A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

A <strong>Digest</strong>
<strong>of</strong> <strong>Case</strong> <strong>Law</strong>
on the
Human Rights
<strong>of</strong> Women
(Asia Pacific)
Asia Pacific Forum on Women, <strong>Law</strong> and Development

Production <strong>of</strong> this publication for educational or other non-commercial
purposes is authorised and encouraged without prior written permission
from the publisher provided the source is fully acknowledged.
Published by APWLD © 2003
Reprinted 2006
ISBN: 974-85456-8-7
Asia Pacific Forum on Women, <strong>Law</strong> and Development (APWLD)
Girl Guides Association Compound
189/3 Changklan Road, Amphoe Muang
Chiangmai 50100, Thailand
Tel: +66 (0)53 284527 - 284856
Fax: +66 (0)53 280847
Website: www.apwld.org
Email: apwld@apwld.org

A <strong>Digest</strong> <strong>of</strong> <strong>Case</strong> <strong>Law</strong>
on the Human Rights <strong>of</strong> Women
(Asia Pacific)
Editors
Christine Forster
University <strong>of</strong> New South Wales, Australia
Imrana Jalal
Pacific Regional Human Rights Education Resource Team, Fiji
Vedna Jivan
University <strong>of</strong> New South Wales, Australia
Madhu Mehra
Partners for <strong>Law</strong> in Development, India
Asia Pacific Forum on Women, <strong>Law</strong> and Development

A <strong>Digest</strong> <strong>of</strong> <strong>Case</strong> <strong>Law</strong>
on the Human Rights <strong>of</strong> Women
(Asia Pacific)
A collation <strong>of</strong> case summaries
from the Asia Pacific region citing the
Convention on the Elimination <strong>of</strong>
All Forms <strong>of</strong> Discrimination Against Women
and
National Constitutions
and
other Human Rights Instruments
to protect and promote equality <strong>of</strong> rights
between men and women
A Project <strong>of</strong> the Women’s Human Rights Working Group <strong>of</strong> the
Asia Pacific Forum on Women, <strong>Law</strong> and Development

Acknowledgements
APWLD would like to express its sincere appreciation to the following individuals
and organisations that have made this publication possible:
Hameeda Hossain, Imrana Jalal, Hina Jilani, Madhu Mehra and the APWLD Women’s
Human Rights Task Force for initiating this project and constituting the first editorial
team to oversee its implementation;
The editors, Imrana Jalal and Madhu Mehra, for persistently being involved in the
project over the years and undertaking the valuable work <strong>of</strong> sifting through all the
case summaries from the research partners and taking on the difficult challenge <strong>of</strong>
selecting and editing the landmark cases for publication;
The editors, Vedna Jivan and Christine Forster for painstakingly doing the final editing
<strong>of</strong> the publication, particularly to ensure the accuracy <strong>of</strong> the case summaries and
the accessibility <strong>of</strong> this publication as a reader friendly resource book on women’s
human rights legal activism in the Asia Pacific;
Ain o Salish Kendra, Bangladesh; Fiji Women’s Rights Movement, Fiji; Partners for
<strong>Law</strong> in Development, India; Indonesian Women Coalition for Justice and Democracy,
Indonesia; Mizuho Matsuda, Japan; Korean Women’s Association United, Korea;
AGHS Legal Aid Cell, Pakistan; Ateneo Human Rights Centre, Philippines; <strong>Law</strong> and
Society Trust, Sri Lanka; Wanee B. Thitiprasert, Thailand; International Women’s
Action Watch Asia- Pacific, Malaysia; and Interights, United Kingdom for their
painstaking contribution <strong>of</strong> collating the cases and producing the case summaries in
English;
Paul Weston, Vedna Jivan and Francisco Fisher for the design and layout <strong>of</strong> the
publication;
Margot Morris, Rathy Santhiran, Gurpinder Deo, John Sfinas, Rebekah Gay and the
generous support provided by Kingsford Legal Centre <strong>of</strong> the University Of New
South Wales, Australia;
Swedish International Development Cooperation Agency (SIDA), Netherlands
Organisation for International Development Cooperation (Novib), Humanistic
Institute for Cooperation with Developing Countries (HIVOS) for the continued
financial support to complete this project.
i

ACKNOWLEDGEMENTS
INTRODUCTION
PART I
CEDAW CASES
ARTICLE 7: POLITICAL PARTICIPATION AND PUBLIC LIFE
Philippines
Imelda Romualdez-Marcos v Commission on Elections
and Cirilo Roy Montejo
ARTICLE 9: NATIONALITY AND CITIZENSHIP
Bangladesh
Sayeeda Rahman Malkani and others v The Secretary,
Ministry <strong>of</strong> Home Affairs, Government <strong>of</strong> the
People’s Republic <strong>of</strong> Bangladesh and others
Nepal
Mr Benjamin Peter, Mrs Mina Kumari Tilija Peter v
His Majesty’s Government, Ministry <strong>of</strong> Home Affairs,
Department <strong>of</strong> Immigration, Kathmandu
ARTICLE 11: EMPLOYMENT
Indonesia
Nurhatina Hasibuan v Pt. Indonesia Toray Synthetics,
Functionaries <strong>of</strong> Indonesian Labour Union,
Functionaries Board <strong>of</strong> Indonesian Labour Union
Branch, Central Management Board <strong>of</strong> Indonesian
Labour Union
Japan
Teikoku Zouki <strong>Case</strong>
ARTICLE 16(a): MARRIAGE AND FAMILY LIFE- MARRIAGE
Japan
X1 and X2 v Government <strong>of</strong> Japan
ARTICLE 16(b): MARRIAGE & FAMILY LIFE - MARRIAGE & CONSENT
Pakistan
Humaira Mehmood v The State and others
Contents
i
1
4
9
12
14
17
19
22

Contents
ARTICLE 16(f): MARRIAGE AND FAMILY LIFE - CUSTODY AND
GUARDIANSHIP
India
Ms Githa Hariharan and another v Reserve Bank <strong>of</strong>
India and another with Dr. Vandana Shiva v Jayanta
Bandhopadhyaya and another
Pacific Islands: Fiji
Surya Prakash v Shirley Reshmi Narayan
ARTICLE 16(h): MARRIAGE AND FAMILY LIFE - INHERITANCE
AND SUCCESSION
India
Madhu Kishwar and others v State <strong>of</strong> Bihar and others
with Juliana Lakra v State <strong>of</strong> Bihar
C. Masilamani Mudaliar and others v Idol <strong>of</strong> Sri
Swaminathaswami Swaminathaswami Thirukoil and
others
Nepal
Meera Kumari and Mira Khanal v His Majesty’s
Government, Ministry <strong>of</strong> <strong>Law</strong>, Justice and
Parliamentary Affairs, Secretariat <strong>of</strong> the Council <strong>of</strong>
Ministers, House <strong>of</strong> Representatives, National
Assembly
GENERAL RECOMMENDATION 19: VIOLENCE AGAINST
WOMEN - SEXUAL HARRASSMENT
India
Apparel Export Promotion Council v A. K. Chopra
Vishaka v State <strong>of</strong> Rajasthan
GENERAL RECOMMENDATION 19: VIOLENCE AGAINST
WOMEN - SEXUAL VIOLENCE
India
Chairman, Railway Board and others v Mrs.
Chandrima Das and others
Pacific Islands: Fiji
State v Filipe Bechu
Pacific Islands: Kiribati
The Republic <strong>of</strong> Kiribati v Tieta Timiti and Rabaere
Robuti
26
29
32
37
41
44
48
51
54
56

PART II
CONSTITUTIONAL LAW CASES
CUSTOMARY LAW: SEX ROLES AND STEREOTYPES/FREEDOM
OF MOVEMENT
Pacific Islands: Vanuatu
Public Prosecutor v Walter Kota, Chief Jimmy Kawai, Chief
Cyril Wis Menesu, Chief Andrew Koau, Chief Ringimanu,
Joseph Nayo, Charles Narun Kauiata, Thomas Nasup Taura,
Barbara Teku Mathias, Marie Salome Morrison, Mathias
Teku
NATIONALITY AND CITIZENSHIP
Nepal
Meera Gurung v Her Majesty’s Government, Department <strong>of</strong>
Central Immigration, Ministry <strong>of</strong> Home Affairs
EMPLOYMENT
Japan
Houshasen Eikyou Kenkyujo <strong>Case</strong>
Iwate Bank <strong>Case</strong>
Kenwood <strong>Case</strong>
Republic <strong>of</strong> Korea
Korea Electric Power Corporation v Commissioner <strong>of</strong> Central
Labour Commission
DISCRIMINATORY LAWS/EQUALITY
Nepal
Women’s <strong>Law</strong> and Development Fund, Women and
Development Forum v His Majesty’s Government, Ministry
<strong>of</strong> <strong>Law</strong> and Justice, Ministry <strong>of</strong> Parliamentary Affairs, Cabinet
Secretariat, House <strong>of</strong> Representatives, Special Assembly
MARRIAGE AND FAMILY LIFE - MARRIAGE
Pacific Islands: Nauru
Dagabe Jeremiah v Nauru Local Government Council
MARRIAGE AND FAMILY LIFE - DIVORCE
Bangladesh
Jesmin Sultana v Mohammad Elias
Contents
59
62
64
65
67
68
70
72
74

Contents
MARRIAGE AND FAMILY LIFE - CUSTODY AND GUARDIANSHIP
Pacific Islands: Vanuatu
Patricia Molu v Cidie Molu
MARRIAGE AND FAMILY LIFE - INHERITANCE AND SUCCESSION
Nepal
Prakash Mani Sharma v His Majesty’s Government, Ministry <strong>of</strong>
<strong>Law</strong>, Justice & Parliamentary Affairs, Secretariat <strong>of</strong> the Council
<strong>of</strong> Ministers, House <strong>of</strong> Representatives, National Assembly
Pacific Islands: Vanuatu
John Noel (as representative <strong>of</strong> the descendants <strong>of</strong> Crero Toto
deceased) v Obed Toto
VIOLENCE AGAINST WOMEN - SEXUAL HARRASSMENT
Republic <strong>of</strong> Korea
Hee Jung Woo v Jung Hue Shin, Jong Woon Kim (Seoul
National University) and the Republic <strong>of</strong> Korea
Japan
Kanazawa Sexual Harassment <strong>Case</strong>
VIOLENCE AGAINST WOMEN - SEXUAL VIOLENCE
Bangladesh
Al-Amin and 5 others v The State
ABBREVIATIONS
GLOSSARY
PART III
APPENDICES
CEDAW COUNTRY RATIFICATION REPORTS
Bangladesh
India
Korea
Pacific Region
Pakistan
STATUS OF CEDAW AND ITS OPTIONAL PROTOCOL
COLLLATION OF RELEVANT INTERNATIONAL INSTRUMENTS
76
79
81
85
88
89
93
94
101
102
104
108
110
113
116

Introduction
This digest is a collection <strong>of</strong> judicial verdicts on women’s rights claims from the Asia
Pacific. It illustrates the contentious issues, complex barriers, and the commonalities
in women’s rights activism across the diversity <strong>of</strong> the region. In doing so, it reflects
judicial treatment <strong>of</strong> women’s rights claims and the disparate successes with the law,
thereby taking stock <strong>of</strong> the achievements and challenges <strong>of</strong> the region.
<strong>Law</strong> has been a significant site <strong>of</strong> women’s rights struggles. The wide ratification <strong>of</strong>
the Convention on the Elimination <strong>of</strong> All forms <strong>of</strong> Discrimination Against Women
[CEDAW] in the region, particularly after the World Conference on Women in Beijing,
1995, has considerably strengthened the claims for justiciability <strong>of</strong> women’s rights.
The increasing reliance upon CEDAW by women’s rights activists to firstly, challenge
discrimination in law and secondly, to expand narrow judicial interpretation <strong>of</strong> national
laws is evidence <strong>of</strong> the Convention’s growing importance. While it may be too
premature to definitively comment on whether or not this has actually enabled better
results, it is clear that the ratification <strong>of</strong> CEDAW has lent legitimacy and moral force
to feminist engagement with the law in many national contexts. The court room in
the last decade has been an arena where many <strong>of</strong> these struggles, developments and
politics have been played out - it is visible in the increasing reliance on international
law, universal standards, in the terminology used and the formulation <strong>of</strong> the claims. It
is equally evident in the judicial responses to them - regardless <strong>of</strong> the upholding <strong>of</strong> or
rejection <strong>of</strong> the claims.
The litigation being pursued to advance women’s rights from the Asia Pacific are
not adequately documented, reported or available for making linkages in women’s
activism regionally. This vacuum formed the core need for this project. In our work,
particularly the regional trainings <strong>of</strong> APWLD on ‘Feminist Legal Theory and Practice’,
it was a struggle to source information on litigation strategies and case law from the
countries <strong>of</strong> this region. One <strong>of</strong>ten heard from the participants in the trainings and the
national NGOs about examples from their countries, but these remained unverified,
undocumented and therefore difficult to retrieve and share for wider usage. Instead, it
was easier to rely upon ‘international case law’ that is well documented and therefore
well known; inadvertently reinforcing the notion that there were no significant legal
challenges from Asia Pacific. This digest endeavors to fill this gap by consolidating a
decade <strong>of</strong> women’s rights cases from the region, from 1990 to 2000.
Implicit in the regional coverage <strong>of</strong> judgments was the challenge <strong>of</strong> working with
different languages, different legal systems and diverse socio economic, customary/
cultural contexts. How could one cobble together the disparate standards, terminology
and systems, maintain lucidity and coherence <strong>of</strong> legal texts that are inherently
complicated and verbose, for a wider usage? The process <strong>of</strong> preparing this digest was
in a sense built into the type <strong>of</strong> output desired. It required involvement <strong>of</strong> national and
1

Introduction
regional groups - an involvement that was necessarily contingent upon their finding
this exercise and output useful. This digest, therefore, is as much a product <strong>of</strong> each <strong>of</strong>
the contributing partner organisations in this project, as <strong>of</strong> APWLD.
While the digest is a shared output, and APWLD acknowledges the valuable contribution
<strong>of</strong> the partner organisations in this exercise, it must alone bear the responsibility for any
shortcomings in compilation, the lapses if any in the selection process, and in processing
the ‘distilled’ matter received. An exercise <strong>of</strong> this description has a vast terrain to
cover, but equally needs to define what it cannot cover. Our principal interest was in
women’s rights cases that had relied upon CEDAW/ international human rights law or
Constitutional rights, and had been finally adjudicated by superior national courts with
the power <strong>of</strong> judicial review and settling last appeals. The selection <strong>of</strong> cases mounted
solely on Constitutional rights was the most difficult - each national partner had the
discretion <strong>of</strong> selecting the landmark decision in this category for their country, no doubt
from a vast number <strong>of</strong> such cases. The editorial team subsequently sifted through this
category for finally selecting those that could be considered landmark for the region.
It is this level <strong>of</strong> selection that was the most challenging for APWLD’s editorial team,
and a subject <strong>of</strong> much debate amongst us.
How to use this digest
The case summaries have been organised into subject headings that correspond to the
substantive articles <strong>of</strong> CEDAW. Some <strong>of</strong> the subjects covered by CEDAW are very
broad, such as those on violence against women [VAW] under General Recommendation
19 and Equality within the Family under Article 16. These have been divided into subcategories
for coherence and easy reference. For example, VAW is sub divided into
sexual violence, domestic violence and sexual harassment at the workplace. Similarly,
the chapter on Family is sub-divided into marriage, divorce, inheritance and custody/
guardianship. Readers should note that the cases relating to inheritance and succession
which have been categorised under Article 16.1 (h) may also correspond to Article 13
(a) <strong>of</strong> the Convention.
This compilation aims to be a resource for a broad range <strong>of</strong> users - for those working
within the courtroom, such as pr<strong>of</strong>essional legal practitioners and judges, as well as for
those working for women’s rights with different skills and capacities in different arenas.
To enable such a wide usage, the case summaries have been simplified without losing
the legal issues, the defenses and the rationale for the decision. The case references
include the year <strong>of</strong> the judgment and the publication in which it is reported. Most <strong>of</strong>
the cases also have a brief comment drawing attention to feminist legal issues arising
from the case.
2

The appendices provide a range <strong>of</strong> additional information to meet the needs <strong>of</strong> the
user range. It includes glossary <strong>of</strong> terms, a table <strong>of</strong> ratification <strong>of</strong> CEDAW and its
Optional Protocol (Status <strong>of</strong> CEDAW and its Optional Protocol), a note on ratification
and steps taken by governments in countries where such information was available
(Country Ratification Repots). A framework <strong>of</strong> relevant international law on each <strong>of</strong>
the substantive areas covered in this digest has been provided (Collation <strong>of</strong> Relevant
International Instruments). In addition to CEDAW, it lists the corresponding international
law provisions pertaining to each <strong>of</strong> the thematic subjects. These include the provisions
<strong>of</strong> the Universal Declaration <strong>of</strong> Human Rights [UDHR], the International Covenant
on Civil and Political Rights [ICCPR], the International Covenant on Economic,
Social and Cultural Rights [ICESCR], and the Convention on the Rights <strong>of</strong> the Child
[CRC]. The framework on violence against women [VAW] is covered by the General
Recommendation No. 19 <strong>of</strong> CEDAW, and additionally supported by provisions from
the UN General Assembly Declaration on Violence Against Women along with those
<strong>of</strong> the Convention Against Torture [CAT].
Despite our best efforts, this exercise has had its share <strong>of</strong> hurdles and limitations. The
regional coverage <strong>of</strong> the digest is limited to the countries where APWLD was able
to find partners with the capacity to undertake research, prepare case summaries and
undertake translations into English. We worked with partners with varying capacities,
for many <strong>of</strong> whom English was not even a second language, or law/ litigation a primary
area <strong>of</strong> work. Some <strong>of</strong> the contributions received remain un-reflected in this work, such
as the case summaries received from Thailand and Malaysia. Although descriptive
<strong>of</strong> legal strategies nationally, these could not be included because they fell outside
the criteria <strong>of</strong> inclusion for this digest. Given these circumstances and the grinding
schedules <strong>of</strong> each <strong>of</strong> the national partners, the digest with all its limitations is still
an achievement for all <strong>of</strong> us who joined hands - whether visibly or invisibly in this
exercise.
This work is a contribution to and resource towards the ongoing efforts to contest,
negotiate and fight the complex web <strong>of</strong> barriers to equal status, opportunities and
dignity <strong>of</strong> women. This, for many <strong>of</strong> us in the region, is a new endeavor. It is hoped that
this initiative will be refined and updated with use over time - to overcome its present
limitations and to better respond to the regional needs it seeks to fulfill.
Madhu Mehra
Editorial team
30 June 2003
3
Introduction

Part I
CEDAW <strong>Case</strong>s

CEDAW
Philippines
Article 7
Political Participation and Public Life
Imelda Romualdez-Marcos (Petitioner) v Commission on Elections
and Cirilo Roy Montejo (Respondents)
G. R. No. 119976
Supreme Court, Manila
18 September 1995
Davide, Francisco, Kapunan, Mendoza, Padilla, Puno,
Regaldo, Romero, Vitug JJ
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979, Article 15;
Civil Code 1950, Articles 50, 110, 114, 117;
Constitution <strong>of</strong> the Philippines 1987, Article 2;
Family Code 1988, Section 69;
Women in Development and Nation Building Act 1992.
This case examines the meaning <strong>of</strong> “residency” in election law in the Philippines.
It considers whether a woman who changes her place <strong>of</strong> residence after marriage
continues to retain domicile in her residence <strong>of</strong> origin. The case also considers
whether it constitutes sex discrimination to define “residency” for election purposes
on the basis <strong>of</strong> where the family home is situated, since women <strong>of</strong>ten adopt the
residency <strong>of</strong> their husbands.
The petitioner, Imelda Romualdez-Marcos, applied as a candidate to contest elections
to the House <strong>of</strong> Representatives in the district <strong>of</strong> Leyte. The incumbent representative
<strong>of</strong> the constituency <strong>of</strong> Leyte, Cirilo Roy Montejo (a candidate for the same position)
applied to Commission on Elections [“COMELEC”] to have Imelda Romualdez-
Marcos’s application rejected on the grounds that it did not meet the constitutional
requirement for residency. The constitutional requirement for residency for election
purposes stated that in order to contest a position, the candidate must have resided in
the location for which they are standing for a period <strong>of</strong> one year or more. The purpose
<strong>of</strong> the provision was to prevent the possibility <strong>of</strong> strangers or newcomers who were
unacquainted with the needs <strong>of</strong> a community standing for <strong>of</strong>fice. In her original
application form, Imelda Romualdez-Marcos had stated that she had resided in Leyte
for seven months. In response to the complaint filed by Cirilo Roy Montejo
4

Imelda Romualdez-Marcos v Commission on Elections and Cirilo Roy Montejo (Philippines)
she amended the time <strong>of</strong> residency in her application from seven months to “since
childhood”. She claimed that the entry <strong>of</strong> the word “seven” in her original Certificate
<strong>of</strong> Candidacy was the result <strong>of</strong> an “honest misinterpretation”, which she now sought
to rectify. She further stated that she had always maintained Tacloban (in the district
<strong>of</strong> Leyte) as her domicile or residence.
COMELEC, after considering the petition <strong>of</strong> Cirilo Roy Montejo to have the
candidacy <strong>of</strong> Imelda Romualdez-Marcos rejected, found the claim meritorious and
refused the petitioner’s original application for candidacy and her amended version.
COMELEC rejected the petitioner’s application for candidacy on the basis that her
conduct revealed that she did not intend to make Tacloban her domicile, that she had
registered as a voter in different places, and on several occasions had declared that
she was a resident <strong>of</strong> Manila. COMELEC stated that although she spent her school
days in Tacloban she had abandoned residency when she chose to stay and reside in
other places.
Imelda Romualdez-Marcos subsequently appealed to the Supreme Court requesting
a declaration that she had been a resident, for election purposes, <strong>of</strong> the First District
<strong>of</strong> Leyte for a period <strong>of</strong> one year at the time she applied to contest the 1995 elections.
She argued that the meaning <strong>of</strong> residency in the Constitution, which designated the
requirements for candidacy for election purposes, was that <strong>of</strong> domicile. She argued
that she had domicile in Leyte because that was her place <strong>of</strong> original domicile and she
had not acted to replace that domicile with another. She also argued that her marriage
and changes <strong>of</strong> residency alongside her husband when he changed residency did not
result in a change in her place <strong>of</strong> domicile. In support <strong>of</strong> that argument she claimed
that section 69 <strong>of</strong> the Family Code 1988, which gives a husband and wife the right
to jointly fix the family domicile, illustrates the intent <strong>of</strong> the Philippines Parliament
to recognise the rights <strong>of</strong> women. She claimed therefore that since she had domicile
in Leyte she automatically fulfilled the requirements for a one-year residency for
election purposes.
The respondents argued the meaning <strong>of</strong> residency in Article 110 <strong>of</strong> the Civil Code
1950 was the meaning that should be applied to the constitutional requirement for
a one-year residency prior to qualifying for candidacy for the elections. Imelda
Romualdez-Marcos, they argued, had changed her residency to that <strong>of</strong> herhusband
upon her marriage and at the same time automatically gained her husband’s
domicile. After returning to Leyte she had resided there for only seven months and
she therefore did not satisfy the one year requirement for candidacy.
Decision
The majority <strong>of</strong> the Supreme Court (eight judges in favour, four against) held that
Imelda Romualdez-Marcos was a resident <strong>of</strong> the First District <strong>of</strong> Leyte for election
5

Imelda Romualdez-Marcos v Commission on Elections and Cirilo Roy Montejo (Philippines)
purposes, and therefore possessed the necessary residence qualifications to run in
Leyte as a candidate for a seat in the House <strong>of</strong> Representatives. The Court held
that the term “residence” in the context <strong>of</strong> qualifying for certain elected positions
is synonymous with the term domicile. Domicile denotes a fixed permanent
residence to which one intends to return after an absence. A person can only have
a single domicile, although they can abandon one domicile in favour <strong>of</strong> another. To
successfully change domicile, one must demonstrate three requirements: an actual
removal or an actual change <strong>of</strong> domicile; a bona fide intention <strong>of</strong> abandoning the
former place <strong>of</strong> residence and establishing a new one; and one must act in accordance
with that intent. Only with clear and positive evidence that all three requirements
have been met will the residence <strong>of</strong> origin be lost, otherwise residency will be deemed to
continue.
The Court held that the meaning <strong>of</strong> “residence” in Article 110 <strong>of</strong> the Civil Code,
which states that “the husband shall fix the residence <strong>of</strong> the family”, is different
therefore to the meaning <strong>of</strong> residence in the Constitution. The term residence may
have one meaning in civil law (as under the Civil Code) and another different
meaning in political law as represented in the election requirements identified in the
Constitution. Residency is satisfied under the Civil Code if a person establishes that
they intend to leave a place when the purpose for which they have taken up their
abode ends. The purpose <strong>of</strong> residency might be for pleasure, business, or health and
a person may have different residences in various places. However, residency in the
Constitution as opposed to the Civil Code means domicile and therefore the key issue
is to determine the domicile <strong>of</strong> the petitioner, Imelda Romualdez-Marcos.
The Court held that Article 110 does not create a presumption that a wife automatically
gains a husband’s domicile upon marriage. When the petitioner was married to then
Congressman Marcos in 1954, she was obliged by virtue <strong>of</strong> Article 110 <strong>of</strong> the Civil
Code to follow her husband’s actual place <strong>of</strong> residence as fixed by him. The right
<strong>of</strong> the husband to fix the residence was in harmony with the intention <strong>of</strong> the law to
strengthen and unify the family. It recognised the fact that the husband and wife bring
into the marriage different domiciles and if the husband has to stay in or transfer to
any one <strong>of</strong> their residences, the wife should necessarily be with him in order that they
may “live together.” However, the term “residence” in Article 110 <strong>of</strong> the Civil Code
does not mean domicile and therefore it cannot be correctly argued that petitioner
lost her domicile as a result <strong>of</strong> her marriage to the late President Ferdinand E. Marcos
in 1952. The Court also held that it would be illogical for the Court to assume that a
wife cannot regain her original domicile upon the death <strong>of</strong> her husband, if she has not
positively selected a new one during the subsistence <strong>of</strong> the marriage itself.
The Court held that the new Family Code, which was introduced to replace the Civil
Code, confirmed the petitioner’s argument that marriage does not automatically
6

Imelda Romualdez-Marcos v Commission on Elections and Cirilo Roy Montejo (Philippines)
change a wife’s domicile to that <strong>of</strong> her husband. The Family Code replaced the term
“residence” (used in the Civil Code) with the term “domicile”. Article 69 <strong>of</strong> the
Family Code gives a husband and wife the right to jointly fix the family domicile.
The provision recognised revolutionary changes in the concept <strong>of</strong> women’s rights
in the intervening years by making the choice <strong>of</strong> domicile a product <strong>of</strong> mutual
agreement between the spouses. The provision recognised the right <strong>of</strong> women
to choose their own domicile and removed the automatic transfer <strong>of</strong> a husband’s
domicile to his wife.
Justice Flerida Ruth Romero
Justice Romero agreed with the findings <strong>of</strong> the majority <strong>of</strong> judges that the term
“residence” in electoral law is synonymous with domicile. She also agreed with the
finding <strong>of</strong> the majority that a woman did not lose her domicile when she changed her
residence to comply with the Civil Code, which gives a husband the right to choose
their place <strong>of</strong> residence. In coming to her decision the judge relied upon a number
<strong>of</strong> international instruments that protect the rights <strong>of</strong> women and made a number <strong>of</strong>
positive statements about the role <strong>of</strong> women in contemporary Philippines society.
Justice Romero in her judgment made specific reference to CEDAW and noted that
Article 15(4) grants to men and women “the same rights with regard to the law
relating to the movement <strong>of</strong> persons and the freedom to choose their residence
and domicile”. Justice Romero noted that the impact <strong>of</strong> CEDAW on other laws in
the Philippines was significant. She referred to the Constitution <strong>of</strong> the Philippines
1987 into which the values <strong>of</strong> CEDAW had been incorporated. For example, Article
2, section 11 states that, “the State values the dignity <strong>of</strong> every human person and
guarantees full respect for human rights” and Article 2, section 14 states that
“the State recognises the role <strong>of</strong> women in nation-building, and shall ensure the
fundamental equality before the law <strong>of</strong> women and men”. She also referred to
the Family Code, by which many <strong>of</strong> the unreasonable strictures on Filipino wives
enshrined in the Civil Code, were removed. For example, Article 114 <strong>of</strong> the Civil
Code had previously stated that a wife could not, without a husband’s consent,
acquire any property by gratuitous title, except from her ascendants, descendants,
parents-in-law, and collateral relatives within the fourth degree. Article 117 similarly
had stated that a husband wields a veto power if a wife exercises her pr<strong>of</strong>ession or
occupation or engages in business, provided his income is sufficient for the family,
according to its social standing, and if his opposition is founded on serious and valid
grounds. Article 84 had prohibited a widow from marriage until three hundred days
following the death <strong>of</strong> her husband, unless in the meantime she had given birth to a
child. The removal <strong>of</strong> these provisions indicated the powerful impact <strong>of</strong> CEDAW on
Philippines law.
7

Imelda Romualdez-Marcos v Commission on Elections and Cirilo Roy Montejo (Philippines)
Justice Romero also referred to the Women in Development and Nation Building Act
1992, which gives married women rights to act in contracts on an equal basis to that
<strong>of</strong> men. She referred to the Fourth World Conference <strong>of</strong> Women in Beijing and its
objectives, which included the removal <strong>of</strong> “all obstacles to women’s full participation
in decision making at all levels, including the family”. Justice Romero beseeched the
Supreme Court to be the first to respond to the Fourth World Conference on Women
and its clarion call “Women’s Rights are Human Rights”.
Commentary
This case is positive for women. The rights <strong>of</strong> women are categorically mentioned
and explicitly recognised. The decision recognises the rights <strong>of</strong> women to choose
their own place <strong>of</strong> domicile and not to be given the domicile <strong>of</strong> their husband upon
marriage. The judgment <strong>of</strong> Justice Romero is particularly positive as it discusses at
length the many restrictions on the personal freedoms <strong>of</strong> Philippines women, which
have since been removed in response to international norms and conventions.
More significantly, Justice Romero focuses on CEDAW as a framework for the
articulation <strong>of</strong> women’s rights. The recognition <strong>of</strong> CEDAW as a binding treaty and a
source <strong>of</strong> State obligation gives emphasis to the fact that it is not only “part <strong>of</strong> the law
<strong>of</strong> the land” (section 2, Article II <strong>of</strong> the Philippines Constitution), but part <strong>of</strong> Philippine
case law. This gives CEDAW the potential to be used as a legal basis in future cases
that involve discrimination against women, without an additional requirement to cite
a specific national law that further articulates a provision in CEDAW. The Philippines
Supreme Court does not always cite international treaties or conventions in support
<strong>of</strong> its decisions so this case signifies a positive development.
8

Article 9
Nationality and Citizenship
Sayeeda Rahman Malkani and others (Petitioners) v The Secretary,
Ministry <strong>of</strong> Home Affairs, Government <strong>of</strong> the People's Republic <strong>of</strong>
Bangladesh and others (Respondents)
Supreme Court, High Court Division, Dhaka
1 September 1997
Md. Mozammel Hoque and Md. Hassan Ameen JJ
<strong>Law</strong>s and International Instruments Considered
Bangladesh Citizenship (Temporary Provisions) Order <strong>of</strong> 1972, Article 2;
CEDAW 1979;
Citizenship zenship Act 1951, Sections 3, 5,11;
Constitution <strong>of</strong> the People’s Republic <strong>of</strong> Bangladesh 1972, Articles 1, 27, 28, 29;
General Clauses Act 1897, Section 13, 15;
P.O. 149 <strong>of</strong> 1972, Article 2.
This case considers whether Bangladesh law, which limits the rights <strong>of</strong> its female
citizens married to foreign nationals who wish to raise their children as Bangladesh
citizens, constitutes sex discrimination. The Court considered whether the law
breached the Constitution <strong>of</strong> the People’s Republic <strong>of</strong> Bangladesh 1972 [“the
Constitution”] and international conventions that protect the rights <strong>of</strong> women such
as CEDAW.
The first petitioner, Sayeeda Rahman Malkani, a citizen <strong>of</strong> Bangladesh married
Rabinder Malkani, an Indian national, in 1984, while pursuing her postgraduate
studies in Paris. The couple had two sons, Sanjay Rahman Malkani and Ihsan Rahman
Malkani (the second and third petitioners), who were registered in the Bangladesh
Embassy in Paris as Bangladeshi citizens. The minors’ names were endorsed in their
mother’s passport mother and they both visited Bangladesh regularly with her.
On 11 August 1992, an <strong>of</strong>ficial at the Bangladesh Embassy in Paris cancelled the
endorsement <strong>of</strong> the names <strong>of</strong> Sayeeda Malkani’s two sons from her passport, alleging
that the earlier endorsements had been mistakenly entered. She was informed that
as she had married an Indian national, her sons could not be considered Bangladeshi
citizens. Sayeeda Rahman Malkani applied to the Court seeking a declaration that
9
CEDAW
Bangladesh

