absence of any domestic law to the contrary,
the meaning which conforms most closely to the provisions of any international
instrument is to be preferred.xxxviii
One area in which the CEDAW can be useful to domestic courts is the definition
of discrimination.
“Finding discrimination requires a court to draw lines between
justified and unjustified distinctions. …the requirements necessary to justify distinctions
based on sex ought to be very stringent; international law indicates that distinctions
based on sex
are deserving of the highest degree of judicial scrutiny.”xxxix Given the
wealth of information and decisions and
generated
so far,
recommendations
that the CEDAW has
international law can be used in this instance not
directly to
determine the outcome of a case but to set the standard for the national court’s
evaluation of whether a given law is discriminatory on the basis of sex. xl
Aside from influencing legislation and litigation, CEDAW is raising international
awareness of women’s human rights issues. General Recommendation 19 on Violence
Against Women has provided other human rights bodies,
nongovernmental
organizations, legal practitioners, as well as domestic courts, with a critical
understanding of violence against women as a human rights violation and as a form of
gender discrimination. Thus, it can be said that the CEDAW provides the framework
and the language of women’s human rights which women and NGOs can utilize to try to
lobby for social, economic, cultural, and political changes that will have a positive
impact on women’s lives.
19
In many countries, including the Philippines, women are underrepresented in
the judiciary, particularly at the level of the Supreme Court, which has begun the gender
sensitivity education of judges. Where there is no adequate gender-sensitivity education
for judges, gender bias in the court system may also pose a hindrance to the application
of the CEDAW in domestic courts. Gender bias and sexism, as reflected in stereotype
beliefs concerning femininity and masculinity and in attitudes to female roles,
are
deeply embedded in judicial culture. Such attitudes and perception will hinder our
judges’ appreciation of the objective of achieving substantive equality of women through
the use of the CEDAW xli and will result in injustice to countless women.
Emerging issues
The gender sensitivity of judges in the Philippines will be further tested with the
application of the Anti-Violence Against Women and their Children Act of 2004 (R.A.
No. 9262), which provides for the remedy of a temporary and permanent protection
order aside from criminal action and an independent civil action. R.A. No. 9262, which
took effect on March 27, 2004, protects women and their children from physical,
psychological, sexual, and economic abuse.
The most urgent issue for abused women who have to flee their homes to avoid
injury or death is support for themselves and their children. What makes R. A. No. 9262
the appropriate remedy, instead of an action for support, is the availability of the
immediate relief of an ex parte temporary protection order which includes a stay-away
order, removal of the respondent from the conjugal home, custody of minor children,
and support.
Notwithstanding the Supreme Court’s issuance of the Rule on Anti-
Violence Against Women and their Children, lawyers for petitioners bewail the lack of
urgency among many judges in resolving these cases and their reluctance to issue
protection orders that include support, a stay-away order, and a Bond to Keep the Peace.
20
(Bing, does Bond to Keep the Peace have to be capitalized?) The reluctance of some
judges to enforce R.A. No. 9262 is compounded by their belief that the new law is too
harsh.
The opportunity to develop legal theory and jurisprudence is great under R.A. No.
9262. Now that economic abuse has been recognized as a form of violence, the courts
may someday appreciate a husband’s failure to provide support as a ground for legal
separation, specifically, as “grossly abusive conduct.” (ENDNOTE: SECTION ___,
FAMILY CODE). This provision would benefit women who have separated from their
husbands because of violence (repeated physical abuse is required under the Family
Code) or marital infidelity but are unable to file for legal separation because the cause of
action has prescribed. (NOTE DAMCELLE, MIA, PRESCRIPTION 5 YRS?_
The other issues are the following : 1) Will our courts finally make a definitive
statement that rape is a form of gender discrimination? 2) Should respondents in cases
under R.A. No. 9262 be allowed visitation rights to their minor children even if such
will give them access to the children’s abused mother? 3) Will the court rule that fathers
of illegitimate minor children who abuse their mothers are by law “strangers” who are
not entitled to visitation rights, especially when the children are infants? While judges
may liberally apply the principle of “best in the interest of the child,” is it in the child’s
best interest, especially if he or she is an infant, to be visited by an abusive father?
