Enforcing Rights and Correcting Wrongs: Overcoming Gender Barriers in Legal Systems

Rajivan, Anuradha, and Hasna Cheema (2010). "Enforcing Rights and Correcting Wrongs: Overcoming Gender Barriers in Legal Systems" Paper presented at the 7th annual conference of the HDCA, 21-23 September 2010, Amman, Jordan.

The aims of this paper are two-fold: to uncover barriers to equality in legal systems that restrict human rights along gender lines–patent and latent; and to propose possible ways to redress legal discrimination for accelerating human development. The focus of evidence is from countries of Asia-Pacific. However, given widespread gender-linked gaps in justice systems, and similarities of legal challenges posed, the paper is expected to be relevant for other similarly placed countries as well. Asia-Pacific has some extreme forms of discrimination and violence, not seen elsewhere, that prosperity has not been able to eliminate. Despite being one of the world’s most economically dynamic regions with broad policy consensus around ‘inclusiveness’, exclusion on the basis of gender has continued to persist not just in fact, but also in law. The motivation of the paper draws from a conviction that all human beings are equally valuable, and that gender by itself is not a legitimate basis for legal discrimination. It is based on the premise that men and women must be able experience substantive equality in justice systems; mechanical equality is not adequate. Women, much more than men, are excluded from the rule of law. Barriers operate, one, in the content of laws and legal practices; and two, in restricted access to justice systems. The substantive content of laws itself can be a source of discrimination. Laws may be discriminatory, have gaps or be contradictory. Women’s access to formal and customary justice systems remains restricted and inadequate enforcement mechanisms continue to be of serious concern. Specific barriers, rooted in gender, prevent women from getting to courts or finding fair judgments once there. The paper explores three strategic avenues for simultaneous action. One, fixing institutions – laws, legal practices and modes of access; two, changing attitudes of those who create, uphold, and use laws; and three establishing ongoing assessments to reveal inequalities and monitor progress.
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