Sayeeda Rahman Malkani and others v Government <strong>of</strong> Bangladesh and others (Bangladesh)
the cancellation <strong>of</strong> the endorsement <strong>of</strong> the names <strong>of</strong> her two sons in her passport was
unlawful. She also sought a declaration that her sons were entitled to Bangladeshi
citizenship on the basis <strong>of</strong> her own citizenship.
The petitioners argued that the statutory provisions <strong>of</strong> the Citizenship Act 1951, which
state that a female who marries a foreigner cannot raise her children as Bangladeshi
citizens, are contrary to Articles 27 and 28 <strong>of</strong> the Constitution. The Articles state
that “all citizens are equal before the law”, that “the State shall not discriminate
against any citizen on grounds only <strong>of</strong> religion, race, sex or place <strong>of</strong> birth” and that
“women shall have equal rights with men in all spheres <strong>of</strong> the State and Public life”.
They argued therefore that the cancellation <strong>of</strong> the endorsement <strong>of</strong> Sayeeda Rahman
Malkani’s sons from her passport was unlawful.
The petitioners also argued that section 13(1) <strong>of</strong> the General Clauses Act 1897,
which states that, “in all Acts <strong>of</strong> Parliament and regulations unless there is anything
repugnant in the subject or context words importing the masculine gender shall be
taken to include females,” should be applied. On the basis <strong>of</strong> this section, she argued,
the word "father" in the Citizenship Act 1951 should be taken to include mother. They
further argued that if the term "father" does not include mother then the laws on
citizenship violate CEDAW, which obliges State parties to eliminate discrimination
against women in relation to acquiring, changing or transmitting nationality.
The respondents argued that Article 6(1) <strong>of</strong> the Constitution provides that the
citizenship <strong>of</strong> Bangladesh shall be determined and regulated by law. Therefore
the citizenship <strong>of</strong> her two sons must be determined by the Bangladesh Citizenship
(Temporary Provisions) Order 1972 and the Citizenship Act 1951. The provisions
in both Acts state that a Bangladeshi citizen is one who himself, or his father or
grandfather, was a permanent resident <strong>of</strong> the territories as comprised in Bangladesh
on 25 March 1971. The respondents argued that the husband <strong>of</strong> Sayeeda Rahman
Malkani was not a citizen, nor a permanent resident <strong>of</strong> Bangladesh on 25 March 1971
and consequently her two sons could not claim citizenship.
Finally, two <strong>of</strong> the three amicus-curiae (“friends <strong>of</strong> the court”) appointed by the
Court to give their opinions on the relevant issues, argued that the General Clauses
Act 1897 only applied to situations <strong>of</strong> ambiguity and that there was no ambiguity in
the use <strong>of</strong> “father” in the Citizenship Act 1951.
Decision
The Court found in favour <strong>of</strong> the petitioners regarding the cancellation <strong>of</strong> the
endorsement. The Court held that Sayeeda Rahman Malkani was the natural guardian
<strong>of</strong> her minor sons, and their names had been legally endorsed in her passport. The
cancellation <strong>of</strong> the endorsement by the Bangladesh Embassy in Paris was therefore
10

Sayeeda Rahman Malkani and others v Government <strong>of</strong> Bangladesh and others (Bangladesh)
illegal. They were unsuccessful, however, in establishing that the sons had a right to
citizenship through their mother's citizenship. The Court agreed with the respondents
that there was no ambiguity in the use <strong>of</strong> the words “father” and “grandfather” in the
Citizenship Act 1951. The equality provision relied upon by the petitioners merely
states that all citizens are equal in the eyes <strong>of</strong> the law. The Constitution defines
a citizen as “a Bangladesh person who is a citizen according to the law” and the
Citizenship Act 1951 provides the authority on who can be a citizen. The petitioners'
argument, according to the Court therefore had no substance.
Commentary
The judgment denies female citizens <strong>of</strong> Bangladesh the right to transfer citizenship
to their children. The Court refused to accept the argument that the Citizenship Act
1951, by recognising only male lineage, violates a fundamental right to equality. The
Court interpreted the Constitution narrowly, finding that the meaning <strong>of</strong> citizenship
should be guided by the relevant laws on citizenship rather than in light <strong>of</strong> the
equality provisions <strong>of</strong> the Constitution. The Court also accepted as relevant, a ruling
which preceded the Constitution and the ratification <strong>of</strong> CEDAW, that minors cannot
acquire domicile different to that <strong>of</strong> their father.
The Court appointed three senior lawyers as amicus curiae to provide their opinions
on the relevant issues. Two <strong>of</strong> the three lawyers provided conservative opinions
that did not promote the interests <strong>of</strong> women in Bangladesh. They submitted that
the children could not claim citizenship under the Citizenship Act 1951. Further,
although the petitioners’ lawyers referred to CEDAW in their argument, the Court
evaded the issue <strong>of</strong> the obligation <strong>of</strong> the State as a party to the Convention to observe
its provisions. The Court also overlooked the submission <strong>of</strong> the third amicus curiae
who challenged the constitutionality <strong>of</strong> the Citizenship Act 1951 and other laws in
question and also raised the issue <strong>of</strong> a woman’s right to transmit nationality.
11

CEDAW
Nepal
Article 9
Nationality and Citizenship
Mr Benjamin Peter, Mrs Mina Kumari Tilija Peter (Petitioners) v
His Majesty’s Government, Ministry <strong>of</strong> Home Affairs, Department <strong>of</strong>
Immigration, Kathmandu (Defendants)
Decision No. 4413, Nepal <strong>Law</strong> Magazine 2049 (1992)
Supreme Court, Division Bench
16 February 1992
Gajendra Keshari Banstola, Keshav Prasad Upadhyaya JJ
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Constitution <strong>of</strong> the Kingdom <strong>of</strong> Nepal 1990, Articles 11, 88(1);
International Covenant <strong>of</strong> Civil and Political Rights 1966;
Nepal Treaties Act 1990, Section 9(1);
Regulations Relating to Foreigners 2032, Regulation 14(3), (4), (5).
The Court in this case was asked to consider whether regulations which treat Nepalese
men marrying non-nationals differently, to Nepalese women marrying non-nationals,
were in breach <strong>of</strong> the Constitution <strong>of</strong> the Kingdom <strong>of</strong> Nepal 1990 [“the Constitution”]
and international conventions such as CEDAW.
The petitioners, Mina Kumari Tilija, a permanent resident <strong>of</strong> Nepal, and Benjamin
Peter, a citizen <strong>of</strong> Switzerland, married and sought natural settlement status in Nepal.
They were denied that right on the basis <strong>of</strong> Rule 14(3) <strong>of</strong> the Regulations Relating to
Foreigners 2032 [“the Regulations”], which provided that a foreign citizen married
to a Nepalese woman was only entitled to obtain a non-tourist visa for a maximum
period <strong>of</strong> 4 months. By contrast, Rule 14(3) <strong>of</strong> the Regulations provided that a
foreign woman married to a Nepalese citizen would have her visa automatically
extended during the period <strong>of</strong> the marriage and if the marriage ended, for a further
three months. The petitioners filed a writ petition seeking a declaration that Rule
14(3) <strong>of</strong> the Regulations was unlawful. They also sought a non-tourist visa for
Benjamin Peter issued on the same terms as those issued for non-Nepalese women
married to Nepalese men.
12

Mr Benjamin Peter, Mrs Mina Kumari Tilija Peter v His Majesty’s Government, etc (Nepal)
The petitioners argued that Rule 14(3) was discriminatory on the basis <strong>of</strong> sex
and was inconsistent with the equality provision conferred in Article 11 <strong>of</strong> the
Constitution. Rule 14(3), according to the petitioners, was also contrary to CEDAW
and the International Covenant <strong>of</strong> Civil and Political Rights 1966. The petitioners
argued that the Regulation should be declared unlawful as the Nepal Treaties Act
1990 provided that international law prevailed over national laws, which were
inconsistent with the relevant treaty.
The defendants argued that the petitioner had not filled out the form required for
foreigners wanting to enter Nepal. Without completion <strong>of</strong> the relevant form, the
Department could not decide whether the visa should be issued. Since the procedure
had not been adhered to it could not be argued that its action was discriminatory. The
defendants also argued that the equality provision in Article 11 <strong>of</strong> the Constitution
is a general provision and could not be used to interpret the special provisions <strong>of</strong> the
Constitution such as Part 2, which relates to citizenship.
Decision
The Court rejected the petition. It held that the petitioners had not filed the proper
application form for a visa duration extension and their petition was therefore
premature. The Court did not address any <strong>of</strong> the substantive issues raised in this
case except to comment that it did agree with the defendants in their assertion that
a general provision <strong>of</strong> the Constitution could not be used to interpret a special
provision.
Commentary
This case is a setback for Nepalese women’s rights. The Regulation clearly
discriminates against Nepalese women who choose to marry foreigners and the
Court’s decision to reject the petition reinforces this discrimination. No substantive
reasons were given by the Court to justify the presence <strong>of</strong> additional regulations
placed on Nepalese women who marry foreigners.
Nepal has a progressive Constitution and since the Nepal Treaties Act 1990 expressly
provides for international standards to be incorporated into domestic law, the case
reflects a disregard for women’s rights in Nepal. The Court opted for a conservative
and easier path by not addressing the constitutional issues raised by the petitioners.
However, this case does not represent a negative precedent because the Court
avoided the substantive issues and made its finding against the petitioners on the
basis <strong>of</strong> their failure to correctly follow the visa application procedures. It can
therefore be distinguished by advocates in future cases (see also: Meera Gurung v
Her Majesty’s Government, Supreme Court, Decision No. 4858 <strong>of</strong> 1994 included
under constitutional law cases).
13

CEDAW
Indonesia
Article 11
Employment
Nurhatina Hasibuan (Petitioner) v Pt. Indonesia Toray Synthetics,
Functionaries <strong>of</strong> Indonesian Labour Union, Functionaries Board <strong>of</strong>
Indonesian Labour Union Branch, Central Management Board <strong>of</strong>
Indonesian Labour Union (Respondents)
No. 651/PDT/1988/PT.DKI
Jakarta High Court
2 July 1988
Hasan Basri Pase CJ, Moeridjatun, Soengkono JJ
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979, Articles 1, 4, 11;
Kesepakatan Kerja Bersama 1954, Articles 12, Figure 2 (Mutual Working
Agreement) 16, 68;
Labour Act 1969, Article 2;
Occupational Act 1948, Articles 7, 8, 9, 13.
This case examines whether a lower mandatory retirement age for women constitutes
sex discrimination. The Court considered whether the lower retirement age was in
breach <strong>of</strong> the Labour Act 1969, which prohibits discrimination on the ground <strong>of</strong> sex, and
international instruments such as CEDAW. The Court also considered whether it had the
jurisdiction to hear this case.
On 27 April 1987, the petitioner, Ms Hasibuan, received a notice from her employer
Toray Synthetics stating that as she would be turning 40 the following month, she would
be required to resign from her job. The work agreement under which Ms Hasibuan was
employed included a mandatory age for retirement <strong>of</strong> 55 years for men and 40 years for
women. For Ms Hasibuan, this meant that she would not be eligible for the same benefits
as a man, because her age would prevent her from qualifying for the pension. Ms Hasibuan
applied to the Court for an order requiring her employer to change the mandatory
retirement age so that it would be the same for men and women. She also asked the Court
to issue an order requiring her employer to employ her until she reached the age <strong>of</strong> 55. The
lower court decided in favour <strong>of</strong> Ms Hasibuan and the respondents appealed to the Jakarta
High Court.
14

Nurhatina Hasibuan v Pt. Indonesia Toray Synthetics, etc. (Indonesia)
Ms Hasibuan argued that Article 12, Figure 2 <strong>of</strong> the Mutual Working Agreement
1954 [“the Working Agreement”] was discriminatory as it set a lower retirement age
for women than for men. She argued it breached Article 2 <strong>of</strong> the Labour Act 1969,
which states that employers should not discriminate on the basis <strong>of</strong> sex. Further, she
argued that the Labour Union, by knowingly agreeing to the Working Agreement,
had also breached the Labour Act 1969. Finally, Ms Hasibuan argued that Indonesia
had international obligations to promote the equality <strong>of</strong> women under CEDAW, and
should therefore amend the Working Agreement to make equal provision for men
and women.
The respondents argued that the Court did not have jurisdiction to decide this matter
and that it should be handled by the administrative bodies responsible for solving
labour disputes. These administrative bodies, the respondents argued, included the
Head Office <strong>of</strong> the Labour Ministry, as well as the Director General <strong>of</strong> Developing
Labour Relationships and Job Norm Supervision. As these were the bodies
responsible for the Working Agreement any action should be directed at them.
The respondents also argued that even if the Court was found to have jurisdiction,
the different mandatory retirement age for men and women was part <strong>of</strong> a labour
agreement that was only temporary (for two years) and on this basis should not be
subjected to challenge for discrimination.
The respondents also argued that even if the Working Agreement was discriminatory,
it was acceptable discrimination. They argued that the biological difference between
men and women justified a lower age <strong>of</strong> retirement for women. Women, for example,
were more likely to experience work related stress and illness. The respondents
argued that the purpose <strong>of</strong> the provision was protective, similar to legislation
that prohibits women from working in mines, or at night. Further, differences in
retirement ages could also be found in other groups <strong>of</strong> employees in the workforce
such as government positions where workers had a lower retirement age. This, the
respondents argued, was allowed as acceptable discrimination.
Finally, the respondents argued that Ms Hasibuan had not specified which article <strong>of</strong>
CEDAW she wished to rely upon. They also argued that CEDAW must not be applied
rigidly but instead interpreted flexibly in light <strong>of</strong> the local social norms <strong>of</strong> a given
society.
Decision
The Court decided in favour <strong>of</strong> Ms Hasibuan, confirming the decision <strong>of</strong> the lower
court. The Court rejected the argument that it did not have jurisdiction on the basis
that if a law is broken, the Court will have the jurisdiction to rule upon it. The Court
ordered that the company, Indonesia Toray Synthetics, immediately amend the
15

Nurhatina Hasibuan v Pt. Indonesia Toray Synthetics, etc. (Indonesia)
Working Agreement to make the mandatory retirement age the same for men and
women and imposed a daily fine for any delay in making the requisite changes. The
Court also ordered that the company maintain Ms Hasibuan as an employee until she
reached the new retirement age <strong>of</strong> 55 years.
In its decision, the Court expressly adopted the definition <strong>of</strong> discrimination used
in CEDAW. Further, it noted that in the Indonesian community “women are the
backbone to support the family economy” and for this reason, an identical retirement
age for men and women was essential.
Commentary
This decision is very progressive for women’s rights. The Court applied CEDAW
directly and did not accept the argument that CEDAW must adapt to local social
norms. Further, the Court recognised the importance <strong>of</strong> women’s labour not only
to themselves, but also to the family and society. This reasoning could be used by
advocates to argue for women’s equality, particularly in employment discrimination
cases.
In this case, the Court heard expert evidence with regard to biological and
psychological differences between men and women that sought to establish that
women were more likely than men to suffer mental and physical illness in the context
<strong>of</strong> work. The Court did not find this argument persuasive. The case is an excellent
precedent for advocates in any situation where a “mental/physical difference”
argument is being used to support discrimination against women.
Finally, this case is significant because it recognised that labour unions and boards
are also responsible for discrimination practices, in addition to employer companies.
This is useful because it defines the responsibilities <strong>of</strong> labour representatives to
actively protect all <strong>of</strong> their workers, including women.
16

Article 11
Employment
Teikoku Zouki <strong>Case</strong>
Roudouhanrei No. 694, p. 29
Tokyo High Court
29 May 1996
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Civil Code, Articles 90 and 709;
Constitution <strong>of</strong> Japan 1949, Articles 13, 24;
International Covenant on Civil and Political Rights 1966;
International Labour Organisation Treaty No. 156,
and Attached Recommendation No. 165;
Labour Standards <strong>Law</strong>, Chapter 2;
Universal Declaration <strong>of</strong> Human Rights 1948, Article 16.3.
This case considered whether transferring a worker away from his family breached
a fundamental right to family life enshrined in international conventions and the
Constitution <strong>of</strong> Japan 1949 [“the Constitution”].
The company for which the petitioner worked ordered him to transfer locations from
Tokyo to Nagoya, which resulted in him living apart from his family. The petitioner
claimed that this order to transfer violated his fundamental right to family life, which
was protected under CEDAW, Articles 13 and 24 <strong>of</strong> the Constitution, Articles 16.3
<strong>of</strong> the Universal Declaration <strong>of</strong> Human Rights 1948, the International Covenant on
Civil and Political Rights 1966; and the International Labour Organisation [“ILO”]
Treaty No. 156, and Attached Recommendation No. 165.
Decision
The Court dismissed the petitioner’s claim. It held that living apart from one’s
family for work purposes is a socially acceptable part <strong>of</strong> the burden <strong>of</strong> a family.
The Court also noted that current social norms did not place family life above work
commitments and company interests.
17
CEDAW
Japan

Teikoku Zouki <strong>Case</strong> (Japan)
Commentary
Although the petitioner in this case was a man, the decision is relevant to women’s
rights because family life and obligations continue to play an important role in the
lives <strong>of</strong> many women. The Court did not appear to consider the international trend
towards humanising working conditions, including a consideration <strong>of</strong> the need for
families to be together; in particular with regard to ILO Treaty No. 156. This treaty
recognises the family as fundamental to society, and emphasises the need for workers
to maintain family obligations.
18

Article 16.1(a)
Marriage and Family Life
Marriage
X1 and X2 (Appellants) v Government <strong>of</strong> Japan (Respondent)
The Hanreijihou, No. 1406 pp. 3-8
Hiroshima High Court
28 November 1991
International <strong>Law</strong>s and Instruments Considered
CEDAW 1979, Preamble, Articles 2, 15, 16;
Civil Code, Articles 733, 772;
Constitution <strong>of</strong> Japan 1949, Articles 13, 14, 15, 16, 24;
International Covenant on Civil and Political Rights 1966, Article 23;
State Redress <strong>Law</strong>, Article 1.
This case considered whether Section 733 <strong>of</strong> the Civil Code, which prohibits women
from remarrying for 180 days after a divorce, violates the Constitution <strong>of</strong> Japan
1949 (“the Constitution”) and international instruments such as CEDAW and the
International Covenant on Civil and Political Rights 1966 [ “ICCPR”].
The appellants, X1 and X2, began living together in a de facto marriage immediately
after X1, on 1 December 1988, obtained a divorce from her former husband and obtained
custody <strong>of</strong> her two children. On 9 December 1988, X2 applied for permission to adopt
the two children <strong>of</strong> X1. On 7 March 1989, X1 and X2 submitted <strong>of</strong>ficial notification <strong>of</strong>
their marriage. They were unable to register their marriage because Article 733 <strong>of</strong> the
Civil Code prohibited women from remarrying for 180 days after obtaining a divorce. The
Family Court also denied X2 the right to adopt X1’s children during the 180 day waiting
period on the basis that it was contrary to the welfare <strong>of</strong> the children since the marriage
might never be formalised. X1 and X2 began court proceedings on the basis that Article
733 <strong>of</strong> the Civil Code was unconstitutional as it discriminated against women. Their claim
was dismissed in the District Court and they subsequently appealed to the High Court.
The appellants argued in the High Court that the purpose <strong>of</strong> Article 733 was unreasonable
as it was not established to ensure clarity in paternity but rather was based on Confucian
19
CEDAW
Japan

X1 and X2 v Government <strong>of</strong> Japan (Japan)
morals and paternalism. Even if the purpose was reasonable they argued the waiting
period was unreasonable and did not address the purpose <strong>of</strong> Article 733 for a number
<strong>of</strong> reasons. First, it did not reflect the reality that many couples would have ceased
sexual relations and lived apart for some time prior to an <strong>of</strong>ficial divorce. Further,
since de facto remarriages could not be avoided, the waiting period did not reduce
the possibility that a child <strong>of</strong> a new de facto husband might be born, but still be
presumed to be the child <strong>of</strong> the former husband. Further, the appellants argued that
there were other reliable means <strong>of</strong> determining paternity. These included blood tests
or an alternative law creating a paternity presumption in favour <strong>of</strong> a later husband
but making it subject to challenge by a former husband. The appellants concluded
that if a waiting period was reasonable then 180 days was too long. They claimed
that a period <strong>of</strong> 101 days after the end <strong>of</strong> the marriage should be sufficient to clarify
paternity.
Finally, the appellants argued that the provision, since it applied only to women and
not to men, was discriminatory and in breach <strong>of</strong> Articles 13, 14.1, 15, 16 and 24 <strong>of</strong>
the Constitution, the Preamble, Articles 2, 15 and 16 <strong>of</strong> CEDAW, and Article 23 <strong>of</strong> the
ICCPR. The appellant concluded that the provision represented an illegal exercise <strong>of</strong>
public authority by government <strong>of</strong>ficers and should be abolished or amended.
Decision
The Court dismissed the appeal. It held that the appropriate standard that applies
to discrimination is reasonableness as provided by Article 1 <strong>of</strong> the State Redress
<strong>Law</strong>. Consequently, either the purpose <strong>of</strong> Article 733 <strong>of</strong> the Civil Code must
be unreasonable or if the purpose is reasonable the provisions must provide
unreasonable methods <strong>of</strong> achieving those purposes. For example, if the waiting
period does not prevent confusion in relation to paternity but instead unnecessarily
limits the remarriage <strong>of</strong> women, then the method (i.e. the waiting period) would be
considered unreasonable.
The Court held that neither the purpose <strong>of</strong> the Article nor the restrictions it imposed
were unreasonable. The Court referred to the Constitution and a number <strong>of</strong>
international conventions including CEDAW and the ICCPR. Although the Court
conceded that Article 733 discriminated against women it held it did not breach the
Constitution or international conventions because discrimination was acceptable
where it aimed to protect the welfare <strong>of</strong> newly born children by clarifying paternity.
The Court noted that the purpose <strong>of</strong> the law was not to enforce paternalism, but rather
to avoid confusion in paternity. Further, the Court stated that this waiting period was
necessary because in Japan, married couples may divorce by agreement, without
any required period <strong>of</strong> being apart. Hence, without the legal waiting period, children
could be born without certainty <strong>of</strong> their paternity. In relation to alternative measures
20

to clarify paternity suggested by the appellants, the Court found that they would not
be cost-effective and that the potential harm to the welfare <strong>of</strong> children outweighed
the need for such law. The Court also stated that the waiting period <strong>of</strong> six months was
reasonable because pregnancy could be clearly determined after this time.
Commentary
This judgment supported the existing system, which restricted women’s freedom <strong>of</strong>
marriage. The Court stated that Article 733 <strong>of</strong> the Civil Code was not sufficiently
unreasonable to be struck down or amended. The judges left it to the legislature to
make changes in the provision and to decide the extent to which women’s freedom
to marry could be restricted.
The judgment used the constitutional domestic standard <strong>of</strong> reasonableness that is
provided in the State Redress <strong>Law</strong>. This made it hard to prove discrimination and
satisfy the equality provision. To prove that a law is discriminatory, it must be shown
that there were reasonable alternatives available to replace it. For example, current
medical advancements show that 100 days is long enough to determine paternity
and the longer waiting period should have been considered unconstitutional on
the basis <strong>of</strong> unreasonableness. In relation to CEDAW, the Court assumed that its
equality provisions were no stricter than those in the Constitution, and therefore
a constitutional analysis was sufficient. However, the Committee on CEDAW has
stated that provisions such as Article 733 are contrary to CEDAW, and the Court
should have considered this and further examined the implications <strong>of</strong> international
standards in this case.
Although this judgment is conservative in its findings, it did inspire a public debate
on women’s rights to marriage, which subsequently forced the Japanese government
to review the law in question. Further, although the role <strong>of</strong> international law needs to
be further emphasised by advocates in courts, the extensive reference by the Court to
international law is a positive recognition <strong>of</strong> its potential utility.
21
X1 and X2 v Government <strong>of</strong> Japan (Japan)

CEDAW
Pakistan
Article 16.1(b)
Marriage and Family Life
Marriage and Consent
Humaira Mehmood (Petitioner) v The State and others (Respondents)
1999 Pakistan Current Criminal Rulings 542 (Lahore)
18 February 1999
Tasadduq Hussain Jilani J
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979, Article 16;
Cairo Declaration on Human Rights in Islam 1990, Articles 5, 6;
Constitution <strong>of</strong> Pakistan 1962, Article 98;
Constitution <strong>of</strong> Pakistan 1973, Articles 4, 25, 35, 199;
Contempt <strong>of</strong> Courts Act, Section 3;
Criminal Procedure Code, Sections 491, 561-A;
Muslim Personal <strong>Law</strong>, Section 34.
The Court considered two writ petitions in this case. In the first petition it examined
the meaning and role <strong>of</strong> consent in a valid marriage under Pakistani law. In the
second petition, brought by a human rights activist, the Court considered whether the
police in their investigations had acted male fides (in bad faith). It also considered
whether courts have the authority created by the Constitution <strong>of</strong> Pakistan 1973 [“the
Constitution”] and CEDAW to sanction the actions <strong>of</strong> the police and whether it should do
so in this instance.
On 16 May 1997, a marriage ceremony (Nikah) was performed between Mehmood
Butt and Mst. Humaira. Both parties consented to the marriage. The marriage was
<strong>of</strong>ficially registered on the same day. After disclosing her marriage to her parents,
who did not agree with her choice <strong>of</strong> husband, Mst Humaira was beaten severely and
confined to hospital for one month. Nikah Khawan, who conducted the marriage
ceremony, claimed that he was threatened by the police and told to deny that he had
performed the ceremony. On 28 October 1998, the police received a report from
Mst. Humaira’s family that Mehmood Butt and his brother had abducted a young
woman named “Rabia”. The investigation was later cancelled on the basis that no
such abduction had ever taken place. In November 1998, Mehmood Butt and Mst.
22

Humaira Mehmood v The State and others (Pakistan)
Humaira fled to the Edhi Centre, a women’s shelter in Karachi. On 30 November
1998, Mst. Humaira was forcibly arrested at the shelter and removed by the police
who were accompanied by her brother, although no charges had been laid against
her. She was later released.
On 25 December 1998, charges were laid against Mehmood Butt and his mother
for the alleged abduction <strong>of</strong> Mst. Humaira from Fortress Stadium, Lahore on 29
October 1998, two months earlier. Mst. Humaira was also charged with breaking
Hudood law by committing adultery (Zina). Mst. Humaira’s family claimed that
she had been previously married to Moazzam Ghayas by a ceremony on 14 March
1997. The marriage was not <strong>of</strong>ficially registered until 7 March 1998. A video tape
<strong>of</strong> this ceremony, in which Mst. Humaira was weeping, was <strong>of</strong>fered as evidence <strong>of</strong>
its occurrence. On 29 January 1999, both Mehmood Butt and Mst. Humaira were
arrested and publicly beaten by the police, despite police knowledge that “pre-arrest
bail” had been granted in court.
In the first petition, Mst. Humaira argued that her initial marriage to Mehmood Butt
was valid and her subsequent marriage to Moazzam Ghayas was invalid. She based
that claim on two arguments. First, her marriage to Moazzam Ghayas could not be
valid because she was already married to Mehmood Butt at the time <strong>of</strong> registration <strong>of</strong>
the marriage to Moazzam Ghayas. She married Mehmood Butt <strong>of</strong> her own consent
and various witnesses observed that it was a valid marriage. She claimed that the
video evidence <strong>of</strong> her marriage to Moazzam Ghayas that attempted to place the
ceremony prior to her marriage with Mehmood Butt was a false attempt to pre-date
it. Second, the petitioner relied upon Muslim law to argue that marriage is not valid
without consent. She argued that as she did not consent to the marriage with Mr.
Moazzam Ghayas, it was invalid.
In the second petition, a human rights activist intervened to challenge police
practice and to propel the courts to sanction their actions. She argued that the police
had acted in allegiance with the family and in doing so had abused their powers.
She cited the following incidents in support <strong>of</strong> her arguments. She argued that the
abduction <strong>of</strong> Mst. Humaira by Mr. Mehmood Butt never took place. It was unlikely
that Mr. Moazzam Ghayas would have waited two months to report the supposed
abduction <strong>of</strong> his wife. It was unlikely that someone could abduct a person from a
busy shopping centre in Fortress Centre, Lahore. Mst. Humaira also claimed she
had not been abducted. She referred to the earlier report regarding the abduction <strong>of</strong>
“Rabia” which the police had conceded was a false cover used to seek out and arrest
Mst. Humaira and Mr. Mehmood Butt, and the arrest at Karachi <strong>of</strong> Mst. Humaira
despite a ‘pre-arrest bail’ on record. The second petitioner argued that such actions
cumulatively showed bad faith and maliciousness on the part <strong>of</strong> the police. Further,
such actions were in breach <strong>of</strong> international instruments such as CEDAW.
23

Humaira Mehmood v The State and others (Pakistan)
The respondents, Moazzam Ghayas and Malik Abbas Khokar (the petitioner’s
father), argued that Mst. Hamaira had broken Hudood law, and at the same time,
the law <strong>of</strong> god, which is beyond the scope <strong>of</strong> the Court.
The other respondent, the State, argued that the police did not go beyond their duty
in their activities. The Court may not quash a case unless there is no evidence or the
charges are malicious. In this case, the police were within their duty to investigate
the abduction charges and to investigate any other <strong>of</strong>fences that appeared to have
occurred.
Decision
Both petitions were successful. In the first petition the Court held that a marriage
without consent is invalid. It noted that if two people indicate they have a consensual
marriage, there is a presumption <strong>of</strong> truth based on what they say, rather than what
a third party might say. Further, the Court held that a marriage with a person who
is already married is invalid. The Court found that because the marriage between
Mst. Humaira and Mehmood Butt was valid, it could not uphold a case against Mst.
Humaira for adultery.
In the second petition brought by a human rights activist, the Court stated that it
does have the power to intervene in police action or to quash a case when there is
evidence <strong>of</strong> bad faith on the part <strong>of</strong> the police. In this case, the Court found that
there was ample evidence <strong>of</strong> bad faith by the police. Firstly, it cited the false case
against “Rabia”, and the arrest <strong>of</strong> Mst. Humaira despite police knowledge that “prearrest
bail” had been granted. The Court also agreed with the petitioner that it was
unlikely that a husband would wait two months to report the abduction <strong>of</strong> his wife.
Secondly, the Court acknowledged the police’s abusive treatment <strong>of</strong> Mst. Humaira
and Mehmood Butt upon their arrest. Finally, it found that the threats by police to the
person who performed the marriage ceremony between Mst. Humaira and Mehmood
Butt were also evidence <strong>of</strong> bad faith on the part <strong>of</strong> the police.
The Court made a number <strong>of</strong> orders in response to its finding <strong>of</strong> bad faith. It
convicted a police <strong>of</strong>ficer, who had lied in court, <strong>of</strong> the <strong>of</strong>fence <strong>of</strong> obstructing the
process <strong>of</strong> justice. The <strong>of</strong>ficer was sentenced to fifteen days in jail and a fine <strong>of</strong> 5000
rupees. The Court also ordered the Inspector General <strong>of</strong> Police to delegate a highranking
<strong>of</strong>ficer to investigate and proceed against other police <strong>of</strong>ficials involved with
this case. Finally, the Court ordered that the medical superintendent at the hospital
in which Mst. Humaira was confined conduct an inquiry and proceed against any
<strong>of</strong>ficials responsible for abusing Mst. Humaira.
The Court noted that its findings accorded with a number <strong>of</strong> international instruments
that protect the rights <strong>of</strong> women. It noted that Pakistan is a signatory to CEDAW
24