Violence changes the paradigm of many provisions in the Family Code, and it
takes gender sensitivity and analyses to apply R.A. No. 9262 to ensure protection of the
woman and her child and give the former the opportunity to regain some control over
her life. The rule on the issuance of temporary protection ex parte must be understood
from the perspective of the disempowered woman, such that there is a need for an urgent
order to level the playing field while the case is being heard.
Ordering the husband to
leave the conjugal dwelling will be one of the heated issues in the application of this new
21
law, one which can be done only by putting aside the husband’s right to the property as
inferior to the woman’s right to protection, at least while the hearings on the merits are
ongoing. Judges also need to understand abuse as other than physical, especially the
psychological effects on the woman who is battered, threatened, or deprived of the
custody of her minor children. This perspective is necessary if judges are to be convinced
that abused women need protection, support, and all other means to enable them to
regain control over their lives. Unfortunately, some judges and lawyers still consider
domestic violence as a private matter that can be settled if the parties talk and reconcile,
forgetting that under R. A. No. 9262, medication or conciliation is prohibited, and totally
missing the point that the reason for this prohibition is that the woman, who is not in a
position of power, will be intimidated or pressured to return to the home or to withdraw
her complaint during mediation.
Another new concept under R.A. No. 9262 that will meet challenges in court is
the provision on the
battered woman syndrome as a justifying circumstance
(ENDNOTE: Section ____ of R.A. No. 9262), notwithstanding the lack of any of the
elements of self-defense. Judges need to understand the situation and the psychological
makeup of battered women and to appreciate evidence of a history of cumulative abuse.
Psychiatrists, psychologists, and counselors can give their expert opinions, but if the
judge’s mind is fixed on the rule of self-defense, this can be an obstacle to his or her
appreciation of the evidence of a history of abuse and expert testimonies as sufficient
cause for the woman to have believed that the threat to her life was imminent.
Another new law that will require gender sensitivity and a human rights
perspective of judges is Republic Act No. 9208, otherwise known as the Anti-Trafficking
in Persons Act of 2003. To date, there has been no conviction under this law.
Among
the provisions that need to be highlighted in R.A. No. 9208 is the irrelevance of the
22
victim’s consent in a case of trafficking. Under R.A. No. 9208, it is irrelevant whether or
not the complainant agreed to take the job or knew that she would be working abroad in
what could be a place of prostitution.
No one can consent to being trafficked, in the
same manner that no one can consent to slavery. This concept needs to be appreciated
by judges in the context of the poverty and powerlessness of victims, who are mostly
women and children.
Perhaps the most controversial issue in the future would be that of sexual rights,
which is described by Coomaraswamy (ENDNOTE) as referring “generally to a woman's
control over her sexuality and her access to primary and secondary health care and
reproductive technologies.”
She notes that the term “sexual rights” concerns the
international recognition of the rights of women over their bodies and their sexuality,
applying the human rights framework to reproductive health as an important
innovation. The Declaration and Programme of Action of the International Conference
on Population and Development states: "Reproductive health ... implies that people are
able to have a satisfying and safe sex life and that they have the capability to reproduce
and freedom to decide, if, when and how often to do so."
Paragraph 96 of the Beijing
Platform for Action also states: "The human rights of women include their right to have
control over and decide freely and responsibly on matters related to their sexuality,
including sexual and reproductive health, free of coercion, discrimination and violence."
(ENDNOTE: United Nations, The Beijing Declaration and
Platform for Action, Fourth World Conference on Women, Beijing
China, 4-15 Sept. 1995, Platform of Action, Para. 211, U.N. Dept.
Of Public Information, United Nations, New York, 1996) .
With a
23
growing demand for reproductive health rights by women’s rights organizations, this
issue may come to the courts sooner than later.
Recommendations
The continuing study of
R.A. No. 9262, R.A. No. 9208, the Anti-Rape Act of
1997, and other laws protecting women’s human rights should be done not only by
judges and lawyers but also in law schools, while ensuring that these are taught with a
gender perspective.