Humaira Mehmood v The State and others (Pakistan)
which enjoins member states to take all appropriate measures in relation to ensuring
equality in matters <strong>of</strong> marriage and the right to consensual marriage (Article 16).
The Court also referred to the Cairo Declaration on Human Rights in Islam 1990,
which Pakistan had adopted. Articles 5 and 6 state that women have the right to enter
marriage without any restrictions stemming from race, colour or nationality and that
the State has a duty to facilitate marriage. Women have an equal right to human
dignity with men, they also have their own civil entity and financial independence
and the right to retain name and lineage.
Commentary
This judgment is significant for women’s rights in Pakistan in a number <strong>of</strong> ways.
Firstly, the finding was favourable for both petitioners validating Mst. Humaira’s
choice <strong>of</strong> husband and censuring the police for their treatment <strong>of</strong> her. Secondly, the
Court was sensitive to, and acknowledging <strong>of</strong>, the context <strong>of</strong> women’s rights. The
Court made a number <strong>of</strong> positive comments about the place <strong>of</strong> women in Pakistani
society describing women’s equality as a fundamental tenet <strong>of</strong> Islam, “male
chauvinism, feudal bias, and compulsions <strong>of</strong> a conceited ego should not be confused
with Islamic values. An enlightened approach is called for”. By acknowledging the
role <strong>of</strong> the family, tradition, and religion, and by speaking out against the abuse <strong>of</strong>
Mst. Humaira by both the State and her family the Court made a distinctive step
towards the “enlightened approach” that it encourages.
Finally, the Court referred favourably to the international obligations <strong>of</strong> Pakistan,
including reference to CEDAW. Although its decision was based on domestic statutes
and the case law <strong>of</strong> Pakistan it noted that its findings accorded with international
instruments that protect the rights <strong>of</strong> women.
25

CEDAW
India
Article 16.1(f)
Marriage and Family Life
Custody and Guardianship
Ms. Githa Hariharan and another (Petitioners) v Reserve Bank <strong>of</strong>
India and another (Respondents)
With
Dr. Vandana Shiva (Petitioner) v Jayanta Bandhopadhyaya and
another (Respondents)
AIR 1999 Supreme Court 1149
Supreme Court <strong>of</strong> India
17 February 1999
Dr. A. S. Anand CJ, M. Srinivasan and Umesh C. Bannerjee JJ
<strong>Law</strong>s and International Instruments Considered
Beijing Declaration 1995;
CEDAW 1979, Article 16 (d), (f);
Constitution <strong>of</strong> India 1949, Articles 14, 15;
Guardians and Wards Act 8 <strong>of</strong> 1890, Section 19(b);
Hindu Minority and Guardianship Act 1956, Section 6(a).
This case deals with sex discrimination under Indian guardianship law. There were two
separate writ petitions filed in these proceedings both utilising the equality provision
<strong>of</strong> the Constitution <strong>of</strong> India 1949 [“the Constitution”] to challenge the legality <strong>of</strong>
section 6(a) <strong>of</strong> the Hindu Minority and Guardianship Act 1956 [“HMG”] and section
19(b) <strong>of</strong> the Guardians and Ward Act 1890 [“GWA”]. The Court considered whether
the Acts contravene the equality provisions (Articles 14, 15) <strong>of</strong> the Constitution on
the basis that they exclude mothers from being the natural guardians <strong>of</strong> their children
during the father’s lifetime, and therefore discriminate against mothers on the basis
<strong>of</strong> their sex. As both writ petitions challenged the constitutionality <strong>of</strong> the same
sections <strong>of</strong> the two Acts, they were heard together.
In the first petition, Githa Hariharan (a writer) and her husband (a medical scientist),
jointly applied to the Reserve Bank <strong>of</strong> India (the first respondent) for Relief Bonds
in the name <strong>of</strong> their son. In the application they expressly stated that Githa Hariharan
would act as guardian for the investments for their son. The Reserve Bank <strong>of</strong> India,
26

Ms Githa Hariharan and another v Reserve Bank <strong>of</strong> India and another etc. (India)
requested that either the father sign as guardian or a certificate <strong>of</strong> guardianship from
a competent authority in favour <strong>of</strong> the mother accompany the application, to meet
the requirements <strong>of</strong> section 6(a) <strong>of</strong> the HMG Act. This led to the filing <strong>of</strong> the first
petition.
In the second petition, the petitioner, Dr. Vandana Shiva, was the wife <strong>of</strong> the
respondent, Jayanta Bandhopadhyaya. The respondent had instituted divorce
proceedings against his wife, and claimed custody <strong>of</strong> their minor son. He claimed to
be the natural guardian <strong>of</strong> the child according to the provisions <strong>of</strong> the HMG Act and
stated that no decision could be taken in regard to his son without his permission.
This led to the filing <strong>of</strong> the second petition.
The petitioners argued that section 6(a) <strong>of</strong> the HMG Act and section 19(b) <strong>of</strong> the
GWA violate the equality clauses <strong>of</strong> the Constitution because the mother <strong>of</strong> the
minor is relegated to an inferior position on the grounds <strong>of</strong> sex alone since her right
as natural guardian is only cognisable “after” the father. The petitioners argued that
both sections should be struck down as unconstitutional.
The respondents argued that section 6(a) <strong>of</strong> the HMG Act states clearly that the
father <strong>of</strong> a Hindu minor is the only natural guardian and only after the lifetime <strong>of</strong> the
father can the mother act as the natural guardian.
Decision
The Supreme Court granted relief in both petitions by broadening the meaning
<strong>of</strong> the statutes rather than by striking down the provisions <strong>of</strong> the two Acts as
unconstitutional. It held that a literal interpretation <strong>of</strong> the word “after” to mean “after
the death <strong>of</strong>” “undoubtedly violates gender equality, one <strong>of</strong> the basic principles <strong>of</strong>
the Constitution”. The Court therefore reinterpreted the word “after” to mean “in the
absence <strong>of</strong>” and held that the Reserve Bank <strong>of</strong> India was incorrect in not accepting
the application naming the mother as guardian.
The Court defined “in the absence <strong>of</strong>” to mean where the father is not in actual charge
<strong>of</strong> the affairs <strong>of</strong> the minor. This could either be because <strong>of</strong> his indifference or because
<strong>of</strong> an agreement between him and the mother <strong>of</strong> the minor (oral or written), and the
minor is in the exclusive care and custody <strong>of</strong> the mother, or the father for any reason
is unable to take care <strong>of</strong> the minor because <strong>of</strong> his physical and/or mental incapacity.
The mother would then act as the minor’s natural guardian and all her actions would
be valid even during the lifetime <strong>of</strong> the father, who would be deemed absent for the
purposes <strong>of</strong> section 6(a) <strong>of</strong> HMG Act and section 19(b) <strong>of</strong> the GWA.
The Court also noted that its interpretation <strong>of</strong> the two sections conforms to two
international instruments, CEDAW and the Beijing Declaration. These instruments
27

Ms Githa Hariharan and another v Reserve Bank <strong>of</strong> India and another etc.(India)
direct state parties to take appropriate steps to prevent all forms <strong>of</strong> discrimination
against women. The Court observed that domestic courts in India are under an
obligation to construe domestic laws in line with international conventions and
norms.
Commentary
The Court used the fundamental right to equality to reinterpret the law so as to
allow mothers guardianship <strong>of</strong> their children in limited circumstances during the
lifetime <strong>of</strong> their father. In that sense the decision <strong>of</strong> the Court was a positive step in
the direction <strong>of</strong> the rights <strong>of</strong> women in that it recognised and upheld a fundamental
principle <strong>of</strong> equality as entrenched in the two instruments. However, a closer reading
<strong>of</strong> the judgment reveals strong patriarchal leanings. It is only when the father is
not able to take actual charge <strong>of</strong> the affairs <strong>of</strong> the minor, or when there is a specific
arrangement between the father and the mother, that the mother can be recognised
as the natural guardian. Thus, if the mother acts in the capacity <strong>of</strong> the guardian and
that is challenged, she would have to prove “the absence <strong>of</strong>” the father. Notably by
contrast, section 6(a) states that the mother <strong>of</strong> an “illegitimate” child shall be the
natural guardian, and “after” her, the father would be recognised as the guardian. This
reverses the onus so that a mother must take responsibility for the “illegitimacy”.
If the Court had struck down the provisions as unconstitutional and declared both
parents to be the guardians in any circumstances, it would have gone a long way
towards the recognition <strong>of</strong> the mother as an independent person and given her much
more freedom to make decisions with regard to her child. This judgment therefore
does not bestow equal status on the mother and the father as guardians.
28

Article 16.1(f)
Marriage and Family Life
Custody and Guardianship
Surya Prakash (Appellant) v Shirley Reshmi Narayan (Respondent)
Civil Appeal No. HBA0001J.99L
High Court <strong>of</strong> Fiji, Lautoka
5 May 2000
Madraiwiwi J
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Constitution <strong>of</strong> Fiji 1997, Sections 3, 22, 43, 43(2);
Convention on the Rights <strong>of</strong> the Child 1989, Articles 3, 9;
Criminal Procedure Code Cap 21;
Magistrates Courts (Civil Jurisdiction) Decree, Sections 2(1)(e), 4(b), 26, 27(2);
Matrimonial Causes Act Cap 51;;
Magistrates Courts Act Cap. 14, Section 27(2);
Maintenance and Affiliation Act. Cap. 52, Sections 3(d), 4(b), 26, 27(2);
Matrimonial Causes Act Cap 51;
Matrimonial Proceeding Act 1960 (UK).
This case considered whether courts have the power to issue “interim” custody
orders under the Maintenance and Affiliation Act [“the Maintenance Act”]. In doing
so, the High Court [“the Court”] considered whether the test <strong>of</strong> ‘the best interests <strong>of</strong>
the child’, articulated in international conventions that protect the rights <strong>of</strong> children,
should be imported into the meaning <strong>of</strong> the Maintenance Act to empower courts to
issue interim custody orders.
Shirley Reshmi Narayan and Surya Prakash separated when their two children,
Sudharsan and Akarshan, were two years and eight months and nine months old
respectively. At the time <strong>of</strong> the separation Akarshan continued to live with the mother
and Sudharsan went to live with his father’s parents. Shirley Reshmi Narayan filed
for maintenance and custody <strong>of</strong> both children. On 7 January 1999, an order was
made granting her interim custody <strong>of</strong> Sudharsan Prakash Sami. Reasonable access
was granted to the father, Surya Prakash.
29
CEDAW
Pacific Islands: Fiji

Surya Prakash v Shirley Reshmi Narayan (Pacific Islands: Fiji)
The father <strong>of</strong> the children appealed the order on the basis that the Magistrate had no
power to make interim custody orders under the Maintenance Act. He argued that an
interim order could only be granted if divorce proceedings were before the court and
as divorce proceedings were not in issue the Magistrate was precluded from issuing
an interim custody order. Further, he argued he was not granted a fair hearing as the
Magistrate had refused an adjournment to enable him to properly present his case
and call witnesses.
Decision
The Court held that the interim custody order granted by the lower court was legally
granted on the basis that the “best interests <strong>of</strong> the child” was the appropriate test
to apply to the circumstances <strong>of</strong> the case. The application <strong>of</strong> that test supported
the granting <strong>of</strong> an interim custody order in favour <strong>of</strong> the mother. Although there is
precedent to support the argument that the Maintenance Act does not empower the
Court to make an interim custody order, the Court held that a broader interpretation
<strong>of</strong> the Act was required on two grounds. First, although the Act does not, on the
surface, empower the making <strong>of</strong> interim custody orders there are exceptions to
that position. The Criminal Procedure Code Cap. 21 and the Magistrates Courts
(Civil Jurisdiction) Decree 1988 both operate concurrently to the Act and empower
the making <strong>of</strong> interim custody orders except where ‘the validity or dissolution
<strong>of</strong> any marriage’ is at issue. In this case that issue was not in contention because
the dissolution <strong>of</strong> the parties’ marriage was not before the Court and therefore an
exception could be granted.
Second, the Court looked to the Constitution <strong>of</strong> Fiji 1997 [“the Constitution”] and
international conventions to support their findings that the best interests <strong>of</strong> the child
was the appropriate test for the interpretation <strong>of</strong> the Act. The Court referred to section
22 <strong>of</strong> the Constitution, which states that every person has a right to life and sections
3 and 21(4) <strong>of</strong> the Constitution, which emphasise the need to take a broad and
contextual approach to the interpretation <strong>of</strong> its provisions.
The Court also looked to Article 3 <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child
1989, which states that the best interests <strong>of</strong> the child is the primary consideration in
all cases concerning children. Article 43(2) <strong>of</strong> the Constitution compels Fiji courts
to take note <strong>of</strong> international human rights instruments. The Court decided therefore
that the Act should be interpreted to conform to the Convention on the Rights <strong>of</strong> the
Child and other international instruments such as the Bangalore Principles <strong>of</strong> 1998.
The Bangalore Principles were formulated by a high level colloquium <strong>of</strong> eminent
judges from the Commonwealth and included statements encouraging the practice <strong>of</strong>
courts to read international norms into domestic law. The Court also relied heavily
on the Indian decision <strong>of</strong> Vishaka v State <strong>of</strong> Rajasthan (1997) VII AD SC53 where
CEDAW was cited and the Australian decision <strong>of</strong> Minister <strong>of</strong> State for Immigration
30

Surya Prakash v Shirley Reshmi Narayan (Pacific Islands: Fiji)
and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 as further favourable support
for the domestic use <strong>of</strong> international norms and conventions. The Court noted that it
had little hesitation in moving beyond the jurisdictions to which it traditionally had
regard (i.e. England, Australia and New Zealand) since human rights are a universal
concept.
In this case, the application <strong>of</strong> the international principle <strong>of</strong> the “best interests <strong>of</strong> the
child” resulted in the making <strong>of</strong> an interim custody order in favour <strong>of</strong> the mother <strong>of</strong>
the children.
Commentary
This case was positive for women in both its immediate outcome and the broader
implications. The Court interpreted the Act broadly to include power to make
interim custody orders if it is in the best interests <strong>of</strong> the child even though the Act
does not, on the surface, appear to grant such power. Since most maintenance and
custody cases are heard in the Magistrates Court, this will enable women to force the
courts to make immediate custody decisions in similar cases. This case overturned
25 years <strong>of</strong> decision-making that had followed a restrictive approach to legislative
interpretation. This approach did not did not prioritise children. (See Kamoe v
Kamoe, Civil Appeal No. 3/1984, which ruled that the Maintenance Act gave no
power to order interim custody).
The reference to, and reliance upon, the Convention on the Rights <strong>of</strong> the Child 1989
and other international norms and conventions is also significant, not only because
its contents are recognised as relevant to the case, but because it gains strength
and legitimacy from each subsequent use in the courts. <strong>Case</strong>s such as this and the
earlier decision <strong>of</strong> Seniloli and Another v Semi Voliti (Civil Appeal No. HBA0033
<strong>of</strong> 1999S) citing the Convention <strong>of</strong> the Rights <strong>of</strong> Children are setting precedents for
lawyers to utilise international conventions when fighting for the rights <strong>of</strong> women
and children. Finally, the Court’s acknowledgement <strong>of</strong> the Bangalore Principles is
in line with growing international recognition <strong>of</strong> their importance and is a further
positive outcome <strong>of</strong> this case. In applying standards such as the Bangalore Principles,
the judiciary can play an increasingly important role in the furtherance <strong>of</strong> women’s
rights.
31

CEDAW
India
Article 16.1(h)
Marriage and Family Life
Inheritance and Succession
Madhu Kishwar and others (Petitioners) v State <strong>of</strong> Bihar and others
(Respondents)
With
Juliana Lakra (Petitioner) v State <strong>of</strong> Bihar (Respondent)
(1996) 5 Supreme Court <strong>Case</strong>s 125
Supreme Court <strong>of</strong> India
17 April 1996
Kuldip Singh, M. M. Punchhi and K. Ramaswamy JJ
<strong>Law</strong>s and International Instruments Considered
Bihar Scheduled Areas Regulation 1969;
CEDAW 1979, Articles 1, 2(b), (c), (e), (f), 3, 5(a), 13, 14, 15;
Chotanagpur Tenancy Act 1908, No.6 <strong>of</strong> 1908, Sections 7, 8, 76;
Constitution <strong>of</strong> India 1949, Preamble, Articles 13-16, 21, 32, 38, 39, 46, 51 A(h),
(j), 366;
General Clauses Act 1897, Sections 13(1), (2);
Hindu Succession Act 1956, Section 2(2);
Indian Succession Act 1925, Sections 3, 29;
Protection <strong>of</strong> Human Rights Act 1993 (10 <strong>of</strong> 1994), Sections 2(d), 12;
Santhals (Amendment) Act 1958;
Santhals Parganas Tenancy (Supplementary Provisions) Act 1949;
Universal Declaration <strong>of</strong> Human Rights 1948;
United Nations Declaration on the Right to Development 1986, Articles 1, 6(1), 8.
This case examines the succession rights <strong>of</strong> tribal women in India. There were two
separate writ petitions in these proceedings where the Court considered whether
legislation, which provides for succession along the male line to the exclusion <strong>of</strong>
women, was contrary to the Constitution <strong>of</strong> India 1949 [“the Constitution”] and
international conventions that protect the rights <strong>of</strong> women.
Customary succession law, enshrined in the Chotanagpur Tenancy Act 1908 [“the
32

Madhu Kishwar and others v State <strong>of</strong> Bihar and others with Juliana Lakra v State <strong>of</strong> Bihar (India)
Tenancy Act”] governing tribal communities in the state <strong>of</strong> Bihar and other parts
<strong>of</strong> India, provided for succession along the male line to the exclusion <strong>of</strong> women.
Traditionally in tribal communities cultivation was always carried out as a joint
enterprise by the family in which women, as wives and daughters <strong>of</strong> the male
landholder, worked on the land alongside the men. At the death <strong>of</strong> the landholder
the tenancy was transferred to the next male in the line. As a result, the females
whose interests were joined with the last male holder, were rendered landless and
<strong>of</strong>ten suffered loss <strong>of</strong> livelihood and destitution. Although a widow or an unmarried
daughter had usufructary rights (the right to use without any title) in the family land
for her lifetime, as established by the State Level Tribal Advisory Board in 1988,
there was no guarantee that the male heirs would respect that right.
The first petitioner was the editor <strong>of</strong> an activist women’s magazine, a widow and a
married daughter from the Ho tribe. The second petitioner was a woman from the
Oraon Christian tribal community. The petitioners based their claim on two arguments.
First, they claimed that sections 7, 8 and 76 <strong>of</strong> the Tenancy Act discriminated
on the basis <strong>of</strong> sex because they provided for exclusive male succession and thus
contravened the fundamental right to equality between men and women and the right
to livelihood for women, which were both guaranteed in the Constitution.
Alternatively, the petitioners argued that the term “male descendants” in section 7 <strong>of</strong>
the Tenancy Act should be interpreted expansively to include “female descendants”
in accordance with the rules <strong>of</strong> legislative interpretation set out in section 13(1) <strong>of</strong>
the General Clauses Act 1897. This Act states that where legislation refers to the
masculine gender, it is to include females, unless such an interpretation is repugnant
to the context <strong>of</strong> the statute.
The respondents, the State <strong>of</strong> Bihar and others, argued that allowing succession
rights to female heirs would increase the threat <strong>of</strong> land alienation and fragmentation.
They relied upon a report, commissioned by the State <strong>of</strong> Bihar, which had found
that the tribal people in the area were not interested in having the law changed or
reinterpreted to change the existing situation. The report concluded that if the estates
went into the hands <strong>of</strong> female heirs, there would be great agitation and unrest amongst
tribal people who were sensitive to matters relating to their custom. The respondents
also argued that the usufructary rights <strong>of</strong> female dependants, which were supported
by the Constitution, sufficiently protected the livelihood <strong>of</strong> female dependants and as
a result, changes to succession rights for females were unnecessary.
The majority decision
The Court recognised that the customary law <strong>of</strong> succession discriminated against
tribal women but refused to strike it down. The Court held that it was not desirable
to declare customary law to be contrary to the constitutional rights <strong>of</strong> women under
33

Madhu Kishwar and others v State <strong>of</strong> Bihar and others with Juliana Lakra v State <strong>of</strong> Bihar (India)
Articles 14, 15 and 21, since rules <strong>of</strong> succession do sometimes provide differential
treatment that is not necessarily equal. Such lack <strong>of</strong> uniformity would not in all
situations constitute a violation <strong>of</strong> equality since this would disrupt the existing
state <strong>of</strong> the law. The majority <strong>of</strong> the judges held that if they found in favour <strong>of</strong> the
petitioners, there may be a flood <strong>of</strong> similar claims in diverse situations.
However, the Court held that the right to a livelihood was protected by the
Constitution and therefore the exclusive right <strong>of</strong> male succession, enshrined in
sections 7 and 8, must remain in suspended animation until the right to livelihood <strong>of</strong>
the female dependants <strong>of</strong> the last male holder expired. Only upon the exhaustion or
the abandonment <strong>of</strong> land by female relatives could the males in the line <strong>of</strong> descent
take over the holding exclusively. The Court held this sufficiently protected female
dependants.
The Court also held that the term “female descendants” could not be read into the
term “male descendants” using statutory interpretation in matters <strong>of</strong> succession since
customs vary from people to people and region to region in Indian law. The Tenancy
Act specifically protects customary succession laws in favour <strong>of</strong> males because tribal
people value their own customs and traditions. The Court found that there was no
legislative intent therefore to include “female” in the term “male”.
The Court further held that judicial activism in the courts, where judges reinterpret
provisions beyond the legislative intent should be avoided. It found that it was
inappropriate and elitist for judges to enforce on tribal people the principles <strong>of</strong> equal
succession that is enshrined in other personal laws such as the Hindu Succession Act
1956 or the Indian Succession Act 1925. The role <strong>of</strong> the courts, it was held, is merely
to advise and point out any legislative gaps to the Executive so that the State, in its
legislative role, can attend to any problems.
The dissenting judgment: K. Ramaswamy J
Ramaswamy J held, in contrast to the majority, that the full rights to the estate <strong>of</strong>
their parent, brother, or husband should be granted to women in tribal communities
as heirs <strong>of</strong> intestate succession so that they could inherit the property equally with
male heirs and with absolute rights. He found that the safeguard provided by granting
usufructary rights to female dependants was insufficient due to the diverse pressures
women face.
The dissenting judge found that the Protection <strong>of</strong> Human Rights Act 1993, enacted by
the Indian Parliament defines human rights to mean, “the rights relating to life, liberty,
equality and dignity <strong>of</strong> the individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by courts in India.” Sections 7 and 8 <strong>of</strong>
the Tenancy Act are in breach <strong>of</strong> the Articles 13, 14, 15, 16 and 21 <strong>of</strong> the Constitution,
34

Madhu Kishwar and others v State <strong>of</strong> Bihar and others with Juliana Lakra v State <strong>of</strong> Bihar (India)
which prohibit discrimination on the ground <strong>of</strong> sex. Further, the Constitution states
that customary law and statute law must comply with the fundamental rights
protected by the Constitution and permits challenges to the validity <strong>of</strong> laws to the
extent that they are inconsistent with the fundamental rights provisions. This secures
the primacy <strong>of</strong> fundamental rights over customary and statute law.
The dissenting judge noted that the principles <strong>of</strong> equality, having been ratified by the
Government <strong>of</strong> India in various international conventions and declarations, should
be upheld. He noted that India had supported the ratification <strong>of</strong> the United Nations
Declaration on the Right to Development 1986 adopted by the UN General Assembly
in 1986, which prohibits sex discrimination by ensuring equality <strong>of</strong> opportunity and
resources and the fair distribution <strong>of</strong> income. CEDAW, ratified by the Government
with reservations to Articles 5, 16 and 29, also reflects the obligation <strong>of</strong> the State
to extend human rights to women in all spheres <strong>of</strong> their life. Article 13 prompts the
State to eliminate discrimination against women in areas <strong>of</strong> economic and social life;
Article 14 focuses on the elimination <strong>of</strong> discrimination faced by rural women; Article
15 promotes equality before the law particularly in the administration <strong>of</strong> property.
The dissenting judge found that the provisions and principles <strong>of</strong> CEDAW and the
concomitant United Nations Declaration on the Right to Development 1986 had
become integral to the Constitution with the enactment and enforcement <strong>of</strong> the
Protection <strong>of</strong> Human Rights Act 1993. The reservations made by the Government <strong>of</strong>
India to CEDAW therefore stood denuded.
The minority judgment also addressed the effect on fragmentation and alienation <strong>of</strong>
tribal lands if equal succession rights were granted to women. The judge found that
any fear <strong>of</strong> fragmentation that applies to women would also apply to men who could
already claim partition <strong>of</strong> land. Therefore the argument was without substance and
inconsistent with public policy. The denial <strong>of</strong> equal succession rights to women on
this basis, the judge found, was unfair, unjust and unconscionable.
Finally, the dissenting judge found that section 13(1) <strong>of</strong> the General Clauses Act 1897
does operate to include the term “female” within the term “male”. This interpretation
allowed principles <strong>of</strong> justice, equity and fairness as embodied in the fundamental
rights provision <strong>of</strong> the Constitution to prevail. He found that this interpretation had
been applied in two other succession laws, the Hindu Succession Act 1956 and the
Indian Succession Act 1925. In the circumstances the dissenting judge held that such
a reading be permitted to allow female descendants to receive equal treatment with
male descendents.
35

Madhu Kishwar and others v State <strong>of</strong> Bihar and others with Juliana Lakra v State <strong>of</strong> Bihar (India)
Commentary
Although the majority judgment did recognise the discrimination and economic
injustice inflicted by customary law against tribal women, the Court refused to
intervene. It adopted a conservative approach to the issue on a number <strong>of</strong> levels. At
the outset its finding that inequality was inevitable in matters <strong>of</strong> succession and could
not be tested against the fundamental right to equality inflicted a blow to women’s
rights jurisprudence. The protectionist approach recommended by the majority was
based on a concern that women might be left destitute, rather than a focus on women’s
rights. Further, even that paternalistic concern for potential destitution is not so much
to “save” women, but to guard against any disturbance <strong>of</strong> public order or breaches
<strong>of</strong> morality. It is debatable if the judgment succeeded in serving that purpose given
the limited nature <strong>of</strong> usufructary rights. In the end the finding <strong>of</strong> the Court merely
reinforced the status quo and ruled against any change in line with the recognition <strong>of</strong>
women’s rights in the international arena.
In contrast, the dissenting judgment encourages judicial activism to the fullest, by
incorporating international law into both domestic law and the Constitution to grant
women equal entitlements rather than entrenching a protectionist policy. Equally,
this judgment is significant in its effort to unpack the conservatism embedded in
each <strong>of</strong> the arguments protecting tribal customs and land. It builds human rights
jurisprudence on two fronts: it supports gender justice with its reference to CEDAW
and other international conventions which protect the rights <strong>of</strong> women and it supports
the incorporation <strong>of</strong> the principles <strong>of</strong> international law into domestic law.
36

Article 16.1(h)
Marriage and Family Life
Inheritance and Succession
C. Masilamani Mudaliar and others (Appellants) v Idol <strong>of</strong> Sri
Swaminathaswami Swaminathaswami Thirukoil and others
(Respondents)
(1996) 8 Supreme Court <strong>Case</strong>s 525
Supreme Court <strong>of</strong> India
30 January 1996
K. Ramaswamy, S. Saghir Ahmad and G. B. Pattanaik JJ
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979, Preamble, Articles 1, 2(f), 3, 13, 14, 15(2);
Constitution <strong>of</strong> India 1949, Articles 13, 14,15(3), 21,51-A(h), (j);
Hindu Succession Act 1956, Sections 14(1), (2), 30;
Protection <strong>of</strong> Human Rights Act 1993, Section 2(b), 12;
UN Declaration on the Right to Development 1986, Articles 1(1), 3, 6, 8.
This case deals with the property rights <strong>of</strong> women and sex discrimination in Hindu
succession law. It considered whether Hindu women have equal succession rights
with men under the Hindu Succession Act 1956 [“the Succession Act”].
The owner <strong>of</strong> 10 acres <strong>of</strong> property bequeathed it, upon his death in 1950, to his wife
S, and his cousin’s widow J, to be enjoyed by them both in equal shares during their
lifetime. The will stated that if one <strong>of</strong> them were to die before the other, the surviving
member would have the right to enjoy the property in its entirety. It was also stated in
the will that the testator’s actions were based on his duty to provide maintenance for
S and J as they were his only family members. S and J enjoyed the property together
until J died in 1960. In 1970 S sold the property.
The respondents, the Idol <strong>of</strong> Sri Swaminathaswami Swaminathaswami Thirukoil
and others, filed a writ petition against the new owners <strong>of</strong> the property as they
had expected to benefit from the property after S’s death as stated in the will. The
respondents requested a declaration from the Court that S obtained only restricted
37
CEDAW
India

C. Masilamani Mudaliar and others v Idol <strong>of</strong> Sri Swaminathaswami Swaminathaswami Thirukoil and others (India)
estate or limited ownership after J’s death and that she was therefore not entitled
to sell the property. The Division Bench <strong>of</strong> the High Court found in favour <strong>of</strong> the
respondents and held that S had acquired only restricted estate under section 14(2)
<strong>of</strong> the Succession Act rather than absolute estate and could not sell the property. The
new owners <strong>of</strong> the property, the appellants, appealed against that decision to the
Supreme Court.
The appellants relied on section 14(1) <strong>of</strong> the Succession Act which states that a
woman has an absolute right to certain types <strong>of</strong> property such as gifts, items given
in marriage, her own income or property earned through a skill or labour, purchased
property, and maintenance or property owed to her in lieu <strong>of</strong> maintenance, whether
acquired before or after the commencement <strong>of</strong> the Succession Act. The appellants
argued that as the property was given to S in lieu <strong>of</strong> maintenance, on the basis <strong>of</strong>
section 14(1), S was the absolute owner <strong>of</strong> the property and not a limited owner with
a restricted right.
The respondents argued that there is an exception to this provision contained within
section 14(2), which states that women do not have complete ownership over property
given by a gift, will or award if their terms attach any restriction to the property.
Section 14(2) <strong>of</strong> the Succession Act states that if a will gives only “restricted estate”
to the beneficiary then section 14(1) does not apply. The respondents argued that the
will provided only restricted estate to S and therefore section 14(1), which gives an
absolute right <strong>of</strong> ownership, did not apply. S, they argued, only had a restricted right
to the property and could not sell it.
The appellants responded by arguing the inapplicability <strong>of</strong> section 14(2), which states
that a will that grants a restricted right only is not subject to section 14(1), because
S had a pre-existing right to maintenance separate from the will. It has been held in
a series <strong>of</strong> cases that the combination <strong>of</strong> a pre-existing right with the bestowal <strong>of</strong> a
restricted rights under the Succession Act leads to an absolute right. An interpretation
<strong>of</strong> the Succession Act in favour <strong>of</strong> the equal rights <strong>of</strong> women, they argued, is in line
with the Constitution and a variety <strong>of</strong> international conventions protecting the rights
<strong>of</strong> women.
The main question before the Supreme Court was whether S, the widow, had become
the absolute owner by operation <strong>of</strong> section 14(1) <strong>of</strong> the Succession Act, or whether
she was a limited owner falling within the purview <strong>of</strong> section 14(2).
Decision
The Court held that S, the widow, had become absolute owner upon J’s death. The
property bequeathed fell within the scope <strong>of</strong> section 14(1) and consequently she
acquired complete ownership. The Court came to this conclusion by taking into
38

C. Masilamani Mudaliar and others v Idol <strong>of</strong> Sri Swaminathaswami Swaminathaswami Thirukoil and others (India)
account the testator’s acknowledgement that he had obligations and duties to provide
maintenance for S and J. Although the terms <strong>of</strong> the will only gave the property and
income for the duration <strong>of</strong> the women’s lifetime, it was in lieu <strong>of</strong> their pre-existing
right to maintenance. This pre-existing right to maintenance, combined with the
limited right that was bequeathed, converts into a full right to ownership by virtue <strong>of</strong>
section 14(1) and precedent set by previous cases.
In support <strong>of</strong> its decision, the Court relied upon several international human rights
norms and conventions that were applicable in India by virtue <strong>of</strong> India’s ratification
<strong>of</strong> those instruments. The consequent enactment <strong>of</strong> domestic laws such as the
Protection <strong>of</strong> Human Rights Act 1993 brings international human rights standards
within the scope <strong>of</strong> India’s definition <strong>of</strong> human rights. The Court referred to the
United Nations General Assembly Declaration on the Right to Development 1986
[“the Declaration”], which recognises that all human rights are indivisible and
independent and the State is under an obligation to fulfil the same without any
discrimination as to sex, race, language or religion.
The Court also referred to CEDAW and its preamble, which states that discrimination
against women violates the principles <strong>of</strong> equality <strong>of</strong> rights and respect for human
dignity. The Court noted that discrimination presents an obstacle to the equal
participation <strong>of</strong> women in the social, political, economic, and cultural life <strong>of</strong> the
country. In doing so it applied the substantive model <strong>of</strong> equality that comes from
CEDAW. Although India acceded to CEDAW with some reservations, Articles 2(f),
3 and 15 <strong>of</strong> CEDAW when read together with the Declaration negate the effect <strong>of</strong>
such reservations. Together these provisions oblige a State to take all appropriate
measures, including legislation, to modify or abolish gender-based discrimination in
the existing laws, regulations, customs and practices.
The Court also referred to sections 2(b) and 12 <strong>of</strong> the Protection <strong>of</strong> Human Rights Act
1993 and Article 21 <strong>of</strong> the Constitution <strong>of</strong> India 1949 [“the Constitution”] which both
protect human rights including the right to life, liberty, equality and the dignity <strong>of</strong> the
individual. Article 21 <strong>of</strong> the Constitution defines the scope <strong>of</strong> the right to life. This
must incorporate within its scope the elimination <strong>of</strong> gender-based discrimination to
make it meaningful for human development. Women are entitled to enjoy economic,
social, cultural, and political rights, without discrimination. The Court noted that
women’s human rights are recognised as part <strong>of</strong> the right to life under the fundamental
human rights provision <strong>of</strong> the Constitution. This reading is important to give effect to
the fundamental duty to develop scientific temper, humanism and a spirit <strong>of</strong> enquiry
and to strive towards excellence in all spheres <strong>of</strong> individual and collective activities
as enjoined in Articles 51-A(h) and (j) <strong>of</strong> the Constitution. Property is an important
endowment or natural asset that accords opportunity, and a means to develop
personality, independence, equal status and dignity <strong>of</strong> persons. The State should
39

C. Masilamani Mudaliar and others v Idol <strong>of</strong> Sri Swaminathaswami Swaminathaswami Thirukoil and others (India)
therefore create conditions and facilities conducive for women to realise the right to
economic development including social and cultural rights.
Commentary
This is a particularly significant case because the Supreme Court <strong>of</strong> India cited and
relied upon a number <strong>of</strong> international conventions that protect a variety <strong>of</strong> human
rights. International human rights law and standards add impetus and urgency to
eliminate gender-based obstacles and discrimination. The Supreme Court, by citing
international laws, addressed the discrimination against women that was present
under traditional Hindu law by interpreting it so that the law conforms with the
right to equality as espoused in the Constitution. Harmonious interpretation is
thus required to give effect to provisions removing gender-based discrimination in
matters such as marriage and succession.
40

Article 16.1(h)
Marriage and Family Life
Inheritance and Succession
Meera Kumari and Mira Khanal (Petitioners) v His Majesty’s
Government, Ministry <strong>of</strong> <strong>Law</strong>, Justice and Parliamentary Affairs,
Secretariat <strong>of</strong> the Council <strong>of</strong> Ministers, House <strong>of</strong> Representatives,
National Assembly (Respondents)
Supreme Court, Special Bench
2 August 1995
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Chapter on Partition <strong>of</strong> the Country Code, No’s. 1, 16, 25;
Constitution <strong>of</strong> Nepal 1990, Articles 1, 11, 17, 23, 88(1), 131;
Nepal Treaties Act 1991, Section 9.
This case examines discrimination in the inheritance rights <strong>of</strong> Nepalese women.
The Court considered whether inheritance laws which permit sons to inherit their
parents’ property without conditions but imposed conditions on daughters was in
breach <strong>of</strong> the Constitution <strong>of</strong> Nepal 1990 [“the Constitution”].
The petitioners, Meera Kumari and Mira Khanal, claimed that No. 16 <strong>of</strong> the Chapter
on Partition <strong>of</strong> the Country Code [“the Code”] discriminated against women. No. 16
<strong>of</strong> the Code stated that although a son could inherit a share <strong>of</strong> his parents’ property
without conditions, a daughter could not inherit a share until she reached the age <strong>of</strong>
35 and only if she was still unmarried.
The petitioners argued that No. 16 <strong>of</strong> the Code, which gives women a belated and
conditional right <strong>of</strong> inheritance, was contrary to the Constitution, which provides
for the equal treatment <strong>of</strong> men and women. They argued the Code was also contrary
to Nepal’s obligations under CEDAW and that under the Nepal Treaties Act 1991,
a domestic law that was inconsistent with a treaty ratified by Nepal was unlawful.
Since this law was inconsistent with both the Constitution and its international
obligations under CEDAW, it should be declared unlawful.
41
CEDAW
Nepal

Meera Kumari and Mira Khanal v His Majesty’s Government etc. (Nepal)
The respondents argued that they did not have the power to make laws and that they
should not have been named as respondents in this case. If they were held to be
responsible they argued that the Constitution did incorporate the principles <strong>of</strong> CEDAW
in relation to equality and property rights and was consistent with international
standards. They argued that the right <strong>of</strong> equality guaranteed in the Constitution was
not a right to full equality in all circumstances. The equality provision should be
interpreted to take into account the different social situations <strong>of</strong> men and women in
Nepal. In this instance, the respondents argued it was appropriate to have different
inheritance conditions treatment for men and women because a woman would
receive property from both her father and her husband, but a man would only receive
property from his father. They argued that if the law was changed it would cause
“disruption <strong>of</strong> the whole structure <strong>of</strong> the traditional society like ours”.
The Court called upon two senior advocates acting as amicus curiae (friends <strong>of</strong> the
court) to provide their opinions on the issues raised in this case. The amicus curiae
argued that the Court should not change inheritance laws in isolation as this would
disrupt societal norms. They argued that such a change should only be made by public
consensus and through the lawmaking process where the public would be given an
opportunity to comment on the proposed laws. This process would validate the law
and avoid it being meaningless. They also argued that the Constitution guaranteed
equal treatment, but only between equal persons and since sons and daughters were
unequal by nature, unequal treatment could not be argued. Finally, the amicus curiae
submitted that the inheritance laws give more protection to women than to men, as
unmarried women receive their inheritance from their fathers at the age <strong>of</strong> 35 and
married women receive their share from their husbands. They concluded that as
women are adequately provided for this could not be held to be discrimination.
Decision
The Court held that the Code did not discriminate against women. It accepted the
argument that sons and daughters were treated equally by the inheritance laws.
The Court held that both sons and daughters had similar access to family property
although the means <strong>of</strong> their access differed. A son inherited property through his
birth family and a daughter inherited property through her husband and his family or,
if she remained unmarried, through her birth family. The Court found that changing
the inheritance laws in favour <strong>of</strong> women would be tantamount to discriminating
against men.
The Court directed the Government <strong>of</strong> Nepal to introduce a bill in parliament within
one year <strong>of</strong> the court order by consulting with women’s organisations, sociologists,
concerned social organisations and lawyers and by examining the legal provisions <strong>of</strong>
other countries on women’s rights in inheritance laws.
42

Meera Kumari and Mira Khanal v His Majesty’s Government etc. (Nepal)
Commentary
This decision reflects a pr<strong>of</strong>ound misunderstanding <strong>of</strong> the concept <strong>of</strong> equality and
a deeply rooted patriarchal bias. On the one hand, the Court spoke <strong>of</strong> equality; on
the other, it discussed the need to take into account implications for society, which
the Court acknowledged was patriarchal. Embedded in all <strong>of</strong> the Government’s
arguments and in the decision was the assumption that women were never going to
have sufficient assets for a court to discuss partition <strong>of</strong> women’s assets. The Court
was not prepared to upset a discriminatory social system that privileges men and in
doing so failed to enforce international norms and standards adopted by Nepal. The
discussion on the “special” nature <strong>of</strong> women and their need for protection was used
by the Supreme Court to justify “equivalent”, but not “equal” rights to inheritance
for women. The Supreme Court appeared unwilling to change the gender stereotypes
which the law was reproducing.
Though the result is not positive for women, the judgment is significant for directing
the Government to examine this issue in consultation with women’s groups. It
should be noted, however, that the consultations and public discussions failed as
reported by UNIFEM.
43

CEDAW
India
General Recommendation 19
Violence Against Women
Sexual Harassment
Apparel Export Promotion Council (Appellant) v A. K. Chopra
(Respondent)
AIR 1999 Supreme Court 625
Supreme Court <strong>of</strong> India
20 January 1999
Dr. A. S. Anand, V. N. Khave JJ
<strong>Law</strong>s and International Instruments Considered
Beijing Declaration 1995;
CEDAW 1979;
Constitution <strong>of</strong> India 1949, Articles 14, 21, 311, 226;
International Covenant on Social Economic and Cultural Rights 1966, Article 7;
Industrial Disputes Act, No.14 <strong>of</strong> 1947.
This case examined the meaning <strong>of</strong> sexual harassment. It considered whether sexual
harassment should be interpreted as actual physical molestation or in the broader
context <strong>of</strong> women’s lives, in line with international conventions and norms such
as CEDAW, which protect the rights <strong>of</strong> women to fair working conditions. The
Court also considered whether in exercising judicial review, the High Court had
the authority to alter the findings <strong>of</strong> fact <strong>of</strong> disciplinary authorities in departmental
proceedings.
Miss X was a junior employee <strong>of</strong> the Apparel Export Promotion Council [“the
Promotion Council”]. The respondent, Mr Chopra, worked as a private secretary to
the chairman <strong>of</strong> the same organisation. On a number <strong>of</strong> occasions the respondent, a
senior employee, made unwelcome sexual advances to Miss X. He pressured her to
accompany him to a hotel to take dictations from the chairman despite the fact that
she was neither trained nor hired for such work. At the business centre <strong>of</strong> the hotel,
Mr Chopra tried to sit close to her, touch her body, and later attempted to physically
molest her while in the lift despite her strong objections to such behaviour.
Miss X lodged a written complaint with the personnel director <strong>of</strong> the Promotion
44

Apparel Export Promotion Council v A. K. Chopra (India)
Council and the respondent was suspended from work while an inquiry was
conducted. A series <strong>of</strong> internal inquiries concluded that the acts <strong>of</strong> the respondent
failed the “test <strong>of</strong> decency and modesty” and that the allegations <strong>of</strong> sexual harassment
against him were proved. On the basis <strong>of</strong> that report, the Disciplinary Authority <strong>of</strong>
the Promotion Council dismissed the respondent with immediate effect.
The respondent filed a departmental appeal before the Staff Committee <strong>of</strong> the
Promotion Council, which concluded that the order terminating the services <strong>of</strong> the
respondent was legal, proper and valid. The respondent subsequently appealed to
the High Court where a single judge found that the respondent had “tried to molest
but had not in fact molested the complainant” and directed the reinstatement <strong>of</strong> the
respondent without back wages. The Promotion Council appealed to the Division
Bench <strong>of</strong> the High Court who agreed with the findings <strong>of</strong> the single judge, noting that
although the respondent had tried to molest Miss X, he had not had physical contact
with her and that such an act was not sufficient grounds for dismissal from service.
The appellant, the Promotion Council, filed an appeal by special leave in the Supreme
Court against the decision <strong>of</strong> the Division Bench.
Decision
The Supreme Court set aside the order <strong>of</strong> the High Court, which had earlier reinstated
the respondent. It also reimposed the punishment <strong>of</strong> the Disciplinary Authority,
which had previously removed the respondent from service. The Court based its
decision on the following reasoning.
The Supreme Court held that the Disciplinary Authority is the initial judge <strong>of</strong> the
facts. In an appeal from the Disciplinary Authority, the Appellate Authority also
has the power and jurisdiction to reconsider the evidence and to come to its own
conclusions. However, once the finding <strong>of</strong> the facts is recorded by that process, no
higher appeal court can interfere with those factual findings unless it finds that the
recorded findings are based either on no evidence or that the findings are wholly
perverse and/or legally untenable. The Supreme Court, in line with precedent, held
that the High Court could not substitute its own conclusion and opinion in regard to
the guilt <strong>of</strong> the delinquent party, or in regard to the harshness <strong>of</strong> the penalty. In the
case at hand, the Court held that the single judge and the Division Bench <strong>of</strong> the High
Court erred by interfering with both the findings <strong>of</strong> fact recorded by departmental
authorities and with the quantum <strong>of</strong> punishment.
Despite this, the Supreme Court disagreed with the substantive findings <strong>of</strong> fact by the
High Court. The Court stated that although the respondent did not actually physically
molest the employee but only tried to molest her it did not make his behaviour less
morally culpable. The High Court’s finding that his removal from service was not
45

Apparel Export Promotion Council v A. K. Chopra (India)
warranted was unrealistic and gave the High Court a lack <strong>of</strong> credibility. In cases
involving sexual harassment, courts are required to examine the broader circumstances
<strong>of</strong> the case and not to focus on narrow technicalities such as the dictionary meaning
<strong>of</strong> the expression “molestation”. They must look at the entire material to evaluate the
genuineness <strong>of</strong> the complaint using sensitivity and sympathy. The Court held that the
High Court had ignored the fact that the conduct <strong>of</strong> the respondent was contrary to
moral sanctions, decency and was <strong>of</strong>fensive to the employee’s modesty. Further, a
reduction <strong>of</strong> punishment in cases <strong>of</strong> sexual harassment, the Court stated, may have a
demoralising effect on female employees and would be a retrograde step. Finally, it
found there was no justification in this case for the High Court to interfere with the
punishment imposed by the Departmental Authority.
In its decision, the Court relied upon Vishaka v State <strong>of</strong> Rajasthan (1997 VII AD S.C.
53) where the Supreme Court held that the Constitution <strong>of</strong> India 1949 protected the
rights <strong>of</strong> women to a safe working environment free from sexual harassment and abuse.
The Court also referred to a number <strong>of</strong> international conventions and norms in support
<strong>of</strong> its interpretation <strong>of</strong> the facts. It noted that the International Labour Organisation
seminar held in Manila in 1993 recognised that sexual harassment in the workplace
was a form <strong>of</strong> gender discrimination against women. CEDAW and the Beijing
Declaration direct all state parties to take appropriate measures to prevent all forms
<strong>of</strong> discrimination against women. Article 7 <strong>of</strong> the International Covenant on Social
Economic and Cultural Rights 1966 recognises the right <strong>of</strong> women to fair conditions
<strong>of</strong> work. The message <strong>of</strong> these instruments, the Court held, is applicable to both the
Indian State to make their laws sensitive to gender, and to the courts to give them effect
wherever possible.
Commentary
The Court broadened the meaning <strong>of</strong> sexual harassment from physical molestation to
include circumstances such as requests for sexual favours and other direct or implicit
verbal and physical conduct with sexual overtones. It noted that it is discrimination
when the submission to, or rejection <strong>of</strong>, such conduct by a female employee could affect
her employment and unreasonably interfere with her work performance by creating
an intimidating or hostile work environment. The Court also referred to international
conventions and norms that protect the rights <strong>of</strong> women such as CEDAW and noted
that courts should interpret domestic legal instruments in line with their provisions,
reinforcing judicial willingness to adopt international principles <strong>of</strong> equality. It observed
that the fundamental rights guaranteed in the Constitution were <strong>of</strong> sufficient amplitude to
encompass all facets <strong>of</strong> gender equality, including the prevention <strong>of</strong> sexual harassment
and abuse. Further, it noted that each incident <strong>of</strong> sexual harassment in the workplace
resulted in a violation <strong>of</strong> the fundamental right to gender equality and the right to life
and liberty, the two most precious rights guaranteed by the Constitution. Such findings
are undoubtedly beneficial to the recognition <strong>of</strong> the rights <strong>of</strong> women.
46

Apparel Export Promotion Council v A. K. Chopra (India)
At the same time however, the Court adopted protectionist language to articulate the
scope <strong>of</strong> sexual harassment as behaviour that is, “wholly against moral sanctions,
decency and was <strong>of</strong>fensive to her modesty.” Given that the law on sexual harassment
is in its nascent stages in India, based primarily on court pronouncements that apply
international legal standards, language consistent with those standards would be
more advantageous for women. Instead <strong>of</strong> emphasising the unwelcome and <strong>of</strong>fensive
nature <strong>of</strong> sexual attention, the power differential at play, and the abuse <strong>of</strong> authority, the
judgment reproduces the language <strong>of</strong> the archaic Indian Penal Code <strong>of</strong> 1860, which
focuses on the morality, decency and chastity <strong>of</strong> the victim. The use <strong>of</strong> those valueladen
terms may limit the legal protection <strong>of</strong> women who fall within its prescribed
moral scope. It is therefore important to introduce terms that place centrality on the
<strong>of</strong>fensive act itself, thereby allowing substantive redress against sexual harassment,
rather than focusing on the personality and situation <strong>of</strong> the victim.
47

CEDAW
India
General Recommendation 19
Violence Against Women
Sexual Harrassment
Vishaka (Petitioners) v State <strong>of</strong> Rajasthan (Respondent)
1997 6 Supreme Court <strong>Case</strong>s 241
Supreme Court <strong>of</strong> India
13 August 1997
J. S. Verma CJ, Sujata V. Manohar, B. N. Kirpal JJ
<strong>Law</strong>s and International Instruments Considered
Bejing Declaration 1995;
CEDAW 1979, Articles 11, 24;
Constitution <strong>of</strong> India 1949, Articles 14, 19, 21, 32, 51(d), 73, 253;
Protection <strong>of</strong> Human Rights Act 1993, Section 2 (d).
This case deals with the rights <strong>of</strong> Indian women to a safe working environment
free from sexual harassment and abuse. The petition, a class action, was brought
by women’s organisations to draw attention to the legislative vacuum in relation to
sexual harassment in the workplace. The action also sought judicial intervention
to acknowledge the gravity <strong>of</strong> the problem and to put in place legal norms and
regulations for redress. This case considered whether the Constitution <strong>of</strong> India 1949
[“the Constitution”] and international conventions provide authority for the Court to
create guiding principles for employers in the absence <strong>of</strong> legislation.
A social worker campaigning against child marriage in Rajasthan was the victim <strong>of</strong>
an alleged gang rape. Consequently, women’s organisations brought a class petition
against the State <strong>of</strong> Rajasthan and the Union <strong>of</strong> India arguing they were obliged by
Articles 14, 15, 19 and 21 <strong>of</strong> the Constitution to ensure the rights <strong>of</strong> working women
to a safe working environment free <strong>of</strong> sexual harassment and abuse.
The petitioners argued that each incident <strong>of</strong> harassment <strong>of</strong> women in the workplace
results in a violation <strong>of</strong> their fundamental right to equality, as well as their right to
life and liberty under Articles 14, 15 and 21 <strong>of</strong> the Constitution. It also amounts to
a violation <strong>of</strong> Article 19(1)(g), (the right to practise any pr<strong>of</strong>ession or carry out any
occupation, trade, or business) by failing to provide a safe working environment.
48

A safe working environment is fundamental to women’s enjoyment <strong>of</strong> a range <strong>of</strong>
human rights. In the absence <strong>of</strong> protective legislation, the petitioners argued, the
Court should set guidelines to fill the legislative vacuum.
Decision
The Supreme Court held that the Constitution did protect the rights <strong>of</strong> women to a
safe working environment free from abuse and sexual harassment. The Court came to
this conclusion by interpreting Articles 14, 15, 19(1)(g), and 21 <strong>of</strong> the Constitution,
which guarantee gender equality and the right for both women and men to work with
human dignity, in line with the Protection <strong>of</strong> Human Rights Act 1993 and a number
<strong>of</strong> international norms and conventions.
The Court cited Article 11 <strong>of</strong> CEDAW, which directs the State to take appropriate
measures to eliminate discrimination against women in their fields <strong>of</strong> employment.
This specifically includes the prevention <strong>of</strong> gender specific violence and sexual
harassment in the workplace. The Court also referred to an <strong>of</strong>ficial commitment
made by the Indian Government during the Fourth World Conference on Women in
Beijing to formulate a national policy on women that would continuously guide and
inform action at every level and in every sector, to set up a Commission for Women’s
Rights to act as a public defender <strong>of</strong> women’s human rights and to institutionalise
a national mechanism to monitor the implementation <strong>of</strong> the Beijing Platform for
Action.
The Court held that the primary responsibility for ensuring a safe working
environment lies with the Legislature and the Executive through the creation <strong>of</strong>
appropriate legislation and a mechanism for its enforcement. However, in the
absence <strong>of</strong> domestic laws providing for the effective enforcement <strong>of</strong> the rights <strong>of</strong>
women to a working environment free from sexual harassment and abuse, the Court
was empowered by Article 32 and the combination <strong>of</strong> Articles 73, 51(c) and 253
<strong>of</strong> the Constitution to provide measures to protect those rights. Article 32 gives the
Court the power to enforce any rights protected under the Constitution and Articles
51(c), 73 and 253 give it the power to implement international conventions. It
said that any international convention that is consistent with fundamental rights
and is in harmony with its spirit must be read into the provisions when there is a
void in the domestic law. The judgment cited the Australian case <strong>of</strong> the Minister
for Immigration and Ethnic Affairs v Teoh 128 ALR 353 [“Teoh”] in support <strong>of</strong> its
position. The Court noted that the Teoh case recognised the concept <strong>of</strong> legitimate
expectation <strong>of</strong> an international instrument’s observance in the absence <strong>of</strong> a contrary
legislative provision. Therefore the combination <strong>of</strong> constitutional provisions and
international conventions referred to by the Court empower it to provide guidelines
to protect female workers until such time as legislation is enacted for that purpose.
The Court also referred to the Beijing Statement <strong>of</strong> the “Principles <strong>of</strong> Independence
49
Vishaka v State <strong>of</strong> Rajasthan (India)

Vishaka v State <strong>of</strong> Rajasthan (India)
<strong>of</strong> the Judiciary in the LAWASIA Region” which supports the Court’s power to
set down guidelines in the absence <strong>of</strong> domestic legislation. The Court adopted the
definition <strong>of</strong> sexual harassment from General Recommendation 19 <strong>of</strong> CEDAW and
provided detailed guidelines to prevent and deter sexual harassment for employers to
adhere to. These guidelines include a complaint process, a disciplinary process and
an appeal process.
Commentary
This case is important on a number <strong>of</strong> levels. At the outset, the recognition <strong>of</strong> the
rights <strong>of</strong> women to a safe working environment free from sexual harassment and
abuse is an important acknowledgment <strong>of</strong> the public lives <strong>of</strong> women. The active
approach <strong>of</strong> the Court to utilise the Constitution to step in to protect those rights,
in the absence <strong>of</strong> any legislative protection, is an extraordinary example <strong>of</strong> judicial
activism in favour <strong>of</strong> the rights <strong>of</strong> women. Further, the acknowledgement <strong>of</strong> CEDAW,
the World Conference on Women in Bejiing and the use <strong>of</strong> the Constitution to enforce
the provisions and principles <strong>of</strong> the international norms represented within them, in
favour <strong>of</strong> the rights <strong>of</strong> women, is a positive indication <strong>of</strong> the courts willingness to
embrace equality for women.
50

General Recommendation 19
Violence Against Women
Sexual Violence
Chairman, Railway Board and others (Appellants) v Mrs. Chandrima
Das and others (Respondents)
AIR 2000 Supreme Court 988
Supreme Court <strong>of</strong> India
28 January 2000
S. Saghir Ahmad, R. P. Sethi JJ
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Constitution <strong>of</strong> India 1949, Articles 21, 226;
International Covenant on Social Economic and Cultural Rights 1966;
International Covenant on Civil and Political Rights 1966;
Declaration on the Elimination <strong>of</strong> Violence Against Women 1993;
Universal Declaration <strong>of</strong> Human Rights 1948, Preamble, Articles 1, 2, 3, 5, 7.
This case considers whether compensatory redress can be awarded to a member
<strong>of</strong> the public under the Constitution <strong>of</strong> India 1949 [“the Constitution”] as a public
law remedy; whether fundamental rights under the Constitution extend to foreign
nationals; who has legal standing to bring actions under the Constitution in the
public interest; and whether the government can be vicariously liable for the
criminal acts <strong>of</strong> its employees.
Hanuffa Khatoon, a Bangladeshi national, while waiting for a connecting train,
was lured by railway employees to a hostel at Howrah Station, Calcutta, where she
was brutally gang raped. Subsequently, Mrs Chandrima Das, a practising advocate
<strong>of</strong> the Calcutta High Court, filed a petition under Article 226 <strong>of</strong> the Constitution
against the Chairman <strong>of</strong> the Railway Board and others, claiming compensation for
the victim. The High Court awarded Hanuffa Khatoon the sum <strong>of</strong> Rs. 10 lakh (US
$ 20,833) compensation on the basis that the Railway Board was vicariously liable
for the rapes perpetrated by its employees in buildings belonging to the railways.
The Railway Board appealed the decision to the Supreme Court, arguing that they should
51
CEDAW
India

Chairman, Railway Board and others v Mrs. Chandrima Das and others (India)
not be liable to pay compensation to the victim for a variety <strong>of</strong> reasons. They argued that
the victim was not an Indian national and therefore not protected by the Constitution; that
the rapes were acts <strong>of</strong> individual persons who alone should be liable to pay compensation
and that neither the Union <strong>of</strong> India nor the Railway Board should be vicariously liable for
their acts in these circumstances; that the High Court did not have the jurisdiction to award
damages under Article 226 <strong>of</strong> the Constitution as any compensatory remedy can only be
awarded in private law not public law proceedings; and finally that Mrs Chandrima Das,
who brought the action on behalf <strong>of</strong> the victim, did not have legal standing as there was
nothing personal to her involved in the petition.
The respondent argued that rape was a not a violation <strong>of</strong> an ordinary right but a
fundamental right guaranteed by Article 21 <strong>of</strong> the Constitution as established by precedent
law. The respondent relied on precedent to argue that the concept <strong>of</strong> legal standing had
been significantly expanded by the courts, thus allowing public-spirited persons to bring
actions in the public interest.
Decision
The Supreme Court held that a private law remedy (i.e. compensation for personal
injury) is available for an action brought in public law when the injury is inflicted by
government agents and involves the violation <strong>of</strong> the fundamental right to life with human
dignity under Article 21 <strong>of</strong> the Constitution. The Court held that rape is a violation <strong>of</strong> a
fundamental right and not an ordinary right and accordingly a public law remedy was
appropriate in this case. This remedy was available even though a suit for damages could
also have been filed under private law.
The Court held that Mrs Chandrima Das did have legal standing to bring the action
on behalf <strong>of</strong> the victim. It held that Indian constitutional jurisprudence has broadened
the principle <strong>of</strong> locus standi to allow public-spirited persons to act in matters <strong>of</strong> public
interest. As this case involved criminal actions by railway employees which resulted in the
violation <strong>of</strong> the victim’s fundamental rights, it therefore qualified as a petition in the public
interest. Further, as Mrs Chandrima Das had filed the petition seeking other reliefs such as
the eradication <strong>of</strong> anti-social criminal activities at Howrah Railway Station, the true nature
<strong>of</strong> the petition was that <strong>of</strong> one filed in the public interest. The Court also held that as there
was nothing personal to her involved in the proceedings, the petition was valid.
The Court held that Hanuffa Khatoon was entitled to compensation despite the fact that she
was not an Indian citizen. It referred to a number <strong>of</strong> international conventions that vest in
a “person” certain fundamental rights regardless <strong>of</strong> nationality. The Universal Declaration
<strong>of</strong> Human Rights 1948, [“UDHR”] protects basic human rights for all persons in its
Preamble and in Articles 1, 2, 3, 5 and 7. Article 2, in particular, ensures the entitlement <strong>of</strong>
rights and freedoms guaranteed by the UDHR without any distinction as to race, colour,
sex, language, religion, political or other opinion, national or social origin, property,
52

Chairman, Railway Board and others v Mrs. Chandrima Das and others (India)
birth or other status, and states that no distinction can be made on the basis <strong>of</strong> political,
jurisdictional or international status <strong>of</strong> the country or territory to which a person belongs in
claiming these entitlements. The Court also held that the Constitution supported a finding
in favour <strong>of</strong> Hanuffa Khatoon. Although some fundamental rights under the Constitution
are only available to citizens, other rights including equality before the law, right to life
and personal liberty, and protection against arbitrary arrest and detention, are available to
all persons. Rape has been held to be a violation <strong>of</strong> the right to live with human dignity
under Article 21 <strong>of</strong> the Constitution. The Court looked to precedents and judicial colloquia
which confirm the duty <strong>of</strong> the judiciary to apply international human rights standards
generally, as well as those specifically in relation to women e.g. the Declaration on the
Elimination <strong>of</strong> Violence Against Women 1993 in the interpretation <strong>of</strong> national constitutions.
The judicial colloquia referred to include the Bangalore Principles <strong>of</strong> 1988, the Zimbabwe
Colloquia <strong>of</strong> 1994, the Hong Kong Colloquia <strong>of</strong> 1996 and the Guyana Colloquia <strong>of</strong> 1997,
which encourage the judiciary to apply international laws domestically. On the basis <strong>of</strong>
both international conventions and the Constitution, the victim was found to be entitled to
redress despite the fact that she was not an Indian citizen.
Finally, the Court held that the Central Government was vicariously liable for the actions
<strong>of</strong> the railway employees. Although the Government can claim sovereign immunity
protecting it from liability when exercising the sovereign power <strong>of</strong> the state, in a welfare
state this does not include functions that relate to education, or the commercial, social,
economic, political and even marital sphere. The management <strong>of</strong> railways and the
establishment <strong>of</strong> railway guesthouses is a commercial activity and not related to the
sovereign power <strong>of</strong> the state. Accordingly sovereign immunity could not be claimed
and the Railway Board, in line with precedent, was held to be vicariously liable for the
actions <strong>of</strong> its employees.
Commentary
This case is positive for women in a number <strong>of</strong> ways. At the outset the outcome <strong>of</strong> the
case ensures compensatory redress for a woman raped by government employees. The
use <strong>of</strong> the Constitution as a mechanism to provide that compensation illustrates the
diverse instrumental capacity that the judiciary is prepared to give the Constitution to
protect the rights <strong>of</strong> women. The Court referred favourably to many precedents and to
a variety <strong>of</strong> international conventions such as the Declaration on the Elimination <strong>of</strong>
Violence Against Women 1993, indicating its willingness to be guided by international
standards in relation to the equality <strong>of</strong> women. It is also positive that the Court refused
to excuse the Railway Board from liability. Although government bodies are ordinarily
able to claim a sovereign immunity for the actions <strong>of</strong> employees the Court held that
there are a number <strong>of</strong> exceptions to this position including commercial activity. The
courts are, in effect, directly imposing the rule <strong>of</strong> law, holding the government equally
liable with other members <strong>of</strong> the community.
53