Furthermore, women’s rights lawyers and judges should be
encouraged to contribute to the development of jurisprudence on VAW by putting
forward legal theories and arguments using the CEDAW and other human rights treaties.
Judicial decisions contribute not only to judicial reform but also to legal reform, as we
can see in the decision in People vs. Ritter, (ENDNOTE CITATION) which led to the
enactment of Republic Act No. 7610.
The Supreme Court may also take on a more proactive role in ridding our
jurisprudence of gender bias by reviewing past decisions on VAW and overturning these,
thereby finally eradicating gender stereotyping of the roles of women and men and the
myths about rape in our legal system.
Judges and justices would also benefit from
continuing discussions on gender and the law, including those sponsored by nongovernmental organizations.
The Supreme Court could likewise benefit from the consistent and persistent
watch of women’s rights advocates, and should be more open to critique and reform.
One critical area for reform is the appointment of judges and justices by the President, a
very political process that could result in deterioration in the quality of judges. There is
also a need for more women judges, so that female perspectives and women’s diverse
knowledge and experiences can contribute to the judiciary. The Supreme Court can also
24
add gender sensitivity to the qualifications of all judges, especially those assigned to the
Family Courts, where cases of VAW and those involving children are heard.
To instill adherence to the highest principles of propriety, integrity, and nondiscrimination, the Supreme Court may also take a look at the way disciplinary actions
and penalties against judges have been dispensed in the past and adopt a strict policy
against gender discrimination by judges.
Lawyers’ organizations, for their part, can give more attention to gender in the
legal profession, aside from strengthening their free legal aid programs for women and
children who are victims of abuse. Law schools can also include gender and the law in
their curricula, and ensure that the subject on family law is taught with a gender
perspective.
Not the least of these recommendations is the education of judges on the CEDAW
and its uses in judicial practice in our jurisdiction as well as in other countries.
Conclusion
The human rights of women and of the girl-child are an inalienable, integral and
indivisible part of universal human rights.
We look upon our courts to protect these
rights. Hence, the importance of having judges who are well-versed in human rights
norms and a gender-responsive judiciary cannot be overemphasized.
The judiciary’s
role in guaranteeing full respect for the human rights of women and girl-children is
indispensable, and our trial judges, as well as justices, could further enrich legal theory
and jurisprudence on women’s rights by using the CEDAW, the DEVAW, and General
Recommendations 19 and other international human rights instruments, towards the
goal of eliminating violence against women and girl-children.
It is because of the
strategic position of trial judges in the administration of gender justice that the Gender
Justice Awards focuses on their performance and decisions.
25
It is hoped that the network of human rights organizations and women’s rights
and children’s rights advocates in the Philippines will expand and strengthen their
coalition-building strategies for judicial reform. Forthcoming Gender Justice Awards, it
is hoped, will be joined by more partner organizations, including those engaged in other
human rights advocacies. Gender, after all, is a cross-cutting issue for all. The value of
the Awards lies not only in finding outstanding judges who can enrich the human rights
discourse, but also in the ability of human rights advocates and organizations to
collaborate as well as critique the judiciary, recommend areas for reform, and contribute
to the development of legal theory and jurisprudence on gender and the rights of women
and girl-children.
The Awards benefited from the positive environment made possible by having a
chief justice who appreciates the role of women’s rights and human rights organizations
in judicial reform. The “Davide Watch” has started programs on gender-responsiveness,
but the fruits of Chief Justice Hilario G. Davide’s leadership in the area of gender and law
will be known only in the years to come. The challenge for the next chief justice is to
take a closer look at his or her and the Court’s past decisions on gender and human
rights of women and children, eliminate gender discrimination in their decisions, in the
courts and the legal profession, as well as take bolder steps to implement policies and
programs that will mainstream gender in the judiciary.
i
Convention on the Elimination of All Forms of Discrimination Against Women [herein referred to as
CEDAW], Article 1.
ii CEDAW ,Art. 5.
iii CEDAW and General Recommendation No. 19 0n Violence Against Women, Art. 2.
iv Aurora Javate de Dios, “The Continuing Struggle for Women’s Human Rights and Empowerment,”
Address delivered before the Women’s Studies Association of the Philippines, Philippine Women’s University, May
31, 2005.
v
vi
Jane Connors, Chief, Women’s Rights , UN Division for the Advancement of Women, 2000.