CEDAW
Pacific Islands: Fiji
General Recommendation 19
Violence Against Women
Sexual Violence
State (Prosecution) v Filipe Bechu (Defendant)
Criminal <strong>Case</strong> No. 79/94 (unreported)
Magistrates Court, Levuka
2 December 1999
V. D. Nadakuitavuki
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Constitution <strong>of</strong> Fiji, Article 43(2);
Criminal Procedure Code, Section 210;
Penal Code, Sections 149, 150;
Sexual Offences Act 1956, Section 2(2);
Sexual Offences (Amendment) Act 1976 (UK), Section 1(2).
This case considers the meaning <strong>of</strong> consent in rape cases under the Fijian Penal
Code. In determining what constitutes consent, the Court considered the role <strong>of</strong>
international conventions that protect the rights <strong>of</strong> women such as CEDAW.
On the evening <strong>of</strong> 13 August 1994 the complainant attended a village dance. She
left the dance to return home in a minibus. The defendant, Filipe Bechu who was a
former boyfriend <strong>of</strong> the complainant, was also in the minibus. The complainant asked
the driver <strong>of</strong> the minibus to drop her home but he, at the request <strong>of</strong> the defendant,
dropped both the defendant and the complainant at an isolated spot. The complainant
alleged that the defendant physically assaulted and raped her.
The complainant reported the incident to the police later that night. The medical
examination showed no physical injury to her genitalia or any evidence <strong>of</strong> sperm in
the vaginal swab. However, there were injuries to her left chest, left forehead and
under her eye, which were consistent with the forceful use <strong>of</strong> a hard blunt object.
The defendant admitted that he had assaulted the complainant and had engaged in
sexual intercourse with her, but maintained that his actions did not amount to rape
for several reasons. He argued that on previous occasions he had had sexual relations
54

with the complainant. He also stated that he was jealous because she was currently
involved with other men. Finally, the defendant argued he was very drunk at the time
and that due to a combination <strong>of</strong> the above reasons he was not guilty. The complainant
argued that she had not consented to sexual intercourse with the defendant.
Decision
The Court found the defendant guilty <strong>of</strong> rape on the basis that the complainant had not
consented to intercourse. The Court looked at section 149 <strong>of</strong> the Penal Code which states
that consent forcibly obtained, does not constitute consent. It was not relevant that the
complainant was his former girlfriend. The Court found that the defendant was reckless
in his drunken state as he had proceeded to have intercourse with the complainant either
knowing she was not consenting, or not caring whether she had consented or not. The
defendant was sentenced to five years imprisonment.
The Court also stated in support <strong>of</strong> its finding that women are men’s equal and must
not be discriminated against on the basis <strong>of</strong> gender. The Court stated that men should
be aware <strong>of</strong> the provisions <strong>of</strong> CEDAW, and that it is the State’s responsibility to
ensure that all forms <strong>of</strong> discrimination against women are eliminated. The role <strong>of</strong>
the court is to oversee this obligation in line with Article 43(2) <strong>of</strong> the Constitution
<strong>of</strong> Fiji 1997 which states that courts must have regard to the public international
law applicable to the protection <strong>of</strong> the rights as set out in the fundamental rights
provisions. The Court reiterated that the belief that women were inferior to men
or part <strong>of</strong> their personal property to be discarded or treated unfairly at will, is now
obsolete and no longer accepted by Fijian society.
Commentary
This was the first decision in Fiji to cite CEDAW. A willingness to adopt international
conventions that protect the rights <strong>of</strong> women is a step forward for women in the
broader context <strong>of</strong> Fijian society.
Further, the statements by the Magistrate on the treatment <strong>of</strong> women in Fiji including
“men should be aware <strong>of</strong> CEDAW” set a positive standard for the treatment <strong>of</strong> women
in Fiji. In the Fijian cultural context women have not historically been considered
equal in status to men and certain traditional practices purport to categorise women
as chattels or the property <strong>of</strong> men to be used at will.
This decision sets a precedent for the application <strong>of</strong> international standards for
women in criminal rape cases. This is particularly significant since the majority <strong>of</strong>
rape cases are heard in the lower Magistrates courts. The statements about the status
<strong>of</strong> women made by the judge signifies a new commitment to uphold women’s rights
and to change the perception <strong>of</strong> the status <strong>of</strong> women in Fiji. This case illustrates
changing norms, which are more positive for women in Fijian society.
55
State v Filipe Bechu (Pacific Islands: Fiji)

CEDAW
Pacific Islands: Kiribati
General Recommendation 19
Violence Against Women
Sexual Violence
The Republic <strong>of</strong> Kiribati (Prosecution) v Tieta Timiti & Rabaere
Robuti (Defendants)
HCCrC 43/97
High Court <strong>of</strong> Kiribati
17 August 1998
Lussick CJ
<strong>Law</strong>s and International Instruments Considered
CEDAW 1979;
Kiribati Constitution 1979, Sections 3, 15;
Kiribati Penal Code Cap 67, Section 128.
This case considers whether the rule <strong>of</strong> corroboration in Kiribati rape law discriminates
against women. The Court was asked to consider whether the corroboration rule is
contrary to the provisions <strong>of</strong> the Kiribati Constitution 1979 [“the Constitution”] and
international conventions such as CEDAW.
The complainant, a food seller at the local market, was owed money by the two
defendants, Tieta Timiti and Rabaere Robuti. On the day <strong>of</strong> the alleged <strong>of</strong>fence the
complainant went to collect the debt at their place <strong>of</strong> work. She met the first <strong>of</strong> the
two defendants who told her to come back later. When she returned she was dragged
into a room by the defendants and several others. She was held down whilst the
defendants had sexual intercourse with her. She reported the matter to the police,
identifying the two defendants.
The defendants were charged with rape as per section 128 <strong>of</strong> the Kiribati Penal Code
Cap 67. They pleaded not guilty. Although the defendants admitted to having sexual
intercourse with the complainant at the alleged time, they denied raping her on the
basis that she had consented to intercourse.
The prosecution argued that the complainant did not consent to sexual intercourse
and that she was a credible witness despite having forgotten some <strong>of</strong> the details <strong>of</strong>
56

The Republic <strong>of</strong> Kiribati v Tieta Timiti and Rabaere Robuti (Pacific Islands: Kiribati)
the incident. It further argued that her evidence should be believed because it was
corroborated by three witnesses. The prosecution also presented a second argument
claiming that the requirement for corroboration violated the rights <strong>of</strong> women under
sections 3 and 15 <strong>of</strong> the Constitution. Section 3 <strong>of</strong> the Constitution guarantees
all citizens equal protection <strong>of</strong> the law and section 15 provides all citizens with
protection from discrimination. The prosecution stated that although section 15 does
not explicitly identify sex as a ground <strong>of</strong> discrimination, it ought to be read into the
legislation. The prosecution argued that the Court should follow this interpretation
as it is supported by the principles formulated in CEDAW and other international
instruments that protect the rights <strong>of</strong> women.
The defendants argued that the complainant’s evidence that she did not consent
was unreliable because she suffered an illness that caused her to imagine things
and disturbed her reasoning. Further, they argued that as some <strong>of</strong> the corroborative
evidence presented by the prosecution was contradictory, her evidence had not been
corroborated. Therefore, the defendants argued the judge was obliged to warn himself
<strong>of</strong> the danger <strong>of</strong> convicting on uncorroborated evidence. This rule, it was further
argued, was not discriminatory because it applied to both sexes, notwithstanding that
the majority <strong>of</strong> rape victims are women.
Decision
The Court found the defendants guilty <strong>of</strong> rape. The judge believed the evidence given
by the complainant that she had not consented to intercourse. He also held that the
explanations given by the defendants that the complainant had consented could not
be reconciled with the evidence that the complainant, as soon as she had recovered,
had reported the matter to the police. The judge also noted that she had maintained
her credibility and her version <strong>of</strong> events despite a long cross-examination. He
accepted the evidence <strong>of</strong> the witnesses who corroborated the complainant’s version
<strong>of</strong> events. It was illogical according to the judge, that she would have willingly
agreed to intercourse with both men in such public circumstances especially when it
was clear she was very distressed.
The Court also held that the rule <strong>of</strong> corroboration was not relevant to this case because
it is a requirement in rape only if the credibility <strong>of</strong> the complainant’s evidence is
in question. Since the Court believed the evidence <strong>of</strong> the complainant there was
no requirement for corroboration or warning to either judge or jury. Therefore, the
issue <strong>of</strong> whether the requirement for corroboration is discriminatory and in breach <strong>of</strong>
international conventions was held not to be relevant. The judge commented that in
his opinion regardless <strong>of</strong> whether corroboration is present, the fundamental issue is
whether the complainant is believed. If the victim is not believed then the accused will
be acquitted, regardless <strong>of</strong> the presence <strong>of</strong> corroborating evidence. Both defendants
were convicted and sentenced to imprisonment for seven years.
57

The Republic <strong>of</strong> Kiribati v Tieta Timiti & Rabaere Robuti (Pacific Islands: Kiribati)
Commentary
Any rape decision in favour <strong>of</strong> a complainant is a positive outcome for women
in general. In this case the judge believed the evidence <strong>of</strong> the complainant and
disbelieved the evidence <strong>of</strong> the two convicted men. The judge was prepared to
consider the issue <strong>of</strong> consent from the point <strong>of</strong> view <strong>of</strong> the complainant.
This decision however falls short in that it did not change the rule <strong>of</strong> corroboration,
or advance women’s rights per se. The Court was presented with the opportunity
to consider the claim that the requirement <strong>of</strong> corroboration is discriminatory
against women under international law, particularly CEDAW. The Court failed to
recognise that as rape is primarily perpetrated against women, the requirement for
corroboration in rape may amount to indirect discrimination. Indirect discrimination
in some jurisdictions means that the application <strong>of</strong> a rule appears to be neutral but
in practice impacts to the detriment <strong>of</strong> a particular group. Despite this, there are a
number <strong>of</strong> positive aspects to the case.
First, the introduction <strong>of</strong> CEDAW by the prosecution and the attempt to persuade the
Court to apply it illustrates the willingness <strong>of</strong> lawyers to use international human
rights law in the Kiribati courts. Although the judge was unwilling to rule that the
corroboration rule itself is discriminatory under CEDAW and other international
conventions that protect the rights <strong>of</strong> women, the judge did acknowledge the
relevance <strong>of</strong> international law to Kiribati courts. This is a significant development
considering Kiribati is yet to ratify CEDAW.
Second, the finding <strong>of</strong> the judge that corroboration was not necessary or <strong>of</strong> any
significance if the complainant is credible lessens the impact <strong>of</strong> the corroboration
rule. The corroboration rule requirement undermines the credibility <strong>of</strong> rape victims
and imposes a higher threshold in proving that the rape occurred. The judge held that
when evidence capable <strong>of</strong> providing corroboration <strong>of</strong> the complainant’s testimony
exists, as it did in this case, the primary issue is whether in light <strong>of</strong> that evidence
the complainant is believed or disbelieved. Consequently the requirement for
corroboration was given a reduced importance in this case.
Finally, the judgment is also significant in that it is a direct result <strong>of</strong> human rights
training that is provided to lawyers in Kiribati by the Pacific Regional Human Rights
Education Resource Team and Asia Pacific Forum on Women <strong>Law</strong> and Development
[“APWLD”]. The Public Prosecutor who incorporated CEDAW into his arguments
had attended Feminist Legal Theory and Practice training in Fiji which was cohosted
by APWLD, the Fiji Women’s Rights Movement and the Pacific Regional
Human Rights Education Resource Team.
58

Part II
Constitutional <strong>Law</strong> <strong>Case</strong>s

Customary <strong>Law</strong>
Sex Roles and Stereotypes/Freedom <strong>of</strong> Movement
Public Prosecutor (Plaintiff) v Walter Kota, Chief Jimmy Kawai,
Chief Cyril Wis Menesu, Chief Andrew Koau, Chief Ringimanu,
Joseph Nayo, Charles Narun Kauiata, Thomas Nasup Nasup Taura,
Taura,
Barbara Teku Mathias, Marie Salome Morrison, Mathias Teku
(Defendants)
Vanuatu <strong>Law</strong> Reports, Volume 2, 1989-94, pp. 661-665
Supreme Court <strong>of</strong> Vanuatu
31 August 1993
Downing J
<strong>Law</strong>s Considered
Constitution <strong>of</strong> the Republic <strong>of</strong> Vanuatu, Article 5;
Penal Code Cap. 135, Sections 12, 35, 105(b).
This case deals with the conflict between customary law, criminal law and the
constitutional rights <strong>of</strong> Vanuatu women to liberty and freedom <strong>of</strong> movement. The
case was brought in the criminal law jurisdiction for charges <strong>of</strong> inciting to commit
kidnapping and kidnapping under sections 35 and 105(b) <strong>of</strong> the Penal Code. The
Court considered whether a defence <strong>of</strong> custom could be sustained in relation to these
charges.
The complainant, Marie Kota, ceased living with her husband Walter Kota after
problems in their marriage. On 31 July 1993, she had a dispute with her estranged
husband at a nightclub in Port Vila. Marie and Walter Kota were originally from
the outer island <strong>of</strong> Tanna, traditionally the most patriarchal island in Vanuatu. The
dispute attracted the attention <strong>of</strong> the community from Tanna who were living in
the capital, Port Vila. A meeting was called by two chiefs <strong>of</strong> the community to
try to resolve the dispute between Marie Kota and her husband and to promote a
reconciliation between them.
The police were consulted by the defendants and involved in forcibly taking Marie
Kota to the meeting. Marie Kota stated at the meeting that she did not wish to reconcile
with her husband and that she wanted a divorce, as he had beaten her. Nevertheless,
59
CONSTITUTIONAL LAW
Pacific Islands: Vanuatu

Public Prosecutor v Walter Kota and others (Pacific Islands: Vanuatu)
the decision <strong>of</strong> the chiefs was that she was to return to Tanna immediately and rejoin
her husband who was granted two weeks to organise his return to the island.
The defendants forcibly took Marie Kota back to the outer island <strong>of</strong> Tanna. She
stayed for a week and then fled to Port Vila where she reported the matter to
the police, with the assistance <strong>of</strong> the Women Against Violence Against Women
Association. Walter Kota, four police <strong>of</strong>ficers and six others were charged with
inciting to commit kidnapping under sections 35 and 105(b) <strong>of</strong> the Penal Code. One
<strong>of</strong> the defendnts, Mathias Teku, was also charged with kidnapping for his role in
physically removing Marie Kota and placing her on a boat to Tanna, as ordered by
the chiefs at the meeting.
In attempting to establish that the defendants had incited to commit kidnapping, the
prosecution submitted that Marie Kota’s constitutional right to freedom <strong>of</strong> movement
had been violated when she was forced to immediately return to Tanna.
The defendants argued that the defence <strong>of</strong> “a mistake <strong>of</strong> facts” under section 12 <strong>of</strong>
the Penal Code applied to their situation. Section 12 states that “a mistake <strong>of</strong> facts
shall be a defence to a criminal charge if it consists <strong>of</strong> a genuine and reasonable belief
in any fact or circumstances which, had it existed, would have rendered the conduct
<strong>of</strong> the accused innocent.” They argued that they had held a genuine and reasonable
belief that their actions did not amount to a criminal act. The defendants argued
that custom had warranted their actions and that their conduct was a result <strong>of</strong> their
genuine desire to help Walter and Marie Kota reconcile.
Decision
The defendants were convicted <strong>of</strong> the charge <strong>of</strong> inciting to commit kidnapping
and sentenced to 12 months imprisonment, which was suspended for 12 months.
Mathias Teku was found guilty <strong>of</strong> kidnapping and sentenced to two and a half years
imprisonment, suspended for two and a half years provided that he exhibited good
behaviour during that period. Each defendant was fined 40,000 vatu. The Court
also awarded compensation <strong>of</strong> 29,600 vatu in special damages and 150,000 vatu in
general damages to Marie Kota.
The Court found that the charges against the defendants were proved as Marie Kota
was “forced” to comply with the decisions <strong>of</strong> the chiefs. They held that compelling her
to attend the meeting against her will, deciding that she should return to Tanna and then
taking her there against her will, constituted force. “Force” refers not only to physical
force, but to coercion and threats <strong>of</strong> force. Further, the Court found that the defence <strong>of</strong>
a mistake <strong>of</strong> fact was not made out by the defendants. The Court stated that if anything,
there had been a mistake <strong>of</strong> law and the effective custom, but not <strong>of</strong> fact.
60

Public Prosecutor v Walter Kota and others (Pacific Islands: Vanuatu)
The Court also held that customary law is subject to the Constitution <strong>of</strong> the Republic
<strong>of</strong> Vanuatu and other statutory legislation. Further, the fundamental rights enshrined
in the Constitution apply to every person, irrespective <strong>of</strong> gender. Although custom
may have dictated in the past that women could be treated as property, any such
action was clearly now in breach <strong>of</strong> the Constitution. Accordingly the actions <strong>of</strong>
the defendants were found by the Court to be in breach <strong>of</strong> Article 5(1)(b) <strong>of</strong> the
Constitution which provides for the liberty <strong>of</strong> people and Article 5(1)(i) which
provides for freedom <strong>of</strong> movement.
Commentary
This case reinforced other similar decisions that constitutional and statutory
provisions in the Constitution take precedence over customary law. This decision is
important for women in Vanuatu since it challenges Vanuatu customs and redefines
the status <strong>of</strong> women. Judge Downing stated that, “Article 5 <strong>of</strong> the Constitution
makes it quite clear that men are to be treated the same as women, and women are to
be treated the same as men. All people in Vanuatu are equal and whilst the custom
may have been that women were to be treated or could be treated as property, and
could be directed to do things by men, whether those men are their husbands or
chiefs, they cannot be discriminated against under the Constitution.” The statement
<strong>of</strong> the judge indicates that the rights <strong>of</strong> Vanuatu women are changing, giving women
the freedom to make personal decisions about their lives.
The Court’s analysis <strong>of</strong> the word “force” in the Penal Code as referring not only
to physical force, but to coercion and threats <strong>of</strong> force, illustrates a much broader
understanding <strong>of</strong> the imbalances that may be present in relationships between men
and women. Whilst the Court appreciated the role <strong>of</strong> the chiefs in trying to resolve
a dispute, it noted that their actions were biased as they were based on a male
point <strong>of</strong> view. The Court’s approach throughout the case was sensitive to gender
inequalities.
61

CONSTITUTIONAL LAW
Nepal
Nationality and Citizenship
Meera Gurung (Petitioner) v Her Majesty’s Government, Department
<strong>of</strong> Central Immigration, Ministry <strong>of</strong> Home Affairs (Respondents)
Decision No. 4858 <strong>of</strong> 1994
Supreme Court (Full Bench)
Hargorvind Singh Pradha, Laxman Prasad Angel JJ
<strong>Law</strong>s Considered
Constitution <strong>of</strong> Nepal 1990, Article 11;
Regulation Relating to Foreigners, Rules 14(3) and 14(4).
This case examines discriminatory standards in Nepalese immigration law. The Court
considered whether regulations which treat Nepalese men marrying non-nationals
differently to Nepalese women marrying non-nationals were in breach <strong>of</strong> the
Constitution <strong>of</strong> Nepal 1990 [“the Constitution”].
The petitioner, Meera Gurung, a Nepalese woman, married a foreigner and intended
to settle in Nepal with their child. Meera Gurung’s husband applied for a work visa
and a residential visa. The Department <strong>of</strong> Immigration denied both applications on
the basis <strong>of</strong> the Regulation Relating to Foreigners [“the Regulation”]. The Regulation
states that when a Nepalese man marries a foreign woman, she is automatically
entitled to a non-tourist visa for the duration <strong>of</strong> the marriage with an additional three
months if the marriage should end. However, when a Nepalese woman marries a
foreign man, he is only entitled to a non-tourist visa for a maximum <strong>of</strong> four months
in every year and this visa must be renewed each year. The Ministry <strong>of</strong> Home Affairs
refused to hear any complaint on this matter. The petitioner began court proceedings
to declare the Regulation invalid.
The petitioner argued that the Regulation was contrary to the equality provisions contained
in Article 11 <strong>of</strong> the Constitution as it was discriminatory on the ground <strong>of</strong> sex.
The respondents argued that the Department <strong>of</strong> Immigration was the proper place for
the petitioner to lodge her complaint and consequently the Court had no jurisdiction to
hear the matter. Further, the respondents argued that as Article 11 <strong>of</strong> the Constitution
applied only to Nepalese citizens, and not to foreign husbands, the challenge had no
substance.
62

Meera Gurung v Her Majesty’s Government, Department <strong>of</strong> Central Immigration, Ministry <strong>of</strong> Home Affairs (Nepal)
Decision
This case was initially heard by two judges <strong>of</strong> the Supreme Court. The two judges
each came to a different conclusion. Justice Pradha held that the Regulation did
violate Article 11 <strong>of</strong> the Constitution by discriminating against the petitioner on
the basis <strong>of</strong> sex. He held that a residential visa should be issued to the petitioner’s
husband. Justice Angel held that the Regulation was not discriminatory because
inequality can only exist between people in similar situations, or between members
<strong>of</strong> the same group. He held that because women and men do not belong to the same
group, there could not have been unequal treatment. He concluded that since the
husband’s visa had already expired and the petitioner had not specifically indicated
what type <strong>of</strong> visa was sought, no visa should be issued. Because the two judges came
to different conclusions, the case was subsequently heard by the Full Bench <strong>of</strong> the
Supreme Court.
The Full Bench <strong>of</strong> the Supreme Court held that the Regulation was discriminatory
on the basis <strong>of</strong> sex and thus breached Article 11 <strong>of</strong> the Constitution. The Court stated
that although the law may appear to discriminate against the husband, it in fact
discriminates against Nepalese women who choose to marry foreigners. It stated that
the Regulation valued men’s marriages more which constituted unequal treatment.
The Court directed the Department <strong>of</strong> Immigration to reconsider the husband’s visa
application and to create new rules for this situation.
The Court distinguished this case from Mr Benjamin Peter and Mrs Mina Kumari
Tilija Peter v Ministry <strong>of</strong> Home Affairs, Department <strong>of</strong> Immigration (1992 Nepal
<strong>Law</strong> Magazine 2049). It stated that the case had failed because the correct procedure
had not been followed in the petitioner’s application for a visa. In the present case
there were no similar circumstances.
Commentary
This decision was a victory for women’s rights. Not only was an appropriate remedy
given to the petitioner and her family, but international standards and norms (as
adopted by the Constitution) were successfully used to bring about a change in the
domestic law.
The case also stands for the proposition that if advocates are determined and use
well constructed arguments, ultimately they can prevail. In reality, there was no
factual difference between this case and the Benjamin Peter case and this decision
is therefore progressive in terms <strong>of</strong> understanding and applying the constitutional
protection <strong>of</strong> equal rights.
63

CONSTITUTIONAL LAW
Japan
Employment
Houshasen Eikyou Kenkyujo <strong>Case</strong>
Roudou Keizai Hanrei Sokuhou No. 1394, p. 3
Supreme Court, 1 st Small Bench
28 May 1990
<strong>Law</strong>s Considered
Civil Code, Article 90;
Constitution <strong>of</strong> Japan 1949, Article 14;
Equal Employment Opportunity <strong>Law</strong>, Article 11.2;
Labour Standards <strong>Law</strong>, Articles 3, 4.
This case considered whether different mandatory retirement ages for men and
women constitute sex discrimination and whether it breaches Article 14 <strong>of</strong> the
Constitution <strong>of</strong> Japan 1949.
The company with which the petitioner was employed had a policy that set different
mandatory retirement ages based on sex. The retirement age was 62 years for men
and 57 for women. The petitioner argued that by setting different retirement ages,
the company was discriminating against women and the policy should therefore be
declared invalid.
Decision
The Court held that by setting different retirement ages for men and women the
company did discriminate against women. Its policy was therefore unlawful. The
Court ordered that immediate steps be taken by the company to correct its policy.
Further, it held that implementing a gradual rather than immediate change towards
an equal retirement age would also be unlawful.
Commentary
This case is significant because the Court recognised a woman’s right to a livelihood
on equal terms to men. By stating that the company must take immediate action,
the Court set a high standard for implementing the changes that enable women to
achieve equality in employment. This standard could be used by advocates as an
example <strong>of</strong> the role <strong>of</strong> courts in recognising and enforcing women’s equality in the
workplace and in general.
64

Employment
Iwate Bank <strong>Case</strong>
The Hanreijihou, No. 1410 pp. 37-43
Sendai High Court
10 January 1992
<strong>Law</strong>s Considered
Civil Code, Articles 1, 90;
Constitution <strong>of</strong> Japan 1949, Article 14;
Labour Standards <strong>Law</strong>, Articles 4, 11.
This case deals with the discriminatory aspects <strong>of</strong> a worker’s wage agreement
between a bank and its employees. The Court considered whether the payment <strong>of</strong>
different household and family allowances to male and female workers constitutes
sex discrimination and whether it was in breach <strong>of</strong> the Labour Standards <strong>Law</strong> and the
Constitution <strong>of</strong> Japan 1949 [“the Constitution”].
X, the mother <strong>of</strong> one child, worked as a bank clerk for the Iwate Bank [“the Bank”].
Since 1976 she had received both a family allowance and a household allowance on
the basis that she was the head <strong>of</strong> her household. The worker’s wage agreement <strong>of</strong>
the Bank made provision for the allowances to be paid to “a clerk who is a head <strong>of</strong>
household”. This was defined as a clerk who was “supporting the household with his
or her income”. However, the agreement also stated that if the clerk was a female
and her husband earned more than the maximum income permitted to qualify for a
family support tax deduction the allowances would not be paid. By contrast, for a
male employee, the allowances would be paid regardless <strong>of</strong> the income <strong>of</strong> his wife.
In 1981, when X’s husband received income above the limit for the tax deduction, the
Bank stopped paying X the allowances. X began court proceedings claiming that the
worker’s wage agreement discriminated against women, and claimed a back payment
<strong>of</strong> the allowances. Her claim in the Morioka District Court was successful. The Iwate
Bank appealed to the Sendai High Court.
X argued that the family and household allowances were a “wage” within the meaning <strong>of</strong>
the Labor Standards <strong>Law</strong> as they were an integral part <strong>of</strong> the payment for an employee’s
work. The allowances should therefore be governed by Article 4 <strong>of</strong> the Labor Standards
<strong>Law</strong> which provides for the equal treatment <strong>of</strong> men and women. X argued that the
65
CONSTITUTIONAL LAW
Japan

Iwate Bank <strong>Case</strong> (Japan)
provisions <strong>of</strong> the worker’s wage agreement were discriminatory on the basis <strong>of</strong> sex because
when a male was head <strong>of</strong> the household he was entitled to a family allowance regardless
<strong>of</strong> his wife’s earnings. Women however, were only entitled if their heir husbands earned more
than the maximum income permitted to qualify for a family support tax deduction. . X also
argued that the provision was unlawful because it was contrary to Article 14 <strong>of</strong> the
Constitution, which protects the equal rights <strong>of</strong> men and women.
The Bank argued that the family and household allowances were not a “wage” because
the allowances were not given in exchange for labour, but instead to provide livelihood
assistance for families. The allowance was intended for a household’s main income provider
and supervisor. The Bank argued that if both the husband and the wife were employed, it
was socially accepted to recognise the man as the head <strong>of</strong> the household and the different
conditions for men and women were acceptable because they accorded with social norms.
Further, the Bank argued that the provisions <strong>of</strong> the worker’s wage agreement was not subject
to the Constitution because it was a private agreement between the Bank and its employees.
Decision
The Court held that the worker’s wage agreement discriminated against female
employees and declared the relevant provisions unlawful. The Court ordered the Iwate
Bank to pay X the family allowances that it had withheld from her.
The Court held that the household and family allowances were a “wage” within the
meaning <strong>of</strong> the Labor Standards <strong>Law</strong>. The Bank did not therefore have a discretion in
relation to the allowances.The Court stated that when determining whether the allowances
were payable, the main factor should be whether or not that person is the household’s main
income provider, rather than whether the person is the “head” <strong>of</strong> the household. In this case,
X was the main income provider for the family and therefore entitled to the allowances.
The Court held that the equality <strong>of</strong> men and women must be implemented, even in
private arrangements such as the Bank’s worker’s wage agreement. The Court stated
that it is necessary to consider social norms only in terms <strong>of</strong> their potential for achieving
positive changes in society, such as moving towards the equality <strong>of</strong> men and women.
Commentary
By the time <strong>of</strong> this judgment, many companies had already begun reviewing their
regulations relating to allowances and wages in light <strong>of</strong> equality laws. This case,
however, makes a strong statement in relation to the use <strong>of</strong> social norms in equality
cases, which may be useful in other discrimination cases. There was no reference to
CEDAW in this case because the Bank had stopped paying the allowances to X before
Japan ratified the treaty. This case is an example <strong>of</strong> the way in which terms such as
“head <strong>of</strong> household” may discriminate against women, and also a good example <strong>of</strong>
the type <strong>of</strong> argument that may be used to challenge such terminology in future.
66

Employment
Kenwood <strong>Case</strong>
Roudouhanrei No. 635, p. 11
Tokyo High Court
28 September 1995
<strong>Law</strong>s Considered
Labour Standards <strong>Law</strong>, Chapter 2;
<strong>Law</strong> Concerning the Promotion <strong>of</strong> Equal Opportunity and Treatment Between Men
and Women in Employment and Other Welfare Measures for Women Workers, Article
28.1.
This case considered whether employers have a duty to consider the childcare
responsibilities <strong>of</strong> employees in their decision making processes.
The company for which the petitioner worked ordered her to transfer locations which
made it difficult for her to take her child to and from daycare. The petitioner argued
that by asking her to transfer to a new location, the company violated its duty to the
petitioner to consider her childcare responsibilities.
Decision
The Court dismissed the petitioner’s claim. The Court recognised that an employer
does have a duty to consider its employees’ responsibilities in raising children.
However, the Court found that the employer is not obliged to take into consideration
the inconvenience to the employee <strong>of</strong> transporting children long distances to and
from daycare, when making decisions about transfers.
Commentary
This case is noteworthy for holding that it is an employer’s duty to consider the
childcare obligations <strong>of</strong> employees. It impacts on women because they are <strong>of</strong>ten
responsible for childcare, even when employed. The Court held, however, that
when making transfer decisions, a company’s duty did not extend to taking into
consideration an employee’s inconvenience in transporting children to daycare.
Presumably in this case, the Court felt that the interests <strong>of</strong> the company in transferring
the petitioner outweighed her need for convenient access to daycare for her child.
67
CONSTITUTIONAL LAW
Japan

CONSTITUTIONAL LAW
Republic <strong>of</strong> Korea
Employment
Korea Electric Power Corporation (Appellant) v Commissioner <strong>of</strong> the
Central Labour Commission (Respondent)
94 Nu13589
Supreme Court
23 August 1996
<strong>Law</strong>s Considered
Gender Equal Employment <strong>Law</strong>, Articles 2.2, 8;
Labour Standard <strong>Law</strong>, Article 5.
This case examines mandatory retirement ages and whether a regulation requiring
telephone operators to retire earlier than other workers amounts to gender
discrimination, since most telephone operators are women. The Court considered
whether the requirement was in breach <strong>of</strong> the Gender Equal Employment <strong>Law</strong>, which
prohibits differential treatment on the basis <strong>of</strong> gender without reasonable cause.
The Postal Service employed a female telephone operator who was subsequently
transferred to the appellant, the Korea Electric Power Corporation. The transfer
occurred when the electrical communications work <strong>of</strong> the Postal Service was taken
over by the appellant. The appellant had a mandatory retirement regulation [“the
regulation”] for telephone operators requiring them to retire at the age <strong>of</strong> 53, although
in most other positions there was a mandatory retirement age <strong>of</strong> 58 years. The appellant
asked the female employee to retire in accordance with its regulation when she reached
the age <strong>of</strong> 53. She claimed that she had been unfairly dismissed. The Trial Court held
that a review for relief from the unfair dismissal should be conducted. The appellant
appealed from that decision.
The respondent, the Commissioner <strong>of</strong> the Central Labour Commission, argued the
regulation indirectly discriminated against women because it set a lower retirement
age for telephone operators employed by the appellant, an overwhelming majority
<strong>of</strong> whom were women. The respondent claimed that having a different mandatory
retirement age for telephone operators amounted to discrimination against women
because it limited their right to work.
68

Korea Electric Power Corporation v Commissioner <strong>of</strong> the Central Labour Commission (Korea)
The appellant argued that as most telephone operators retired earlier than the mandatory
retirement age it did not affect the right <strong>of</strong> telephone operators to work. Further, to
increase the mandatory retirement age would result in an older workforce and create
difficulties for management, particularly considering the surplus <strong>of</strong> workers available
for this type <strong>of</strong> work and the current hiring freeze. These factors, they argued, created a
“reasonable basis” to have different retirement ages and thus the regulation did not fall
within Article 8 <strong>of</strong> the Gender Equal Employment <strong>Law</strong>, which prohibits discrimination
against women and men without just cause.
Decision
The Court decided in favour <strong>of</strong> the appellant. It held that there was a reasonable basis
for instituting earlier retirement ages for telephone operators and higher retirement
ages for other workers. Article 5 <strong>of</strong> the Labour Standard <strong>Law</strong> and Clause 1 <strong>of</strong> Article
2.2 <strong>of</strong> the Gender Equal Employment <strong>Law</strong> provide that gender discrimination means
differential treatment on the basis <strong>of</strong> gender without reasonable cause. The Court held
that despite the majority <strong>of</strong> telephone operators being women there was just cause for
gender discrimination for several reasons. Increasing the retirement age <strong>of</strong> telephone
operators would increase the costs <strong>of</strong> the appellant. These higher costs would result
from the establishment <strong>of</strong> a seniority system, a reduction in the inflow <strong>of</strong> new human
resources and a decrease in productivity. The Court also took into account the human
resource policy <strong>of</strong> telephone operators, which included variables such as the surplus
<strong>of</strong> human resources, the personnel structure <strong>of</strong> each age, the degree <strong>of</strong> difference <strong>of</strong>
retirement age, and the opinions <strong>of</strong> telephone operators on the current retirement age
<strong>of</strong> 53. These factors, the Court held, supported its decision. It also noted that within a
seven year period, 90% <strong>of</strong> telephone operators had retired by the age <strong>of</strong> 41, well before
the mandatory age <strong>of</strong> 53.
Commentary
This decision was detrimental to women’s equality in the workplace as it failed to
recognise the effect <strong>of</strong> the mandatory retirement age regulation on women’s right
to work. Although the Court recognised that the earlier retirement age for telephone
operators was discriminatory on the basis <strong>of</strong> gender since most operators were women,
it held that it was reasonable to discriminate in the circumstances. The Court’s
perception <strong>of</strong> what is reasonable discrimination stemmed from a male-oriented
perspective. In this decision, the business needs <strong>of</strong> management in relation to pr<strong>of</strong>it
outweighed the claim <strong>of</strong> the female telephone operators to equal treatment with other
workers. Subsequently however, on 8 February 1999, the Gender Equal Employment
<strong>Law</strong> was amended to include the phrase “it is deemed discrimination to have the
business owner apply standards or conditions to personnel positions that are staffed
by any one gender”. This amendment provides specific protection for female workers
who are working in female- dominated occupations as occurred in this case.
69

CONSTITUTIONAL LAW
Nepal
Discriminatory <strong>Law</strong>s/Equality
Women’s <strong>Law</strong> and Development Fund, Women and Development
Forum (Petitioners) v His Majesty’s Government, Ministry <strong>of</strong> <strong>Law</strong>
and Justice, Ministry <strong>of</strong> Parliamentary Affairs, Cabinet Secretariat,
House <strong>of</strong> Representatives, Special Assembly (Respondents)
Supreme Court, Special Bench (unreported)
21 May 1998
<strong>Law</strong>s Considered
Constitution <strong>of</strong> Nepal 1990, Article 11;
Birth, Death, and Other Personal Events Registry, Sections 4(a), (b);
Bonus Act, Sections 10(1)(b), (c), 10(2)(b), (c);
Chapter on Husband and Wife, No. 1(2), No. 2;
Chapter on Adoption, No. 2, No. 12;
Armed Forces Act, Section 10.
The Court in this case considered whether certain Nepalese laws were discriminatory
and in breach <strong>of</strong> the equality provisions contained in Article 11 <strong>of</strong> the Constitution
<strong>of</strong> Nepal 1990 [“the Constitution”]. The five laws considered by the Court were
challenged for the following reasons.
The Birth, Death, and other Personal Events Registry distinguishes between husbands
and wives. The Bonus Act provides a son may receive a benefit in the absence <strong>of</strong> a
husband and wife in the family. By contrast, daughters can only receive a benefit if
there are no sons in the family hence leading to unequal treatment between daughters
and sons.
The Chapter on Husband and Wife provides for the automatic dissolution <strong>of</strong> a
marriage where the wife is proven to have committed adultery, whereas the wife may
only dissolve the marriage if the husband has a second wife or concubine. The Chapter
also differentiates between the custodial rights <strong>of</strong> fathers and mothers over minors.
The Chapter on Adoption states that a husband without a son may adopt a son, but
a wife without a son cannot adopt one. This Chapter also treats sons and daughters
unequally in other provisions.
70

Women’s <strong>Law</strong> and Development Fund, Women and Development Forum v His Majesty’s Government etc. (Nepal)
The Armed Forces Act bars women from recruitment into the army. The petitioners
began court proceedings seeking a declaration that the statutes were unlawful.
The petitioners argued that the laws discriminated against women on the basis <strong>of</strong> sex
and resulted in the unequal treatment <strong>of</strong> women. They argued each <strong>of</strong> the statutes
was in breach <strong>of</strong> Article 11 <strong>of</strong> the Constitution.
The Ministry <strong>of</strong> <strong>Law</strong> and Justice, the Ministry <strong>of</strong> Parliamentary Affairs and the
Cabinet Secretariat argued that they were not responsible for the laws. They also
argued that the petitioners’ arguments were baseless and unreasonable.
Two amicus curiae (“friends <strong>of</strong> the court”) were called upon to give opinions on the
issues before the Court. Learned Advocate S. K. Kharel stated that although some
laws may appear discriminatory they are in fact in response to biological differences
between women and men. He stated that the Bonus Act did not discriminate on the
basis <strong>of</strong> sex. The second amicus curiae, Bala Ram, K.C. stated that many countries
have different provisions which apply to women and men in similar situations.
These, he argued, have not been held to be discriminatory.
Decision
The Court held that the relevant sections <strong>of</strong> the Birth, Death, and other Personal
Events Registry and the Armed Forces Act, the Chapter on Adoption and the Chapter
on Husband and Wife were consistent with Article 11 <strong>of</strong> the Constitution. The Court
also held that some laws can be inconsistent with Article 11 but still be lawful. It
found that although the identified sections <strong>of</strong> the Bonus Act were contrary to Article
11 <strong>of</strong> the Constitution it could not resolve this matter as the Ministry <strong>of</strong> Labour was
not made party to the lawsuit. The Court ordered that the Government <strong>of</strong> Nepal look
into the Bonus Act issue but did not provide a specific remedy. Finally, it noted that
there was a need to consider the issues more fully and to formulate an overall plan to
eliminate discrimination against women in the law, particularly in regard to property
rights.
Commentary
This case is not positive for women’s rights in Nepal. The Court continued to
emphasise that there are exceptions to Article 11 <strong>of</strong> the Constitution without
identifying any rules on appropriate grounds for such exceptions. The Court
illustrated yet again a reluctance to repeal a law that it finds to be unconstitutional.
Instead, the Court recommended that the appropriate Ministry undertake further
research and consideration deferring any decision to a later date.
71

CONSTITUTIONAL LAW
Pacific Islands: Nauru
Marriage and Family Life
Marriage
Dagabe Jeremiah (Petitioner) v Nauru Local Government Council
(Respondent)
Miscellaneous Cause No. 2 <strong>of</strong> 1971
Nauru <strong>Law</strong> Reports 1969-82
5 March 1971
Thompson CJ
<strong>Law</strong>s and International Instruments Considered
Births, Deaths and Marriages Ordinance 1957 – 1967, Section 23;
Constitution <strong>of</strong> Nauru 1968, Articles 3, 4 -13, 14;
Universal Declaration <strong>of</strong> Human Rights 1948, Article 16.
This petition considered whether Nauru marriage laws requiring consent from the
Nauru Local Government Council were unconstitutional. The Court considered
whether the Births, Deaths and Marriages Ordinance 1957-1967 [“the Ordinance”],
which limits the rights <strong>of</strong> Nauruan persons to marry, was contrary to Article 3 <strong>of</strong> the
Constitution <strong>of</strong> Nauru 1948 [“the Constitution”] and international conventions that
protect the rights and freedoms <strong>of</strong> men and women to marry and found a family.
The petitioner, Dagabe Jeremiah, a Nauruan man, wished to marry a non-Nauruan
woman. He applied to the Nauru Local Government Council [“the Council”] for its
consent to the marriage under section 23 <strong>of</strong> the Ordinance. Consent from the Council
is one <strong>of</strong> the prerequisites <strong>of</strong> a lawful marriage if one <strong>of</strong> the parties is Nauruan. The
Council refused consent and the marriage could not be solemnised lawfully in Nauru.
The Council provided no reasons for its decision.
Dagabe Jeremiah claimed that the requirement <strong>of</strong> consent from the Council to a
marriage before it can be solemnised lawfully in Nauru was contrary to Article
3 <strong>of</strong> the Constitution. He argued that apart from certain limitations, which could
lawfully be imposed on the right to marry including consanguinity, immature age
and medical unfitness, the right to marry is unlimited. Article 3 <strong>of</strong> the Constitution
confers on everyone in Nauru a right <strong>of</strong> respect for their private and family life. The
right to respect for a private and family life includes the right to marry and that right
72

Dagabe Jeremiah v Nauru Local Government Council (Pacific Islands: Nauru)
is not limited by race or nationality. The petitioner further argued that this position was
supported by Article 16 <strong>of</strong> the Universal Declaration <strong>of</strong> Human Rights 1948 [“UDHR”].
Article 16 provides that “men and women <strong>of</strong> full age, without limitation due to race,
nationality or religion, have the right to marry and found a family.”
The respondent, the Council, argued there was no “right to marry” that the Court could
enforce. Article 3 <strong>of</strong> the Constitution does not confer any substantive rights other than
those in Articles 4 to 13 and there was nothing in those Articles to support the arguments
<strong>of</strong> the petitioner. Further, the Council submitted that there is no common law right to have
a marriage solemnised and that none is conferred by the Constitution or any statute other
than the Ordinance, which imposes certain conditions including obtaining the consent <strong>of</strong>
the Council in the case <strong>of</strong> non-Nauruan persons.
Decision
The Court held that consent must be obtained from the Council before a marriage <strong>of</strong>
a Nauruan to a non-Nauruan person can be legally solemnised in Nauru. The Court
rejected the petitioner’s argument that the UDHR was applicable in this case. It did so on
the basis that the UDHR was not adopted in its entirety in the Constitution as some <strong>of</strong> the
rights in the UDHR were not considered necessary or suitable for Nauru. The Court held
that Article 3, when it refers to fundamental rights and freedoms, refers only to those set
out in Articles 4 to 13 and does not include any pre-existing rights and freedoms. The
Court held that the legally enforceable rights in the Constitution were therefore only
those specifically identified in Articles 4 to 13. The right to marry was not one <strong>of</strong> these
rights. Therefore the petitioner’s application to marry a non-Nauruan woman was held to
be lawfully refused by the Council.
Commentary
This case was detrimental for women’s rights since the Court took a very conservative
approach in its interpretation <strong>of</strong> the interaction between the UDHR and the Constitution.
The Court chose to interpret the meaning <strong>of</strong> Article 3 narrowly, finding that only those
rights specifically identified in Articles 4 to 13 were protected by the Constitution. It
refused to “read in” other rights such as the right to marry without consent, stating that
only some <strong>of</strong> the principles <strong>of</strong> the UDHR were applicable to Nauru. This view fails to
appreciate that the UDHR applies to all nations regardless <strong>of</strong> ratification and that its norms
and standards cannot be divided or separated in applications under international law.
Unfortunately, the Court did not accept that the UDHR should provide an overarching
guide to the form <strong>of</strong> the rights and freedoms recognised in international law and accepted
in many other nations.
However, despite the outcome this is a progressive case as it was the first time in Nauru
(1971) that a human rights instrument was used to argue a case before the courts. It marks
a positive recognition <strong>of</strong> the increasing importance that such instruments play in the
domestic law <strong>of</strong> many nations.
73

CONSTITUTIONAL LAW
Bangladesh
Marriage and Family Life
Divorce
Jesmin Sultana (Petitioner) v Mohammad Elias (Respondent)
Supreme Court, High Court Division
Civil Revision No. 4591 <strong>of</strong> 1995
26 November 1997
Mohammad Gholam Rabbani and M. Balzur Rahman Talukder JJ
<strong>Law</strong>s Considered
<strong>Law</strong> <strong>of</strong> Personal Status 1957 (Tunisia);
Muslim Family <strong>Law</strong>s Ordinance 1961 (Bangladesh);
Tunisian <strong>Law</strong> <strong>of</strong> Personal Status 1957.
This case examined spousal maintenance laws in Bangladesh and the practice <strong>of</strong> polygamy.
The Court considered the grounds on which prompt dower and maintenance could be
awarded under Bangladeshi law. It also considered whether the practice <strong>of</strong> polygamy
permitted by the Muslim Family <strong>Law</strong>s Ordinance 1961 is contrary to Islamic law.
The petitioner, Jesmin Sultana, and the respondent, Mohammad Elias, were married
on 25 May 1992, but began to live separately on 2 October 1992. Jesmin Sultana
began proceedings on 26 September 1993 for prompt dower (“mahr-i-muajjal”, a fixed
amount payable on demand) and maintenance (“mahr-i-muwajjal”, deferred dower and
the remainder <strong>of</strong> the initial amount that is paid in the event <strong>of</strong> divorce or death <strong>of</strong> the
husband).
The Trial Court awarded Jesmin Sultana 60,000 taka as prompt dower and 500 taka
as monthly maintenance. On appeal, the lower appellate court reduced the amount <strong>of</strong>
prompt dower to 40,000 taka on the basis that the respondent was unable to pay the
full amount. Jesmin Sultana appealed to the High Court Division <strong>of</strong> the Supreme Court
against the reduction <strong>of</strong> the prompt dower.
Jesmin Sultana argued that she had not voluntarily left her husband but was compelled
to do so by his desire to remarry and that she was therefore entitled to prompt dower
and maintenance. She argued that the Court cannot reduce prompt dower on the basis
<strong>of</strong> the husband’s inability to pay.
74

The respondent argued argued that Jesmin Jesmin Sultana Sultana had had voluntarily voluntarily left left his his house house and
and
was residing with her parents without lawful cause, and therefore was not entitled to
maintenance. He relied upon a precedent established in Mosammat Nur Akhter v Md.
Abdul Mabud Chowdhury (1996) 16 BLD 396 in which the he petitioner was held not to
be entitled to maintenance because she had voluntarily left her husband.
Decision
The Supreme Court decided in favour <strong>of</strong> Jesmin Sultana and restored the original
amount <strong>of</strong> prompt dower on the basis that she was compelled to leave the marital
home because <strong>of</strong> her husband’s application to take a second wife. His application for
a second wife was based on the fact that the petitioner was sickly and incapable <strong>of</strong>
performing conjugal relations. The Court held that a husband will only be released
from an obligation to pay the prompt dower in full if a wife voluntarily remits part <strong>of</strong>
the dower. It reaffirmed Jesmin Sultana’s right to maintenance as fixed by the lower
court at 500 taka per month.
The Court noted, although not as part <strong>of</strong> the binding decision, that section 6 <strong>of</strong> the
Muslim Family <strong>Law</strong>s Ordinance 1961, which permits polygamy, is contrary to
Islamic law. It concluded, based on a variety <strong>of</strong> commentators, that Islamic law
holds that in order to practice polygamy a husband must be able to deal “justly”
with all his wives. The Court agreed with Muslim jurists and scholars who take
the view that in the context <strong>of</strong> modern society it is impossible to deal with multiple
wives “justly” and therefore Islamic law in effect prohibits taking a second wife
during an existing marriage. The Court recommended that section 6 <strong>of</strong> the Muslim
Family <strong>Law</strong>s Ordinance 1961 be repealed and substituted with a section prohibiting
polygamy.
Commentary
The matter before the Court did not require a ruling on the legality <strong>of</strong> polygamy,
however the Court took it upon itself to state its opinion on the matter. Its statement,
and ensuing recommendation, that the practice <strong>of</strong> polygamy is contrary to Islamic
law is positive for women. The judges in their discussion <strong>of</strong> the Qu-ran and Sunnah
interpreted the issue <strong>of</strong> polygamy from a broad perspective, using the opinion <strong>of</strong>
jurists and the laws <strong>of</strong> other Islamic countries (e.g. the Tunisian <strong>Law</strong> <strong>of</strong> Personal
Status 1957, which prohibits the practice <strong>of</strong> polygamy). They argued against
the present law on polygamy on the basis that it is contrary to the principles and
present practice <strong>of</strong> Islamic law. The position <strong>of</strong> the Court will provide a valuable
springboard for further jurisprudential discussion and advocacy by women’s groups
and activists.
75
Jesmin Sultana v Mohammad Elias (Bangladesh)

CONSTITUTIONAL LAW
Pacific Islands: Vanuatu
Marriage and Family Life
Custody and Guardianship
Patricia Molu (Petitioner) v Cidie Molu (Respondent)
Civil <strong>Case</strong> 30 <strong>of</strong> 1996
Supreme Court, Port Vila
15 May 1998
Lunabek Acting CJ
<strong>Law</strong>s and International Instruments Considered
Convention on the Rights <strong>of</strong> the Child 1989, Article 3(1);
Matrimonial Causes Act CAP 192, Sections 15(1), (2), 4;
Ratification Act No 26 1992.
This case examines the principles on which child custody decisions should be
based. The Court considered firstly, the customary laws <strong>of</strong> Vanuatu which provide
that a father should be given custody <strong>of</strong> children, and secondly, the Matrimonial
Causes Act CAP 192, which provides that the welfare <strong>of</strong> children is the paramount
consideration in custody cases. The Court considered these issues in light <strong>of</strong>
international conventions that protect the rights <strong>of</strong> children.
The petitioner Patricia Molu, and the respondent Cidie Molu, were married in August
1992 and had three children. On 26 September 1996, the marriage was dissolved.
At the time <strong>of</strong> the divorce the oldest son Yannick Molu (10 years old), was living
with Patricia Molu’s family and had been since a young age. The couple’s 6 year old
daughter, Annie-Rose Molu, continued to live with her mother after the divorce in a
rented house in Port Vila. The youngest child, Ian Molu, (4 years old), had lived with
his father’s family since February 1996. Although Patricia Molu had not consented
to the removal <strong>of</strong> Ian by her husband’s family she had not sought his return prior to
these court proceedings.
Patricia Molu initiated court proceedings seeking custody <strong>of</strong> the three children after
an unsuccessful attempt to negotiate custody and child maintenance with her exhusband.
Cidie Molu also sought custody <strong>of</strong> the three children and child maintenance
from his ex-wife. In addition he lodged a claim for the return <strong>of</strong> the bride price
(dowry) and wedding expenses.
76

Patricia Molu v Cidie Molu (Pacific Islands: Vanuatu)
Decision
The Court ruled that joint custody should be awarded to both parents in respect <strong>of</strong>
Yannick Molu but Patricia Molu and her parents would have care and control <strong>of</strong>
him. The Court also decided that Patricia Molu should be awarded full custody <strong>of</strong>
Anne-Rose Molu but that Cidie Molu should be awarded full custody <strong>of</strong> Ian Molu
on the basis that he was well settled with the respondent’s family. Both parents were
awarded access to all three children. Further, the Court awarded maintenance <strong>of</strong>
25,000 vatu to be paid per year for each child.
In reaching its conclusion on the issue <strong>of</strong> custody, the Court noted that section 15(1)
<strong>of</strong> the Matrimonial Causes Act CAP 192 gives the Court a wide discretion. The Court
held that in exercising this discretion the paramount consideration is the welfare <strong>of</strong>
the children. The common law position that the father has a right to the custody <strong>of</strong> his
children was thus overturned. The Court noted that in custody proceedings, because
<strong>of</strong> the social and cultural contexts <strong>of</strong> Vanuatu, many parents particularly fathers, base
their applications on the mistaken belief that they have some property right to “own”
their children. In doing so such parents neglect to consider how they would care for
them if custody was granted to them. These considerations were taken into account
by the Court in its finding that the welfare <strong>of</strong> the child is paramount.
In deciding that the welfare <strong>of</strong> the child is paramount, the Court also relied upon
the Convention on the Rights <strong>of</strong> the Child 1989 [“the Convention”]. In particular
Article 3(1) provides: “in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts <strong>of</strong> law, administrative authorities
or legislative bodies, the best interests <strong>of</strong> the child shall be a primary consideration.”
The Court confirmed that the provisions <strong>of</strong> the Convention are binding on the
Republic <strong>of</strong> Vanuatu since its ratification by the Vanuatu parliament. (Ratification
Act No 26 <strong>of</strong> 1992)
The respondent’s claim that he was entitled to the return <strong>of</strong> the bride price and
wedding costs under customary law was refused by the judge. The Court noted that
although it has the power to administer customary law, the parties had been married
under civil law and therefore custom could not be pleaded in these circumstances.
The Court held that the bride price and wedding costs did not form part <strong>of</strong> the
matrimonial settlement under civil law, and that the respondent was not entitled to
reimbursement.
The respondent also claimed the return <strong>of</strong> 600,000 vatu as his contribution to the
three year marriage. The Court held that his contribution to the marriage was part
<strong>of</strong> his fundamental duty as a father and a husband and no reimbursement could be
awarded.
77

Patricia Molu v Cidie Molu (Pacific Islands: Vanuatu)
Commentary
This case marks a step forward in the welfare <strong>of</strong> children in custody disputes as it
held that children must not be viewed as possessions. The Convention on the Rights
<strong>of</strong> the Child 1989 was utilised to overturn Vanuatu custom that gave precedence
to the father in custody disputes. In place <strong>of</strong> that custom the Court substituted the
principle <strong>of</strong> the “best interests <strong>of</strong> the child”. This test creates a neutral standard under
which either parent can be awarded custody depending on the best interests <strong>of</strong> the
child. It requires that the ability <strong>of</strong> each party to care for the child be considered and
weighed up.
This finding, as well as recognising the rights <strong>of</strong> children, also advances the rights
<strong>of</strong> women in the context <strong>of</strong> custody disputes. This new standard provides a gender
neutral basis affording women a better chance <strong>of</strong> being awarded custody <strong>of</strong> their
children. However, that standard may favour the father over the mother, since <strong>of</strong>ten
the father is in the strongest position to <strong>of</strong>fer financial security for the children.
Although such considerations may sway the Court towards finding for the father it is
nevertheless a big step towards granting fair and unbiased decisions in future custody
cases.
The reliance on the Convention on the Rights <strong>of</strong> the Children was integral to this
case as the Court stated that Vanuatu, having ratified the Convention, had a legal
responsibility to abide by it. The relevant Article, Article 3(1), is enforceable by
the courts without specific legislation to implement it unlike other Articles in
the Convention. The Court thus used its powers to the fullest in implementing
international law.
The Court’s comments in relation to the respondent’s claim to be reimbursed for his
costs during the marriage is also significant. It firmly emphasised that marriage is
a commitment <strong>of</strong> mutual responsibility and that the contribution by a father and a
husband is not one <strong>of</strong> payment for services rendered. Instead it is a fundamental duty,
both moral and legal, amongst family members.
78

Marriage and Family Life
Inheritance and Succession
Prakash Mani Sharma (Petitioner) v His Majesty’s Government,
Ministry <strong>of</strong> <strong>Law</strong>, Justice, and Parliamentary Affairs, Secretariat
<strong>of</strong> the Council <strong>of</strong> Ministers, House <strong>of</strong> Representatives, National
Assembly (Respondents)
Supreme Court, Special Bench (unreported)
8 February 1996
Mohan Prashad Sharma, Krishna Jung Rayamaghi, Govind Bahadur Shrestha JJ
<strong>Law</strong>s Considered
Act Relating to Land, Section 26(1);
Constitution <strong>of</strong> Nepal 1990, Articles 11, 17.
This case examines sex discrimination in Nepalese inheritance and tenancy law.
The Court considered whether a law authorising the transfer <strong>of</strong> tenancy after the
death <strong>of</strong> the tenant to his wife provided she did not marry, and to male relatives,
but not other female relatives was in breach <strong>of</strong> the Constitution <strong>of</strong> Nepal 1990 [“the
Constitution”].
The petitioner, Prakash Mani Sharma, claimed that section 26(1) <strong>of</strong> the Act Relating
to Land discriminated against women. Section 26(1) stated that when a tenant died,
the tenancy could be transferred to the husband, wife, or son <strong>of</strong> the deceased person.
Section 26(1) also stated that the tenancy could not be transferred to a daughter,
married woman, or widowed daughter-in-law <strong>of</strong> the deceased person.
The petitioner argued that section 26(1) was contrary to the equality provision <strong>of</strong> the
Constitution and was therefore unlawful.
The respondents argued that this issue was not within their area <strong>of</strong> responsibility and
the proceedings should not have been brought against them. However, if the Court
did find them responsible, they argued that section 26(1) <strong>of</strong> the Act Relating to Land
had not infringed any fundamental rights. They argued this on the basis that the
right to acquire tenancy was a conditional right, and not a right that was generally
79
CONSTITUTIONAL LAW
Nepal

Prakash Mani Sharma v His Majesty’s Government, Ministry <strong>of</strong> <strong>Law</strong>, Justice etc. (Nepal)
granted to everyone all the time. The respondents also argued that the law did not
discriminate against women because a wife <strong>of</strong> the deceased person could inherit a
tenancy.
The respondents argued that precedent supported their position. They also argued
that a general law like the Constitution could not be used to interpret a specific law
such as the Act Relating to Land.
Decision
The Court held that section 26(1) was lawful. The Court recognised that there were
inconsistencies between the Act Relating to Land and the Constitution, but these
must be seen in light <strong>of</strong> the fact that the right to tenancy is not an absolute right, but
a conditional one. The Court accepted the argument that since a wife may inherit the
tenancy, the law did not discriminate based on gender. The Court ruled that section
26(1) was consistent with the principle <strong>of</strong> equality guaranteed in the Constitution.
Further, the Court stated that it was reasonable to exclude daughters and daughters-inlaw
from inheriting tenancy because this ensured the smooth functioning <strong>of</strong> land after
the death <strong>of</strong> a tenant. A daughter was likely to become a member <strong>of</strong> her husband’s
family, and if she inherited a tenancy, the tenancy would leave the original family and
disrupt their use <strong>of</strong> the land. The Court also stated that daughters were in different
situations to sons because they were entitled to inherit from their husbands.
The Court directed the government to study the issues further and examine the
possibility <strong>of</strong> new legislation to deal with the issues raised in this case.
Commentary
This case was not positive for Nepalese women. The Supreme Court refused to
recognise that tenancy laws discriminated against women and in doing so reinforced
traditional roles and stereotypes <strong>of</strong> Nepalese women. The Court took the view that
to give women the same rights as men in tenancy law would provide an additional
privilege to daughters who would receive a “double share” <strong>of</strong> property as they would
also inherit through their husbands. This viewpoint masked the truth <strong>of</strong> women’s
relative economic weakness.
80

Marriage and Family Life
Inheritance and Succession
John Noel (Applicant) (as representative <strong>of</strong> the descendants <strong>of</strong> Crero
Toto, deceased) v Obed Toto (Respondent)
<strong>Case</strong> No. 18 <strong>of</strong> 1994
Supreme Court, Vanuatu
19 April 1995
Kent J
<strong>Law</strong>s Considered
Constitution <strong>of</strong> Vanuatu 1980, Articles 5, 71, 72, 73, 74, 75, 81.
This case deals with customary succession rights under Vanuatu law. The Court
considered whether the customary patrilineal system, which provides exclusive
succession rights for male descendants, was contrary to the Constitution <strong>of</strong> Vanuatu
1980 [“the Constitution”] and international conventions that protect the rights <strong>of</strong>
women.
In 1987, the Supreme Court named Obed Toto and Philip Pasvu the customary
owners <strong>of</strong> an area <strong>of</strong> land on the island <strong>of</strong> Santo known as Loroneth. The greater
portion <strong>of</strong> the land, which included the well-known tourist location Champagne
Beach, was held to belong to the Toto family. Champagne Beach is a popular tourist
location and earns income in a variety <strong>of</strong> ways. Cruise ships visiting the bay pay a
fee and those visiting the beach by land pay an entry fee.
Land in Vanuatu is held under custom ownership pursuant to Articles 71 and
72 <strong>of</strong> the Constitution. Custom land does not belong to any individual and the
custom owner is the representative <strong>of</strong> the family. Under the Vanuatu customary
patrilineal system, the eldest son inherits the title as head <strong>of</strong> the family when his
father dies. Crero Toto, the father <strong>of</strong> Obed Toto, had 3 wives but only had children
to his first and third wives. His first wife died, leaving 4 children, his second wife
died childless and his third wife bore 7 children. Of the 3 women, Crero Toto was
legally married only to his first wife. When Crero Toto died, Obed Toto, as the
eldest male, became head <strong>of</strong> the Toto family.
81
CONSTITUTIONAL LAW
Pacific Islands: Vanuatu

John Noel (as representative <strong>of</strong> the descendants <strong>of</strong> Crero Toto deceased)) v Obed Toto (Pacific Islands: Vanuatu)
CRERO TOTO
=
Wife #1 Wife #2 Wife #3
Juli Obed Nana Sera
John Noel – Applicant
This action was brought by John Noel (nephew <strong>of</strong> Obed Toto and grandson <strong>of</strong>
Crero Toto) on behalf <strong>of</strong> other members <strong>of</strong> the Toto family seeking the following
declarations. The first declaration sought was that John Noel and those he
represented were custom owners <strong>of</strong> Champagne Beach and that they were equally
entitled to benefits from activities conducted on or from the land. The applicant was
also seeking a declaration that they were entitled to an account <strong>of</strong> all pr<strong>of</strong>its from the
land since the decision in the Supreme Court naming Obed Toto as custom owner.
Finally, they sought a declaration which would set out the appropriate management
and financial control <strong>of</strong> the land.
The applicant argued that the custom <strong>of</strong> East Santo was that brothers and sisters had
equal rights to custom land and together owned the land. The custom owner was only
the person who held the land on behalf <strong>of</strong> the rest <strong>of</strong> the clan. As the son <strong>of</strong> Obed
Toto’s sister, he had a right to his grandfather’s custom land through his mother and
therefore could claim a right in the income derived from it.
Obed Toto, the respondent, argued that according to the custom <strong>of</strong> Santo, he owned
the land and therefore also owned any monies derived from it. Article 74 <strong>of</strong> the
Constitution provides that land ownership must be determined according to custom.
It is customary that the eldest male child inherits the title <strong>of</strong> land ownership from his
father upon his death and becomes the sole decision-maker with regard to the land.
Obed Toto claimed that ‘he could do with it as he wished’ as he was the owner <strong>of</strong> the
land.
Obed Toto also argued that that when daughters marry, they lose their custom
entitlement to their father’s land. Thus when his sister Julie married outside the
family she consequently derived rights to land from her husband and her children
82