UN Division for the Advancement of Women, 20 December 2000.
26
vii
The Optional Protocol to CEDAW entered into force on December 22, 2000 with 70 states ratifying and
acceding to it as of June 3, 2005
viii For more information on the work of CEDAW, see Progress Achieved in the Implementation of the
Convention on the Elimination of All Forms of Discrimination Against Women: Report by the Committee on the
Elimination of All Forms of Discrimination Against Women 4-15 September 1995.
ix Ibid. This procedure has been strongly supported by women’s groups as a more effective means of
enforcement of the CEDAW as it allows the Committee to directly address and act on specific complaints of women
whose rights have been violated .
x International Law Association, Committee on International Human Rights Law and Practice, “ Interim
Report on the Impact of the Work of Human Rights Treaty Bodies on National Courts and Tribunals,” New Delhi
Conference, 2002, p. 3.
xi Inter-Parliamentary Union, (2003) The Convention on the Elimination of All Forms of Discrimination
Against Women and its Optional Protocol Handbook for Parliamentarians.United Nations: Switzerland, pp. 40-46.
xii Ibid.
xiii International Law Association, op. cit. p.6.
xiv Ibid., p. 14
xv CONSTI., ART. II (1987).
xvi Shanthi Dairiam , “Impact of the Convention at the Domestic Level, “ CEDAW at 25: Are We Moving
Forward?,” 13 October 2004, 3:00-6:00 P.M., United Nations Headquarters, NY, p. 4.
xviiIbid.
xviii R.A. No. 7192, a.k.a Women in Development and Nation Building Act, Republic of the Philippines,
February, 1996.
xix Ibid.
xx Ibid.
xxi Ibid.
xxii A.S. Anand, Chief Justice of India, “The Domestic Application of International Human Rights Norms,”
Inaugural Address during the Seminar on Judicial Colloquium on the Domestic Application of International Human
Rights Norms, June 1, 2005.
xxiii
Ilana Landsberg-Lewis(1998) Bringing Equality Home: Implementing the Convention on the
Elimination of All Forms of Discrimination Against Women, United Nations Development Fund for
Women p. 21.
xxiv
CEDAW at Work, p. 46.
International Law Association, p. 23
xxvi Ibid.
xxvii Ibid.
xxviii See Interim and Final Reports of the Committee on International Human Rights Law and Practice, New
Delhi Conference (2002), Berlin Conference (2004).
xxix Shah Alam , “Enforcement of International Human Rights Law by Domestic Courts,” University of
Chittagong, Bangladesh,n.d.
xxx Ibid.
xxxi Ibid.
xxxii Ibid.
xxxiii Ibid.
xxxiv Anne F. Bayefsky, “General Approaches to the Domestic Application of Women’s International Human
Rights Law,” Human Rights of Women: National and International Perspectives., e.d. Rebecca Cook (1994),
Pennsylvania: University of Pennsylvania Press, (1994), p. 353-354.
xxxv Ibid, p. 354, citing.Ominayak v. Canada.
xxxvi The Canadian Supreme Court ruled that the constitutional Charter of Rights and Freedoms should
generally be presumed to provide protection, at least as great as that afforded by similar provisions in international
human rights documents which Canada has ratified., Ibid., p. 356, citing Davidson v. Slaight Communications, 59
D.L.R. (4th) 416 (1989).
xxxvii Anand, op.cit., p. 6.
xxxviii Ibid.
xxxix Bayefsky, op. cit. pp. 356-357.
xl Ibid.
xlixli
See Womenlead, “Tuning In to Women’s Voices on Justice: An Initial Review of Literature on
Philippine Publications on Women and Justice,” January 15, 2005.
xxv
27