John Noel (as representative <strong>of</strong> the descendants <strong>of</strong> Crero Toto deceased)) v Obed Toto (Pacific Islands: Vanuatu)
acquired the rights <strong>of</strong> their father. Obed Toto qualified this evidence to some extent
however, by conceding that sisters still may have some rights, but a lesser right than
that <strong>of</strong> their brothers. This meant that if his sister wanted land from him she could
ask for it but the decision was to be made by him as head <strong>of</strong> the family. This was
also the case for nephews. According to custom, any decision for the distribution <strong>of</strong>
pr<strong>of</strong>its was entirely up to him and although he would normally give some money to
the family he was not obliged to do so.
Decision
The Court held that Obed Toto, in his capacity as a representative <strong>of</strong> the descendants
<strong>of</strong> Crero Toto, was the custom owner <strong>of</strong> the land, but not in his own right. The
applicant, John Noel and those he represented, being descendants <strong>of</strong> Crero Toto, were
also held to be custom owners <strong>of</strong> the land. However, not all custom owners were held
to be entitled to the same benefits. The Court held that in relation to the distribution
<strong>of</strong> income derived from the land it was necessary to apply some restrictions. As a
result it distinguished between custom owners who had rights to the land and those
custom owners entitled to a share <strong>of</strong> the income from the land.
The Court declared that the custom owners who had rights to the income produced by
the land were Crero Toto’s children (the remaining descendants’ entitlements were
limited to a share <strong>of</strong> the land and not the income). It held that the right to income
manifested in all <strong>of</strong> his children equally, irrespective <strong>of</strong> their mother’s marital status
because to distinguish between ex-nuptial and nuptial children would be inconsistent
with the Constitution. Further, the judge noted that income that results from the
individual labours <strong>of</strong> any <strong>of</strong> the custom owners could be retained by that person.
The Court found that Vanuatu custom with respect to land rights does not afford the
same rights to women as it does to men. If a woman marries, she is deprived <strong>of</strong> a
right to property that she would otherwise have had. The same did not apply to men.
It held that custom therefore discriminates against women on the ground <strong>of</strong> sex and
although Article 74 <strong>of</strong> the Constitution states that the rules <strong>of</strong> custom shall form the
basis <strong>of</strong> ownership and use <strong>of</strong> land in Vanuatu, it is subject to the fundamental rights
recognised in Article 5. Article 5 states that a law that discriminates against a woman
on the grounds <strong>of</strong> her sex is inconsistent with the guarantee <strong>of</strong> equal protection <strong>of</strong>
the law.
The Court noted that the adoption by the Vanuatu Parliament <strong>of</strong> Human Rights
Charters with respect to women’s rights recognises the rights <strong>of</strong> women as guaranteed
under the Constitution. It would be entirely inconsistent with the Constitution and
the attitude <strong>of</strong> the Vanuatu Parliament to rule that women had lesser rights than men.
Thus, the Court held that all <strong>of</strong> Crero Toto’s children were equally entitled to the
income from the custom land regardless <strong>of</strong> their sex.
83

John Noel (as representative <strong>of</strong> the descendants <strong>of</strong> Crero Toto deceased)) v Obed Toto (Pacific Islands: Vanuatu)
The Court held that the applicant was entitled to an account <strong>of</strong> the pr<strong>of</strong>its from the
land since the case in 1985. The Court, however, did not consider it appropriate that
it should lay down any plans for the management <strong>of</strong> the property. The parties should
consult with each other to decide how to properly manage the property.
Commentary
This was the first case in Vanuatu that referred to international human rights
conventions to support a finding in favour <strong>of</strong> the rights <strong>of</strong> women. For Ni-Vanuatu
women this means that they can refer to this decision when negotiating land and
other rights including greater speaking rights in customary courts. This decision can
also be used in the formal courts as a precedent to overturn discriminatory common
law decisions, and to bring test cases against other discriminatory customary laws.
This case also gave formal recognition to the children <strong>of</strong> de facto relationships
by granting ex-nuptial children rights to their father’s land. This precedent could
indirectly assist Ni-Vanuatu women in de facto relationships to claim rights, if not
for themselves, then for their children.
This decision established the principle that in Vanuatu the equality provisions <strong>of</strong>
the Constitution take precedence over customary law, if the two systems are in
conflict. Custom that discriminates against women cannot be enforced. The equal
rights provision <strong>of</strong> Article 5 <strong>of</strong> the Constitution was held to have precedence over
the custom that women lose their inherited land rights on marriage even although the
Constitution also protects customary law. This case therefore provides an important
recognition <strong>of</strong> the equality provision giving it a status above other provisions in the
Constitution.
84

Violence Against Women
Sexual Harassment
Hee Jung Woo (Appellant) v Jung Hue Shin, Jong Woon Kim (Seoul
National University), the Republic <strong>of</strong> Korea (Respondents)
95 Da39533
Supreme Court <strong>of</strong> Korea
10 February 1998
Lee, Im Soo; Choi, Jong Choi, Young; Lee, Don Hee; Suh Sung JJ
<strong>Law</strong>s Considered
Constitution <strong>of</strong> the Republic <strong>of</strong> Korea, Article 10;
Civil <strong>Law</strong>, Article 751.
This case examines whether sexual harassment can give rise to a claim in tort for
compensatory damages under Korean law. The Court considered whether sexual
harassment amounts to a breach <strong>of</strong> Article 10 <strong>of</strong> the Constitution <strong>of</strong> the Republic
<strong>of</strong> Korea [“the Constitution”] which protects personal rights. This case also
considered whether an employer and the Republic <strong>of</strong> Korea could be vicariously
liable for acts <strong>of</strong> sexual harassment by an employee.
The appellant, Ms Woo, was employed as a technical assistant at Seoul National
University by the Republic <strong>of</strong> Korea. She was supervised by Pr<strong>of</strong>essor Shin who in
turn was supervised by the president <strong>of</strong> Seoul National University, Mr Jong Woon
Kim. During the course <strong>of</strong> her employment, Pr<strong>of</strong>essor Shin made physical contact
with Ms Woo a number <strong>of</strong> times under the guise <strong>of</strong> training her in the use <strong>of</strong> the
equipment. The physical contact was unnecessary and unwanted and also extended
to looking at her in a sexual manner, and making comments and jokes <strong>of</strong> a sexual
nature. Ms Woo rejected Pr<strong>of</strong>essor Shin’s advances and claimed that his behaviour
had caused her unpleasant and agonising feelings. She was subsequently dismissed
from her job. She sought damages in tort (monetary compensation) for sexual
harassment and her subsequent dismissal by Pr<strong>of</strong>essor Shin; her employer, Mr Jong
Woon Kim <strong>of</strong> Seoul National University and the Republic <strong>of</strong> Korea.
Ms Woo argued that Pr<strong>of</strong>essor Shin made many unwanted and unnecessary physical
advances towards her and that she was dismissed from her job after she refused his
85
CONSTITUTIONAL LAW
Republic <strong>of</strong> Korea

Hee Jung Woo v Jung Hue Shin, Jong Woon Kim (Seoul National University) and the Republic <strong>of</strong> Korea
advances. She also argued that the unwanted advances constituted sexual harassment,
which was an interference with her rights under Article 10 <strong>of</strong> the Constitution.
Further, Mr Kim and the Republic <strong>of</strong> Korea had obligations to Ms Woo to prevent
Pr<strong>of</strong>essor Shin from sexually harassing her and had not fulfilled those obligations.
Ms Woo argued that because <strong>of</strong> the sexual harassment and the subsequent job loss,
she was entitled to monetary compensation from each <strong>of</strong> the three respondents.
The respondents argued that Ms Woo had not expressly refused the physical contact
and it therefore it did not constitute sexual harassment. They also argued that even
if it was unwanted, the physical contact was not severe enough to cause any adverse
change in the workplace environment. The respondents also argued Ms Woo was
dismissed because <strong>of</strong> her attitude and poor performance at work, not because <strong>of</strong>
her refusal <strong>of</strong> Pr<strong>of</strong>essor Shin’s sexual advances. The Republic <strong>of</strong> Korea and the
University argued that they were not vicariously liable for the actions <strong>of</strong> Pr<strong>of</strong>essor
Shin as the sexual harrassment was not part <strong>of</strong> his employment duties.
Decision
The Supreme Court held that Pr<strong>of</strong>essor Shin had sexually harassed Ms Woo. In doing
so he had committed a tort and was liable to pay compensation to her under Article
751 <strong>of</strong> the Civil <strong>Law</strong>. The basis <strong>of</strong> the ruling was that when sexual harassment causes
mental distress to the victim, it interferes with their personal rights protected by
Article 10 <strong>of</strong> the Constitution. Compensation was awarded for the mental damage
that ensued from the sexual language used by Pr<strong>of</strong>essor Shin. However, the claims
based on his other conduct were rejected on the basis that it did not impact upon
Ms Woo’s mental instability or interfere with her ability to work. In relation to her
dismissal, the Court did not agree that it was related to Ms Woo’s refusal to accept
Pr<strong>of</strong>essor Shin’s sexual advances. It dismissed the appeals relating to Mr Kim, Seoul
University and the Republic <strong>of</strong> Korea on the basis that the actions <strong>of</strong> Pr<strong>of</strong>essor Shin
were not part <strong>of</strong> his work duties and that the responsibility for Pr<strong>of</strong>essor Shin’s
actions lay only with him and not his employer.
Commentary
This case was significant for women’s rights because it was the first case in Korea
to recognise a sexual harassment claim. It enhanced social awareness on the issue <strong>of</strong>
sexual harassment and prompted preventative mechanisms such as the amendment
<strong>of</strong> the Gender Equal Employment <strong>Law</strong> in February 1999. Other legislative changes
were also introduced by inserting sexual harassment provisions into the enactment <strong>of</strong>
the <strong>Law</strong> on the Prohibition and Relief <strong>of</strong> Gender Discrimination. This case may also
create an important platform for future advocacy by promoting a fuller understanding
and definition <strong>of</strong> sexual harassment. However, although the Court recognised that
sexual harassment was actionable in law, it was not sensitive to the issue <strong>of</strong> gender,
86

Hee Jung Woo v Jung Hue Shin, Jong Woon Kim (Seoul National University) and the Republic <strong>of</strong> Korea
which was integral to the case. The Court adopted the “reasonable person” test when
evaluating the conduct <strong>of</strong> Pr<strong>of</strong>essor Shin. This test is applied from the viewpoint
<strong>of</strong> the average “reasonable” person and consequently the Court found that most <strong>of</strong>
Pr<strong>of</strong>essor Shin’s conduct was reasonable. It would have been more advantageous
to Ms Woo and women in general if the Court had applied a “reasonable woman”
standard that recognised the gendered nature <strong>of</strong> sexual harassment and evaluated the
conduct <strong>of</strong> Pr<strong>of</strong>essor Shin from the viewpoint <strong>of</strong> the average “reasonable” woman.
Finally, by focusing on the compensation liability issue between the two parties, the
Court failed to take advantage <strong>of</strong> the opportunity to formulate a full definition <strong>of</strong>
sexual harassment.
87

CONSTITUTIONAL LAW
Japan
Violence Against Women
Sexual Harassment
Kanazawa Sexual Harassment <strong>Case</strong>
Roudouhanrei No. 707, pp. 37-49
Nagoya High Court, Kanazawa Branch
1 March 1997
<strong>Law</strong>s Considered
Civil Code, Articles 44.1 and 709;
Labour Standards <strong>Law</strong>, Chapter 2.
This case deals with sexual harassment in employment and its place in Japanese
law.
An employer subjected a female employee to unwanted sexual attention in the
workplace. The female employee argued that the unwanted sexual attention from
her employer took advantage <strong>of</strong> his position <strong>of</strong> power. Further, such acts were
illegal because they violated the petitioner’s dignity and right to sexual freedom.
Decision
The Court decided in favour <strong>of</strong> the female employee and held that the employer’s
“acts <strong>of</strong> obscenity by compulsion” were illegal because they were beyond the
socially permissible limit and therefore violated the petitioner’s dignity <strong>of</strong>
personality, her sexual freedom and her right to sexual determination.
Commentary
This case is significant because it set a precedent in relation to sexual harassment. It
was the first High Court case in Japan to recognise an action for sexual harassment
as a distinct category. Previously, the only avenue for sexual harassment was in
libel. This is positive for women’s rights because it recognised sexual harassment
as a serious and specific problem that is worthy <strong>of</strong> the attention <strong>of</strong> the High Court.
However, some have criticised the amount <strong>of</strong> compensation awarded on the basis
that it is low in comparison to similar cases in other countries.
88

Violence Against Women
Sexual Violence
Al-Amin and 5 others (Appellants) v The State (Respondent)
51 DLR (1999) 154
Supreme Court
10 December 1998
Md Abdul Mannan, A. K. Badrul Huq JJ
<strong>Law</strong>s Considered
Code <strong>of</strong> Criminal Procedure (V <strong>of</strong> 1898), Sections 164, 236, 237;
Cruelty to Women (Deterrrent Punishment) Ordinance 1983
Evidence Act (I <strong>of</strong> 1872), Sections 3, 9, 134, 156;
Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain (XVII <strong>of</strong> 1995), Sections 6(3),
9(ka), (Ga), 20(2), 22, 23.
This case deals with rape and the difficulties in proving a charge where the victim
may be reluctant to report the crime and to testify against the accused and where her
evidence is uncorroborated. The Court considered whether these factors should be
taken into account when determining if a charge <strong>of</strong> rape had been proved.
The principal victim (Victim A) was a female college student who, while walking
through the college one morning with two males (Victim A1 and Nizam), was
surrounded by the six appellants. Both Victim A1 and Nizam were beaten. Nizam
was then freed after money was taken from him while Victim A1 was locked in a
bathroom. Victim A was undressed and raped by five <strong>of</strong> the six appellants. After the
rape, the appellants took a photograph <strong>of</strong> Victim A while she was naked. Victim A1
was also undressed and photographs were taken <strong>of</strong> him while he was naked.
Approximately nine days after the incident, Victim A reported the matter to the
police by filing a First Information Report. The Report did not mention the rape as
the victim had not informed the police <strong>of</strong> this, rather she reported an act <strong>of</strong> “outraging
the modesty”. The incident was subsequently investigated and the full extent <strong>of</strong> the
crime was reported by witnesses. The appellants were charged with rape under Nari-
89
CONSTITUTIONAL LAW
Bangladesh

Al-Amin and 5 others v The State (Bangladesh)
O-Shishu Nirjatan (Bishesh Bidhan) Ain (XVII <strong>of</strong> 1995) (“the Ain”). Victim A then
provided a statement (under section 164 <strong>of</strong> the Code <strong>of</strong> Criminal Procedure) that
she had been raped and photographed whilst naked.
The Trial Court (the Special Court on Violence against Women and Children) held
that the prosecution had failed to prove the charge <strong>of</strong> rape. The main reasons for the
decision were Victim A’s delay in filing a First Information Report and the fact that
the First Information Report did not state that she had been raped. Further, Victim
A’s evidence was uncorroborated by Victim A1 who testified to the “outraging <strong>of</strong>
the modesty” <strong>of</strong> Victim A, but not to her rape. Finally, the Trial Court held that
there was no physical evidence <strong>of</strong> rape. The appellants were instead convicted <strong>of</strong>
“outraging the modesty” <strong>of</strong> Victim A under section 9(ka) <strong>of</strong> the Ain, rather than
rape.
The appellants appealed the decision <strong>of</strong> the Trial Court. They argued that they
were not guilty <strong>of</strong> “outraging the modesty” <strong>of</strong> Victim A on the basis that Victim
A had delayed in making a First Information Report, that she had failed to make
a complete report <strong>of</strong> the incident in the First Information Report, and that her
evidence was uncorroborated. The appellants argued that the above reasons
provided sufficient grounds upon which to acquit them <strong>of</strong> the crime <strong>of</strong> “outraging
the modesty” under section 9(ka) <strong>of</strong> the Ain.
Decision
The Court upheld the decision <strong>of</strong> the Trial Court and reaffirmed the convictions
for “outraging the modesty”. The Court held that there was sufficient evidence
available to the Trial Court to have found the appellants guilty <strong>of</strong> rape. However,
because the prosecution had not appealed the acquittal on the charge <strong>of</strong> rape, the
Court was prevented from converting the order <strong>of</strong> acquittal for rape into an order
<strong>of</strong> conviction. The appellants remained convicted <strong>of</strong> the lesser charge <strong>of</strong>”outraging
the modesty” <strong>of</strong> Victim A.
The Court found that Victim A’s delay in making a First Information Report could
have been due to a number <strong>of</strong> reasons, including that the crime <strong>of</strong> rape affects
the reputation <strong>of</strong> the victim and the honour <strong>of</strong> her family. Accordingly, it was
understandable that, following such a traumatic experience, Victim A may have
been reluctant to report a crime which was embarrassing and shameful.
The Court found that the inconsistency between Victim A’s First Information
Report and her statement under section 164 <strong>of</strong> the Code <strong>of</strong> Criminal Procedure was
not a reason for acquitting the appellants. The First Information Report should not
be treated as the definitive statement <strong>of</strong> the prosecution’s evidence. Rather, it is the
evidence produced to the court at the time <strong>of</strong> trial that is the legal and substantive
90

evidence. At the trial, Victim A had unequivocally stated that she had been raped
and photographs had been taken <strong>of</strong> her while she was naked. The Court considered
that Victim A’s failure to report this in the First Information Report was reasonable
to protect her own honour and dignity and that <strong>of</strong> her family.
The lack <strong>of</strong> corroboration <strong>of</strong> Victim A’s evidence was also rejected by the Court as
a reason for acquitting the accused. The Court considered that the testimony <strong>of</strong> the
victim <strong>of</strong> a sex crime was sufficient for a conviction. It stated that in cases <strong>of</strong> sex
crimes, it is reasonable to expect a girl to conceal the crime committed against her,
since an admission impacts both upon her personal honour and her family’s honour.
Accordingly, no girl would make a humiliating statement against her honour and
dignity, unless it was true. Further, there is no need for a particular number <strong>of</strong>
witnesses to prove a case. A conviction may be founded on the testimony <strong>of</strong> the
victim alone, provided that evidence is credible and consistent.
In the present circumstances, where the testimony <strong>of</strong> Victim A appeared to be
reliable, there was no reason to doubt that evidence on the basis that it was
uncorroborated by the evidence <strong>of</strong> any other witnesses. The Court referred to the
purpose and object <strong>of</strong> the Ain <strong>of</strong> 1995, which it described as a stringent law enacted
to provide an effective check on the commission <strong>of</strong> heinous crimes to women and
children, which were continuing despite the prevailing law, i.e. The Cruelty to
Women (Deterrent Punishment) Ordinance 1983. The Court is required to adopt a
beneficial construction <strong>of</strong> the Ain and to award proper and appropriate punishment
to the <strong>of</strong>fenders <strong>of</strong> such crimes, especially in instances <strong>of</strong> sexual assault.
The Court noted that the punishment imposed on <strong>of</strong>fenders <strong>of</strong> sexual crimes should
be sufficient to act as a deterrent to potential <strong>of</strong>fenders, and to ensure that citizens
retain confidence in the law. Further, the interest <strong>of</strong> the victim in ensuring that an
appropriate punishment is imposed must also be recognised.
The Court also made the following observations in relation to the conduct <strong>of</strong>
investigations and trials relating to sexual <strong>of</strong>fences. The definition <strong>of</strong> rape should
be amended to remove certain loopholes and inadequacies. The crime <strong>of</strong> rape
seriously <strong>of</strong>fends the honour and dignity <strong>of</strong> women and therefore a victim should
be protected from further public embarrassment at the time <strong>of</strong> investigation and at
trial. This could be achieved by, for example, having the investigation conducted
by a female <strong>of</strong>ficer, having medical examinations conducted by a female doctor,
and having the trial conducted in a closed court.
Finally, the Court stated that not only should the <strong>of</strong>fenders <strong>of</strong> sexual crimes be
punished, but the victims <strong>of</strong> sexual crimes should be compensated for the crime
committed against them.
91
Al-Amin and 5 others v The State (Bangladesh)

Al-Amin and 5 others v The State (Bangladesh)
Commentary
This case is positive for women in Bangladesh. The decision <strong>of</strong> the Supreme Court
in this case clearly focused on the effect <strong>of</strong> rape on a woman, and, in particular, the
difficulties faced by a woman when reporting a sexual crime, and participating in any
subsequent trial. The Court criticised the male-dominated criminal justice system
and in particular the failure <strong>of</strong> the State to lodge an appeal against the acquittal on the
charges <strong>of</strong> rape in the Trial Court.
The case recognised that in a tradition-bound non-permissive society, such as exists
in Bangladesh, a woman may be extremely reluctant to admit that she has been raped
as it will damage her own reputation, and the reputation <strong>of</strong> her family. Consequently
when she does report a rape, her testimony should be taken extremely seriously, as
no woman or girl <strong>of</strong> honour would want to bring shame to her name or to her family,
by falsely testifying to being raped.
The Court confirmed that it is the duty <strong>of</strong> the legal system to recognise these difficulties,
and to ensure that women are treated with compassion and fairness when sexual
crimes are investigated and prosecuted. Further, some <strong>of</strong> the recommendations <strong>of</strong>
the judges were reflected in the subsequent enactment <strong>of</strong> the Suppression <strong>of</strong> Violence
Against Women and Children Act 2000 indicating the significance <strong>of</strong> the judgment
for Bangladeshi women.
92

Part III
Appendices

A Article
APWLD Asia Pacific Forum on Women, <strong>Law</strong> and Development
CAT Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 1984
CEDAW Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination
Against Women 1979
CJ Chief Justice
CRC Convention on the Rights <strong>of</strong> the Child 1989
DEVAW Declaration on the Elimination <strong>of</strong> Violence Against Women 1993
ICCPR International Covenant on Civil and Political Rights 1966
ICESCR International Covenant on Economic, Social and Cultural Rights 1966
ILO International Labour Organisation
J/JJ Judges/Justices
No. Number
NGO Non Government Organisation
p/pp page/pages
PLD Partners for <strong>Law</strong> in Development
RRRT Pacific Regional Human Rights Education Resource Team
Rs Rupees
SC Supreme Court
UDHR Universal Declaration <strong>of</strong> Human Rights
UK DFID United Kingdom Department for International Development
UNSW University <strong>of</strong> New South Wales
VAW Violence Against Women
93
Abbreviations

Glossary
absolute
Unconditional, free from restriction or limitation, complete, not contingent on.
accede
To consent to something, or to enter a treaty or accord.
amicus curiae
Latin term meaning “a friend <strong>of</strong> the court”. An amicus curiae has no personal interest
in the case and does not advocate a point <strong>of</strong> view in support <strong>of</strong> one party or another.
The court may hear an amicus curiae if it considers it in the interests <strong>of</strong> justice to do
so.
appeal
An application to a higher court or tribunal to review or reverse a decision <strong>of</strong> a lower
court or tribunal. An appeal may be as <strong>of</strong> right, or may depend on the higher tribunal
or court consenting to the appeal.
appellant
A party against whom an unfavourable decision has been made in a court or tribunal
and who applies to have the decision reconsidered by a higher court or tribunal.
bequeath
The act <strong>of</strong> giving property or assets through the terms <strong>of</strong> a will.
bona fide
To do something honestly and in good faith, or to act without fraud or collusion.
certiorari
Latin term meaning “to be informed”. A type <strong>of</strong> remedy issued by a court. A writ
<strong>of</strong> certiorari is a form <strong>of</strong> judicial review whereby a court is asked to consider a legal
decision <strong>of</strong> an administrative tribunal or lower court and to decide if the decision
has been regular and complete or if there has been an error <strong>of</strong> law. For example, a
certiorari may be used to quash a decision <strong>of</strong> an administrative tribunal which was
made in violation <strong>of</strong> the rules <strong>of</strong> natural justice, such as a failure to give the person
affected by the decision an opportunity to be heard.
common law
Historically, a body <strong>of</strong> unwritten law derived from the traditional laws <strong>of</strong> England
based on case law precedents and interpretation.
complainant
Generally a person who lodges a complaint with a court, or other decision maker.
94

95
Glossary
In criminal proceedings it is a person, not necessarily the victim, who begins a
prosecution by laying a complaint.
Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination Against
Women
A multilateral agreement recognising the civil, political, economic, social and cultural
rights <strong>of</strong> women. It was adopted by the General Assembly <strong>of</strong> the United Nations
on 18 December 1979 and entered into force generally on 3 September 1981 in
accordance with Article 27(1). The Convention on the Elimination <strong>of</strong> all Forms <strong>of</strong>
Discrimination Against Women 1979 establishes the Committee on the Elimination
<strong>of</strong> Discrimination against Women, which considers reports submitted by state parties
in accordance with the reporting obligations laid down by the Convention. There is
no right <strong>of</strong> individual complaint under the Convention.
corroboration
In criminal proceedings, independent evidence that implicates the accused person by
connecting them with the crime.
custody
As it relates to children, a term encompassing most <strong>of</strong> the rights and duties concerned
with the upbringing <strong>of</strong> children. These rights include the power to make decisions
about a child’s education, religion and property as well as a personal power <strong>of</strong>
physical control. The corresponding duty is to provide the child with food, clothing,
shelter, education and other necessities <strong>of</strong> life.
custom
A practice in society or rule <strong>of</strong> conduct established by long use, which binds those
under it. In order for a custom to constitute a valid law, it must date back to time
immemorial, and be certain and obligatory. It may run counter to the common law
but cannot contravene existing statute law. A custom can be general, particular or
local.
de facto
As it applies to relationships, it describes a relationship bearing the hallmarks <strong>of</strong> a
marriage which, in effect, resembles a marriage, but which has not been formalised
through a ceremony <strong>of</strong> marriage. De facto relationships in most jurisdictions are
recognised at law.
defendant
A person or entity against whom legal action is being taken.

Glossary
discrimination
Treating a person or persons less favourably; distinguishing, excluding, restricting, or
preferring another on the prohibited basis <strong>of</strong> a certain or several features or attributes
that the person or persons possess.
dissenting judgment
A judgment by a member <strong>of</strong> a court or tribunal which differs to the opinions <strong>of</strong> other
members.
ex-nuptial
Out <strong>of</strong> marriage.
general damages
Compensation claimed or awarded for injuries or other loss for which there is
no exact dollar value. General damages include damages for future loss and for
intangible injuries such as pain and suffering.
guardian
In relation to a child, a person with the right to make decisions about the long-term
needs <strong>of</strong> the child, as opposed to the day-to-day care <strong>of</strong> the child. A guardian has
responsibility for such matters as decisions about a child’s religion or education.
guardianship
A legal arrangement where one person has been appointed to take care <strong>of</strong> another
person or the property <strong>of</strong> another.
indirect discrimination
Discrimination on the basis <strong>of</strong> a person’s attribute by imposing, or proposing to
impose, a term with which the person does not or is unable to comply because <strong>of</strong> that
person’s attribute, where a higher proportion <strong>of</strong> people without the attribute comply
or are able to comply and the term is not reasonable in all the circumstances.
lakh/lac
A term used in India denoting the number 100,000, especially when referring to this
sum <strong>of</strong> rupees. It is derived from the Hindi word, lakh.
legal standing/locus standi
The entitlement <strong>of</strong> a person or entity to commence legal proceedings or the right to
be heard in a court.
libel
To publish in print (including pictures or writing) or broadcast through radio,
96

97
Glossary
television or film (or through any other mode <strong>of</strong> communication capable <strong>of</strong> being
understood visually) an untruth about another which will do harm to that person
or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or
contempt <strong>of</strong> others.
mala fides
An act done in bad faith, dishonestly or with intent to deceive.
maintenance
Provision <strong>of</strong> the means <strong>of</strong> existence for a minor or adult.
mandamus
An order issued by a court to compel a public <strong>of</strong>ficial to perform a public duty.
minor
A child, a person who has not attained the age <strong>of</strong> having full legal capacity.
ordinance
An authoritative rule or law.
party
One <strong>of</strong> the participants in a legal proceeding who has an interest in the outcome.
Parties include the plaintiff (person filing suit), defendant (person sued or charged
with a crime), petitioner (files a petition asking for a court ruling) or respondent
(usually in opposition to a petition or an appeal).
patrilineal
Relating to, based on, or tracing descent or title through the paternal line.
plaintiff
A person or entity who initiates legal proceedings against another in a civil dispute.
preamble
An introductory statement at the beginning <strong>of</strong> legislation or an instrument providing
information relating to the reason for the enactment, and intent, <strong>of</strong> the legislation.
precedent
A prior reported judgment <strong>of</strong> a court which establishes the legal rule (authority) for
future cases on similar facts or the same legal question. It is also a legal principle or
rule created by one or more decisions <strong>of</strong> a higher court. These rules provide a point
<strong>of</strong> reference or authority for judges deciding similar issues in later cases. Lower
courts are bound to apply these rules when faced with similar legal issues.

Glossary
prerogative writ
A historic generic term for a writ (court order) directed to government agencies or
public <strong>of</strong>ficials in order to prevent them from exceeding their powers or to make
them carry out their functions.
public law
The body <strong>of</strong> law dealing with the rights, powers, obligations and responsibilities
<strong>of</strong> the government including public <strong>of</strong>ficers and the governed (the public). It is
composed <strong>of</strong> criminal, international, environmental, administrative and constitutional
law.
ratification
The adoption or confirmation by a state <strong>of</strong> an agreement or treaty that the state was
not obliged to adopt prior to ratification.
ratio decidendi
Literally means the ‘reason for the decision’.
repeal
The deletion, omission, or reduction in scope <strong>of</strong> an existing law by a subsequent
law.
reservations
A unilateral statement made by a state when signing or ratifying a treaty, by which
the state excludes or modifies the legal effect <strong>of</strong> certain provisions <strong>of</strong> the agreement
in their application to that state.
respondent
A person or entity required to answer a petition for a court order. It is also a party to
court proceedings against whom relief is claimed by an applicant or an appellant. It
is analogous to the term defendant, which is used in many jurisdictions.
sexual harassment
Unwanted sexual approaches or an unwelcome request for sexual favours or engaging
in other unwelcome conduct, <strong>of</strong> a sexual nature e.g. sexist remarks where a reasonable
person would have anticipated that the person harassed would be <strong>of</strong>fended, humiliated,
or intimidated. Sexual harassment is a type <strong>of</strong> sex discrimination and is unlawful in
many jurisdictions.
Sharia law
Sharia <strong>Law</strong> is derived from the teachings <strong>of</strong> the Koran and from Sunna (the practice <strong>of</strong>
the prophet Mohammed), and is implemented to varying degrees in different Islamic
98

countries. Sharia is a religious code for living, and has been formally instituted as
law by certain states and enforced by the courts.
special damages
In an action for tort, compensation awarded for loss actually suffered and expenses
actually incurred, such as medical expenses and loss <strong>of</strong> income.
statute
A law made by parliament.
succession
The transmission or redistribution <strong>of</strong> the property on the death <strong>of</strong> its owner to the
persons or entities entitled to that property, either by will or by operation <strong>of</strong> law.
taka
Monetary unit <strong>of</strong> Bangladesh.
testator
A person who makes a will.
tort
A wrongful act from which injury occurs to another. It is also a civil wrong based
on the breach <strong>of</strong> a duty, imposed by law. The law <strong>of</strong> tort tries through the payment
<strong>of</strong> compensation to restore the injured person to the position they were in before the
tort was committed.
trial in camera (in camera proceedings)
A court case which is closed to members <strong>of</strong> the public. Although generally the courts
conduct proceedings in open court, there should be provisions which permit or
require the court to hear proceedings in a closed court where the case is <strong>of</strong> a particular
nature or where a particular type <strong>of</strong> witness is giving evidence, for example, a child,
or where the proceedings relate to a particular class <strong>of</strong> <strong>of</strong>fence.
ultra vires
An act which is done in excess <strong>of</strong> the power or authority <strong>of</strong> a person, institution, or
legislation. An ultra vires act is invalid.
usufructary rights
The legal right <strong>of</strong> using and enjoying the fruits or pr<strong>of</strong>its <strong>of</strong> something belonging to
another; the right to use or enjoy something.
99
Glossary

Glossary
vatu
The standard monetary unit <strong>of</strong> Vanuatu.
vicarious liability
The legal liability imposed on one person or entity for the wrongful act <strong>of</strong> another
based on the legal relationship between them, for example the relationship between
an employer and an employee where the employer may be held to be vicariously
liable for the damage caused by his/her employee.
will
A written document in which a person (testator) specifies what is to be done with their
property (estate) upon their death. A will usually names an executor who carries out
the wishes <strong>of</strong> the deceased and distributes the estate to named persons or entities.
writ
A written order issued by a court ordering a person or entity to do or refrain from
doing a specified act.
writ petition
An application for an order <strong>of</strong> a court.
100

Bangladesh
CEDAW Country Ratification Report
Ratification
Bangladesh acceded to CEDAW [“the Convention”] on 6 November 1984. The
Government <strong>of</strong> Bangladesh also signed and ratified the Optional Protocol to CEDAW
on 6 September 2000. The Optional Protocol provides that individual and collective
complaints can be made to the CEDAW Committee after exhaustion <strong>of</strong> all domestic
remedies.
Reservations
At ratification the Bangladesh Government originally expressed reservations to Articles
2, 13(a), 16(c) and 16(f) <strong>of</strong> the Convention. The reservations were made on the ground
that the provisions <strong>of</strong> these articles conflict with Sharia law.
On 20 July 1997, the Government subsequently removed its reservations from Articles
13(a) and 16(f). These articles give women equal rights to family benefits and equality
with regard to guardianship and adoption. However, the reservations on Article 2 and
Article 16(c) remain. Article 2 provides that states shall embody principles <strong>of</strong> equality
in their national constitutions and other laws. It provides that States should repeal all
provisions that constitute discrimination against women. Article 16(c) provides for
equal rights in marriage and its dissolution.
Impact
Bangladesh is the first country in South Asia to sign and ratify the Optional Protocol.
However, discrimination persists in Bangladesh under religious based personal laws
due to the continuing reservation to Article 2. The reservation to Article 2 is illogical
because Article 7(2) <strong>of</strong> the Constitution <strong>of</strong> Bangladesh itself states that the Constitution
is “the supreme law <strong>of</strong> the Republic, and if any other law is inconsistent with this
Constitution that other law shall, to the extent <strong>of</strong> the inconsistency, be void”.
Several domestic laws have, however, been enacted or amended to prevent violence
against women and comply with the Convention. The Suppression <strong>of</strong> Violence against
Women and Children (Special Provision) Act 1995, for example, was subsequently
replaced by the Suppression <strong>of</strong> Violence against Women and Children Act 2000.
Although both Acts were enacted to prevent violence, the 2000 Act introduces
changes suggested by women’s organisations. Severe punishments including the death
penalty were introduced for crimes <strong>of</strong> trafficking, kidnapping for ransom and physical
mutilation <strong>of</strong> children for the purpose <strong>of</strong> beggary, which had raised serious concerns
among human rights groups. Recognition <strong>of</strong> the rape <strong>of</strong> boys and two new <strong>of</strong>fences
- sexual harassment and sexual assault - were also introduced. The use <strong>of</strong> videos in
trials (trial in camera) and the prohibition <strong>of</strong> the publication <strong>of</strong> victim’s identity in
the news media were also incorporated. The law continues to ignore, however, other
proposals made by women’s organisations including the incorporation into legislation
<strong>of</strong> domestic violence and marital rape as new <strong>of</strong>fences.
101

CEDAW Country Ratification Report
India
Ratification
The Government <strong>of</strong> India signed CEDAW on 30 July 1980 and ratified it on 9 July
1993, soon after the World Conference on Human Rights in Vienna in 1993.
Declarations
The Government modified its obligations in relation to Articles 5(a), 16(1) and 16(2)
<strong>of</strong> the Convention with two declarations. First, in relation to Articles 5(a) and 16(1)
it declared that it would continue to abide by its policy <strong>of</strong> non-interference in the
personal affairs <strong>of</strong> any community without its initiative and consent.
Second, in relation to Article 16(2) the Government declared that although in
principle it fully supports the principle <strong>of</strong> compulsory registration <strong>of</strong> marriages, it
is not practical to enforce it in a vast country like India where there are variety <strong>of</strong>
customs, religions and differing levels <strong>of</strong> literacy.
Reservations
The Government declared that it was not bound by Paragraph 1 <strong>of</strong> Article 29 <strong>of</strong> the
Convention.
Impact
CEDAW’s impact is evident in the legislative changes and the legal challenges being
made in the Indian courts. After signing the Convention but prior to its ratification
the Citizenship Act 1955 was amended in 1986 with the express purpose <strong>of</strong> making
it consistent with the Convention’s provisions on citizenship. As a result <strong>of</strong> the
amendment, all citizens regardless <strong>of</strong> sex, can confer citizenship on their children
and foreign spouses removing the discrimination that had previously existed between
male and female citizens.
In 1997 after the ratification <strong>of</strong> CEDAW, the Supreme Court <strong>of</strong> India applied General
Recommendation 19 to lay down guidelines relating to sexual harassment in the
workplace in the case <strong>of</strong> Vishaka v State <strong>of</strong> Rajasthan 1997 6 Supreme Court <strong>Case</strong>s
241. According to the Court the absence <strong>of</strong> law on this issue, despite the State’s
undertaking to eliminate discrimination, amounted to discrimination against women.
Hence, guidelines on law on sexual harassment in the workplace came into being
through judicial activism, with directions to the legislature to enact a law.
The Indian women’s movement continues to debate and challenge the Government’s
policy <strong>of</strong> non-interference with religious-based family laws and the two declarations
and reservation in relation to the Convention. They argue that religious-based family
laws disadvantage women in different ways and a policy <strong>of</strong> non-interference by the
102

Government is discriminatory. Some challenges have been made in the superior
courts, using both the constitutional guarantee <strong>of</strong> equality and the obligations the
Indian Government has under CEDAW. In most <strong>of</strong> the cases which have challenged
religion-based family laws on the basis that they discriminate against women, the
courts have declined to intervene on the ground that the parliament and not the
judiciary is the appropriate forum for such matters.
The first review <strong>of</strong> India’s obligations under CEDAW by the CEDAW Committee was
held in New York in January 2000. The Committee strongly urged the Government
<strong>of</strong> India, in their concluding comments <strong>of</strong> the review, to initiate reforms in the
area <strong>of</strong> family law. They also urged the Government to introduce a requirement
for the compulsory registration <strong>of</strong> marriages. However, so far, the Government has
not removed or amended the reservation or the declarations made when it ratified
CEDAW.
103
CEDAW Country Ratification Report: India

CEDAW Country Ratification Report
Republic <strong>of</strong> Korea
Ratification
The Government <strong>of</strong> Korea ratified CEDAW on 27 December 1984 and enacted
domestic legislation [Treaty No. 855] on 7 January 1985 to give effect to the
Convention. Treaty No. 855 became operative on 26 January 1985.
Reservations
At the time <strong>of</strong> ratification Korea expressed reservations to Article 9 and Article
16(1)(c),(d),(g) and (h) <strong>of</strong> the Convention.
Article 9 provides for gender equality in both the nationality <strong>of</strong> children and for
wives who follow the nationality <strong>of</strong> their husbands. The Government’s justification
for making this reservation was the conflict between Article 9 and the nationality
laws <strong>of</strong> Korea which permit naturalisation <strong>of</strong> foreign wives only together with the
husband. The reservation on Article 9 was subsequently withdrawn and was followed
by the amendment <strong>of</strong> the domestic nationality law on 13 December 1997 to accord
with the Convention.
Article 16 provides for gender equality in family life. Reservations were made to this
article because it conflicted with the provisions <strong>of</strong> Korean Family <strong>Law</strong> which were
biased in favour <strong>of</strong> the husband and father. The reservations on Article 16(1)(c),(d)
and (h) were subsequently removed on 15 March 1991.
Article 16(1)(g) however, remains reserved. Children must follow the surname and
origin <strong>of</strong> their father as required by Article 781(1) <strong>of</strong> the Civil <strong>Law</strong> and a wife must
be registered as the family <strong>of</strong> the husband under Article 826(3) <strong>of</strong> the Civil <strong>Law</strong>.
Impact
A number <strong>of</strong> laws in Korea have been amended or enacted in response to the different
articles <strong>of</strong> CEDAW.
Article 1 <strong>of</strong> CEDAW, the definitive provision on discrimination against women, was
introduced in Article 2(1) <strong>of</strong> the <strong>Law</strong> on Prohibition <strong>of</strong> Gender Discrimination and
Relief 1999. This Act, in line with CEDAW, defines gender discrimination as “all
distinction, exclusion, or limitation that is done for the reasons <strong>of</strong> gender without
reasonable basis, in exercising the rights or awareness and enjoyment <strong>of</strong> basic rights
as human in all areas <strong>of</strong> political, economical, social and cultural life”.
Articles 2 and 3 <strong>of</strong> CEDAW: The gender equality principle has been part <strong>of</strong> the
Constitution <strong>of</strong> the Republic <strong>of</strong> Korea since its enactment. The Constitution states
that all persons are equal before the law and that no one shall be discriminated
104

CEDAW Country Ratification Report: Republic <strong>of</strong> Korea
against on the basis <strong>of</strong> gender, religious or social ranking, in all aspects <strong>of</strong> political,
economical, religious or social status. The basic <strong>Law</strong> on Women’s Development
1995, in accordance with CEDAW, further defines the obligation <strong>of</strong> the national
and regional governments as well as organisations to uphold gender equality and
eradicate discrimination against women in all general fields.
The affirmative action provisions <strong>of</strong> Article 4 <strong>of</strong> CEDAW were initially introduced in
Article 6(1) (Potential Preferential Treatment) <strong>of</strong> the <strong>Law</strong> on Women’s Development,
which states that national and regional governments as well as organisations shall
promote greater participation <strong>of</strong> women, where the participation <strong>of</strong> women is clearly
insufficient, and will take potentially preferential treatment in accordance with
determinations made by the relevant laws. Further, Article 8 <strong>of</strong> the <strong>Law</strong> on the
Prohibition and Relief <strong>of</strong> Gender Discrimination states that potential measures for
promoting gender equality under other laws shall not amount to gender discrimination
under this law. Clause 4 <strong>of</strong> Article 2.2 <strong>of</strong> the Gender Equal Employment <strong>Law</strong> 1989
also states that measures taken to minimise existing discrimination by national,
regional governments or business owners that prefer labourers from a certain gender
shall not amount to discrimination under this law. Maternity protection <strong>of</strong> female
labourers is also deemed as non discrimination under this law. Further, on 22
December 1998, Article 11.3 was added to the Decree <strong>of</strong> Government Official
Appointment providing for the induction <strong>of</strong> additional female candidates to provide
greater opportunities <strong>of</strong> employing female government <strong>of</strong>ficials.
Article 6 <strong>of</strong> CEDAW was incorporated into the Preventive <strong>Law</strong> on Prostitution to
punish those who work in prostitution and also those who participate in the act <strong>of</strong>
abetting prostitution thus strengthening the punishment <strong>of</strong> brothel masters.
Article 7 <strong>of</strong> CEDAW: To promote women’s participation in the public arena, a
Special Committee <strong>of</strong> Women in the National Assembly was established with the
amendment <strong>of</strong> the National Assembly <strong>Law</strong> <strong>of</strong> 1994. This Special Committee on
Women was brought under the direct command <strong>of</strong> the President <strong>of</strong> Korea by a later
amendment <strong>of</strong> the Government Organisation <strong>Law</strong> in 1998. Further, the amendment
<strong>of</strong> the Political Party <strong>Law</strong> in February 2000 states that the parties shall “recommend
30/100 or more <strong>of</strong> women as candidates for the National Assembly in national
election districts, and for a ratio representative and election <strong>of</strong> city and provincial
congressmen for ratio representatives”.
Article 9 <strong>of</strong> CEDAW was incorporated into the 1997 amendments to the Nationality
<strong>Law</strong> ensuring gender equality in nationality. The amendment states that the nationality
<strong>of</strong> children and spouses may be selected either by the nationality <strong>of</strong> the husband or
the wife and selection <strong>of</strong> the spouse’s nationality.
105

CEDAW Country Ratification Report: Republic <strong>of</strong> Korea
Article 11 <strong>of</strong> CEDAW, which provides for the abolition <strong>of</strong> discrimination against
women in employment, was incorporated into the Constitution by the 1987
amendments to Article 32(4). It extended protection to women’s labour and prohibited
unjustifiable unequal treatment <strong>of</strong> women in employment, wage and labour conditions.
Further, the enactment <strong>of</strong> the Gender Equal Employment <strong>Law</strong> 1987 now provides
maternity protection and gender neutral equality <strong>of</strong> female labourers. It defines
gender equality throughout the general aspect <strong>of</strong> employment. The first amendments
to this law in 1989 under Article 6(2) also introduced the concept <strong>of</strong> equal pay
for equal wages. This was extended in 1995 to the recruitment process prohibiting
considerations based on physical requirements and a woman’s unmarried status. In
addition Article 7 was later inserted to prohibit the unfair treatment <strong>of</strong> women on
the basis <strong>of</strong> marriage, pregnancy, birth or sex. Article 11 <strong>of</strong> CEDAW has also been
incorporated into Korean domestic law by the enactment <strong>of</strong> the Infant Nurturing <strong>Law</strong>
1991.
Article 16 <strong>of</strong> CEDAW was incorporated into the 1990 amendments to the Civil <strong>Law</strong>
which provides for gender equality in the areas <strong>of</strong> property division, inheritance,
child custody, and the rights <strong>of</strong> divorced parents.
A number <strong>of</strong> Korean cases have referred to the domestic legislation that has been
amended to accord with the provisions <strong>of</strong> CEDAW. However, despite the changes to
domestic law the courts have <strong>of</strong>ten not interpreted their provisions to the benefit <strong>of</strong>
women. For example, the courts have found that the criminal law <strong>of</strong> adultery does
not violate the Constitution. In that case the Court held that the law was essential to
maintain the matrimonial system <strong>of</strong> one-husband and one-wife, to guarantee family
life and the protection <strong>of</strong> sexual obligations for sincerity between spouses, and to
prevent social harms caused by adultery. Further, the Court held that the crime <strong>of</strong>
adultery does not interfere with the true nature <strong>of</strong> freedom and rights or the equality
provisions <strong>of</strong> the Constitution. The dissenting opinion, however, held that the crime
<strong>of</strong> adultery was in breach <strong>of</strong> the Constitution.
The courts have also interpreted the Gender Equal Employment <strong>Law</strong> unfavourably
for women. The Supreme Court held that provisions placing the retirement age <strong>of</strong>
telephone operators, who were mostly women, at 53 years <strong>of</strong> age (5 years earlier than
the general position <strong>of</strong> 58 years <strong>of</strong> age) was not gender discrimination. This decision
damaged the guarantee <strong>of</strong> equal rights to work for women. Subsequently, however,
the <strong>Law</strong> <strong>of</strong> Gender Equality <strong>Law</strong> was amended on 8 February 1999 to state “it is
deemed discrimination to have the business owner apply standards or conditions to
personnel positions that are staffed by any one gender”. It is now possible to claim
indirect discrimination and consequential discrimination.
106

CEDAW Country Ratification Report: Republic <strong>of</strong> Korea
In another case, the Court recognised damage compensation liabilities from the
tort actions <strong>of</strong> a pr<strong>of</strong>essor who sexually harassed an assistant <strong>of</strong> the University.
Sexual harassment was held to be in breach <strong>of</strong> Article 10 <strong>of</strong> the Constitution.
Subsequently, however, the issue <strong>of</strong> sexual harassment was clearly defined as a
gender discrimination issue with the amendment <strong>of</strong> the Gender Equal Employment
<strong>Law</strong> on 8 February 1999 and with the insertion <strong>of</strong> provisions on sexual harassment
in the <strong>Law</strong> on the Prohibition and Relief <strong>of</strong> Gender Discrimination.
However, a positive decision, by the Constitutional Court <strong>of</strong> Korea in another case
held that a provision in the Civil <strong>Law</strong> which prohibited marriage between persons <strong>of</strong>
the same surname and same origin was inconsistent with the Constitution. The Court
held that prohibition <strong>of</strong> marriage between parties <strong>of</strong> the same surname and <strong>of</strong> the
same origin is a byproduct <strong>of</strong> the patriarchal system. It has lost its justifiability in light
<strong>of</strong> social changes that have taken place to date. Further, regardless <strong>of</strong> the distance in
degree <strong>of</strong> kinship, prohibition <strong>of</strong> marriage for the reasons <strong>of</strong> same surname and same
origin is an excessive interference with the freedom that must be determined with
respect to every individual: the right to pursue happiness, freedom <strong>of</strong> matrimony,
and to determine as spouse as guaranteed under Article 10 and Article 36(1) <strong>of</strong> the
Constitution. This decision guarantees the liberty <strong>of</strong> marriage.
In another positive decision, the Constitutional Court <strong>of</strong> Korea held that a provision
in tax law to impose gift taxes on property division in divorce was unconstitutional.
The majority held the imposition <strong>of</strong> a gift tax for asset transfer in property divisions
upon divorce has no relationship with gifts that are acquired for free. This decision
means that when divorcing, women are afforded an equal position with men. The
value <strong>of</strong> family labour by women was recognised and the decision enables them to
exercise an equal right to a share <strong>of</strong> the marriage property.
107

CEDAW Country Ratification Report
Pacific Region
Ratification
The following countries in the Pacific region have ratified CEDAW:
• Western Samoa on 11 January 1992;
• Papua New Guinea on 11 January 1995;
• Fiji Islands on 27 August 1995;
• Vanuatu on 7 September 1995;
• Tuvalu on 6 October 1999.
Kiribati and other Micronesian Islands are yet to ratify the Convention.
Reservations
At ratification the Fiji Government expressed reservations to Articles 5(a) and 9 <strong>of</strong>
the Convention. Article 5(a) provides for the modification <strong>of</strong> practices and social
and cultural patterns <strong>of</strong> conduct <strong>of</strong> men and women, which are based on the idea
<strong>of</strong> inferiority or superiority <strong>of</strong> either sex. The Government was reluctant to modify
the cultural practices <strong>of</strong> traditional Fijian societies and believed modification would
draw strong criticism from the Fijian community. The Government also did not
want CEDAW to be seen by the people as a “foreign, western document” and to
combat this intended to provide education and conduct awareness raising about the
Convention and the implications <strong>of</strong> Article 5(a) prior to removing the reservation.
At ratification the citizenship provisions in Articles 26 and 27 <strong>of</strong> the Constitution <strong>of</strong>
Fiji 1990 [“the Constitution”] were inconsistent with Article 9 <strong>of</strong> CEDAW relating to
nationality. The Constitution was subsequently amended, resulting in gender-neutral
provisions for nationality and residency rights <strong>of</strong> non-citizen spouses. Articles 12(7)
and 16 <strong>of</strong> the Constitution gave non-citizen spouses married to Fijian women the
right to acquire Fijian citizenship or to reside in Fiji. These changes nullified the
reservation to Article 9.
The reservations to both Articles 5(a) and 9 <strong>of</strong> the Convention have however, been
subsequently withdrawn.
Impact
In the latter years <strong>of</strong> the last decade, the courts in the Pacific region have cautiously
begun to accept international human rights instruments such as CEDAW, CRC, and
ICCPR. This is especially so in the courts <strong>of</strong> Fiji, where High Court judges are
specifically applying international conventions to cases, as opposed to merely quoting
them as references in their judgments.
108

CEDAW Country Ratification Report: Pacific Region
Despite Kiribati not having ratified the Convention, lawyers have attempted to use
CEDAW in the High Court in Kiribati [The Republic <strong>of</strong> Kiribati v Tieta Timiti
and Rabaere Robuti HCCrC43/97, 1998]. Although the Court did not discuss the
application <strong>of</strong> CEDAW it did not however rule out its relevance.
Whilst international conventions are rarely to be the sole reason for a judicial
decision, they have <strong>of</strong>ten been cited in support <strong>of</strong> the ratio decidendi. In the Pacific
region most cases citing international conventions are landmark decisions and have
far reaching effects in the courts.
CEDAW’s impact is also evident in legislative developments. The draft Sexual
Offences Bill in Fiji, for example, incorporates the principles <strong>of</strong> CEDAW. The
Bill aims to remove all legislative, interpretive and procedural discrimination
against women and children in laws and practices in rape and other sexual assault
crimes. These practices include the discriminatory corroboration warning and the
admissibility as evidence <strong>of</strong> past sexual experience <strong>of</strong> the rape survivor.
The upward trend in the application <strong>of</strong> international human rights instruments
in Pacific courts and legislative changes can be attributed to a range <strong>of</strong> factors.
These include increasing globalisation, a greater commitment to constitutional
equality, greater gender awareness and increased education and awareness programs
undertaken by judicial <strong>of</strong>ficers including judges, magistrates, lawyers and legal rights
training <strong>of</strong>ficers. Projects have been run by the Pacific Regional Human Rights
Education Resource Team [“RRRT”] and funded by the United Kingdom Department
for International Development [“UK DFID Pacific”]. One <strong>of</strong> the RRRT’s major
projects is the training <strong>of</strong> judicial personnel and support staff, police, government
law <strong>of</strong>ficers and legal practitioners in human rights and gender equality in order to
increase the possibility <strong>of</strong> the application <strong>of</strong> human rights norms in the courts.
Further, with increasing pressure from the international community and human rights
groups, Pacific Island nations will continue to feel the obligation to implement
international human rights conventions into domestic legislation as well as applying
them in the courts.
109

CEDAW Country Ratification Report
Pakistan
Ratification
Pakistan acceded to CEDAW on 12 March 1996.
Declaration
The accession by Pakistan was subject to the following declaration: “The accession
by [the] Government <strong>of</strong> the Islamic Republic <strong>of</strong> Pakistan to the [said Convention] is
subject to the provisions <strong>of</strong> the Constitution <strong>of</strong> the Islamic Republic <strong>of</strong> Pakistan.”
Reservations
The Government <strong>of</strong> Pakistan also expressed the following reservation to the
Convention, “The Government <strong>of</strong> the Islamic Republic <strong>of</strong> Pakistan declares that it
does not consider itself bound by paragraph 1 <strong>of</strong> Article 29 <strong>of</strong> the Convention.” The
Government did not want to be obliged to take measures to eliminate discriminatory
legislation, especially those enacted under “the garb <strong>of</strong> Islamic laws”.
The governments <strong>of</strong> Austria, Finland, Germany, Netherlands, Norway, Denmark,
Sweden and Portugal submitted objections to the UN Secretary-General in relation to
Pakistan’s declaration and reservation. They argued in their objections and noted that
the general and unspecified nature <strong>of</strong> Pakistan’s declaration and reservation caused
ambiguities in relation to its obligations under CEDAW. In particular the failure to
apply the Convention to national law indicates that the Government <strong>of</strong> Pakistan is not
committed to the object and purpose <strong>of</strong> the Convention. The various governments
recommended that Pakistan’s declaration and reservation should not be given effect.
They argued that it conflicted with the principle <strong>of</strong> international law which states
that reservations incompatible with the object and purpose <strong>of</strong> a treaty should not be
permitted.
Impact
The Constitution <strong>of</strong> Pakistan 1973 [‘the Constitution”] does not address the
incorporation or implementation <strong>of</strong> international treaties, and obligations and treaties
are not considered part <strong>of</strong> domestic law unless there is an Act <strong>of</strong> Parliament. This
was reinforced by the Supreme Court <strong>of</strong> Pakistan which held that treaties can only be
“enforced as law when legislation is made by the country through its Legislature”.
Hence the courts are not bound by international agreement and cannot take notice
<strong>of</strong> violations <strong>of</strong> such agreements unless they have been incorporated into domestic
legislation. Therefore initially, consideration <strong>of</strong> treaty obligations was not within the
jurisdiction <strong>of</strong> the Pakistani courts, however a 1993 decision in Karachi held that
international law “may be accommodated in the municipal law even without express
legislative sanction provided they do not run into conflict with Acts <strong>of</strong> Parliament”.
If there is a conflict however, the Court has held that the “sovereignty and the integrity
110

<strong>of</strong> the Republic and the supremacy <strong>of</strong> the constituted legislature in making laws
should not be subject to external rules except to the extent legitimately accepted by
the constituted Legislature themselves”.
Further, as CEDAW cannot be the sole basis <strong>of</strong> a legal claim, the guarantee <strong>of</strong> equality
and non-discrimination rests with the 1973 Constitution. Recourse is especially made
to Article 25, which ensures that:
1. All citizens are equal before the law and are entitled to equal protection <strong>of</strong> the
law.
2. There shall be no discrimination on the basis <strong>of</strong> sex alone.
3. Nothing in this Article shall prevent the State from making any special provision
for the protection <strong>of</strong> women and children.
There is difficulty though in challenging statutes that invoke Islamic laws and
principles because Article 2A <strong>of</strong> the Constitution also provides that legislation must
be in conformity with the injunctions <strong>of</strong> Islam.
The case <strong>of</strong> Humaira Mehmood v the State and others 1999 P. Cr. R. 542 [Lahore]
however, which cited Article 16 <strong>of</strong> the Convention and used Article 25 <strong>of</strong> the
Constitution to support its main argument, provides evidence <strong>of</strong> the reliance and role
<strong>of</strong> Article 25. This case involved a woman who married without the consent <strong>of</strong> her
parents. Her parents forced her to sign a pre-dated marriage contract, which they used,
with the collaboration <strong>of</strong> the police, to file a case under the Zina (adultery) Ordinance.
The Court cited a violation <strong>of</strong> Article 25 and referred to Pakistan’s obligations under
Article 16 <strong>of</strong> CEDAW. It stated that Pakistan failed to comply with its commitment
to ensure equality between the sexes and to eliminate discrimination against women
in matters relating to marriage, especially those in relation to removing impediments
to the right to freely enter into marriage and to choose a spouse. The judge further
criticised societal traditions and culture that discriminate against women arguing that
they are contrary to Islam, the domestic law and international obligations.
The Pakistan Government has undertaken a number <strong>of</strong> initiatives in response to
CEDAW. In August 1998, Pakistan’s Prime Minister launched the National Plan
<strong>of</strong> Action (“NPA”), which established a “set <strong>of</strong> priority actions formulated to help
achieve the agenda for the empowerment <strong>of</strong> women in Pakistan”. The NPA was
drafted pursuant to the commitment made in the Fourth World Conference on
Women in 1995. It adopted the framework <strong>of</strong> the Beijing Platform for Action and
incorporated into the twelve critical areas <strong>of</strong> concern identified the relevant articles
<strong>of</strong> CEDAW.
111
CEDAW Country Ratification Report: Pakistan

CEDAW Country Ratification Report: Pakistan
An Ordinance in July 2000 created the National Commission on the Status <strong>of</strong> Women.
Although it does not mention CEDAW specifically, it lists as one <strong>of</strong> the functions <strong>of</strong>
the Commission the review <strong>of</strong> all laws, rules and regulations affecting the status and
rights <strong>of</strong> women and initiation <strong>of</strong> legislative reform to eliminate discrimination, in
accordance with the Constitution and the obligations under international covenants
and commitments.
Further, CEDAW was specifically mentioned as one <strong>of</strong> the guiding principles <strong>of</strong> the
28 April 2001 draft <strong>of</strong> the National Policy for the Development and Empowerment
<strong>of</strong> Women prepared by the Ministry <strong>of</strong> Women and Development. However, the final
version launched on 8 March 2002 deleted this reference and substituted a more
general phrase, “universally-recognised rights and responsibility-based approach”.
This national policy was launched as a statement <strong>of</strong> intent by the Government to
specify how it intended implementing the development and empowerment <strong>of</strong> women.
It was identified as an overall operating framework to include a gender perspective
in all national policies and plans.
Pakistan’s initial report to the CEDAW Committee was due in April 1997 and the
second report due in April 2001. Pakistan has not complied with any <strong>of</strong> its reporting
obligations. It stated, however, that the final draft <strong>of</strong> the initial report has been
submitted to the Pakistan Mission in New York and that it is preparing a supplement
to update the initial document before it reports to the CEDAW Committee.
Finally, the main challenge for CEDAW in Pakistan lies in finding ways to overcome
the reliance on the Constitution and current national laws as the over-arching
framework for the elimination <strong>of</strong> discrimination against women. Increased advocacy,
especially for law and policy-makers, judges, lawyers and NGOs on international
law and on the Convention’s principles and obligations will greatly assist in the
development <strong>of</strong> a new way <strong>of</strong> thinking on the relationship between CEDAW and
domestic laws.
112

Status <strong>of</strong> Ratification <strong>of</strong> CEDAW and its Optional Protocol
* The following is the <strong>of</strong>fical UN list <strong>of</strong> countries in the wider Asia Pacific Region
As at November 2006:
COUNTRY CEDAW CEDAW-Op
Eastern Asia
1. China 04 Nov 1980
2. Democratic People’s
Republic <strong>of</strong> Korea 27 Feb 2001 a.
3. Japan 25 Jun 1985
4. Mongolia 20 Jul 1981 28 Mar 2002
5. Republic <strong>of</strong> Korea 27 Dec 1984 18 Oct 2006 a.
South-central Asia
1. Afghanistan 05 March 2003 a.
2. Bangladesh 06 Nov 1984 a. 06 Sep 2000
3. Bhutan 31 Aug 1981
4. India 09 Jul 1993
5. Iran Islamic Republic <strong>of</strong>
6. Kazakhstan 26 Aug 1998 a. 24 Aug 2001
7. Kyrgyzstan 10 Feb 1997 a. 22 Jul 2002
8. Maldives 01 Jul 1993 a. 13 Mar 2006 a.
9. Nepal 22 Apr 1991 18 Dec 2001 s.
10. Pakistan 12 Mar 1996 a.
11. Sri Lanka 05 Oct 1981 15 Oct 2002 a.
12. Tajikistan 26 Oct 1993 a. 07 Sep 2000 s.
13. Turkmenistan 01 May 1997 a.
14. Uzbekistan 19 Jul 1995 a.
South-eastern Asia
1. Brunei Darussalam 24 May 2006 a.
2. Cambodia 15 Oct 1992 a. 11 Nov 2001 s.
3. Timor-Leste 16 Apr 2003 a. 16 Apr 2003 a.
4. Indonesia 13 Sep 1984 28 Feb. 2000 s.
5. Lao People’s Democratic
Republic 14 Aug 1981
6. Malaysia 05 Jul 1995 a.
7. Myanmar 22 Jul 1997 a.
8. Philippines 05 Aug 1981 12 Nov 2003
9. Singapore 05 Oct 1995 a.
10. Thailand 09 Aug 1985 a. 14 Jun 2000
11. Vietnam 17 Feb 1982
113

Status <strong>of</strong> Ratification <strong>of</strong> CEDAW and its Optional Protocol
COUNTRY CEDAW CEDAW-Op
Western Asia
1. Armenia 13 Sep 1993 a. 14 Sep 2006 a.
2. Azerbaijan 10 Jul 1995 a. 01 Jun 2001
3. Bahrain 18 Jun 2002 a.
4. Cyprus 23 Jul 1985 a. 26 Apr 2002
5. Georgia 26 Oct 1994 a. 30 Jul 2002
6. Iraq 13 Aug 1986 a.
7. Israel 03 Oct 1991
8. Jordan 01 Jul 1992
9. Kuwait 02 Sep 1994 a.
10. Lebanon 21 Apr 1997 a.
11. Oman 07 Feb 2006 a.
12. Qatar
13. Saudi Arabia 07 Sep 2000
14. Syrian Arab Republic 28 Mar 2003 a.
15. Turkey 20 Dec 1985 a. 29 Oct 2002
16. United Arab Emirates 06 Oct 2004 a.
17. Yemen 30 May 1984 a.
Oceania
1. Australia 28 Jul 1983
2. New Zealand 10 Jan 1985 07 Sep 2000
Melanesia
1. Fiji 28 Aug 1995 a.
2. Papua New Guinea 12 Jan 1995 a.
3. Solomon Islands 06 May 2002 06 May 2002
4. Vanuatu 08 Sep 1995 a.
Micronesia
1. Kiribati 17 Mar 2004 a.
2. Marshall Islands 02 Mar 2006 a.
3. Micronesia (Federated
States <strong>of</strong>) 01 Sep 2004 a.
4. Nauru
5. Palau
114

COUNTRY CEDAW CEDAW-Op
Polynesia
1. Cook Islands 11 Aug 2006 a.
2. Samoa 25 Sep 1992 a.
3. Tonga
4. Tuvalu 06 Oct 1999 a.
*a: date <strong>of</strong> assent
*s: date <strong>of</strong> signing
Status <strong>of</strong> Ratification <strong>of</strong> CEDAW and its Optional Protocol
115

Collation <strong>of</strong> Relevant International Instruments
* A lisit <strong>of</strong> the full titles <strong>of</strong> the following abbreviated human rights instruments is
located in the Abbreviations section on p 93.
NATIONALITY AND CITIZENSHIP
CEDAW
• A.2; A.15(1) & 15(4) – general provisions on non-discrimination & equality
before the law
• A.9 – rights to acquire, change or retain nationality (including during marriage);
rights <strong>of</strong> children
UDHR
• A.7 – equality before and under the law
• A.10 – fair and public hearing in determining rights and obligations
• A.15 – right to a nationality & shall not be arbitrarily deprived <strong>of</strong> his/her
nationality, nor denied the right to change nationality
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in enjoyment
<strong>of</strong> civil and political rights
• A.24 – rights <strong>of</strong> child to be registered and acquire a nationality
• A.26 – equality under and before the law/equal protection clause
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
CRC
• A.2 – state obligation <strong>of</strong> non-discrimination and equal protection
• A.7 – right to registration and nationality
• A.8 – right to preserve his/her identity
116

FAMILY LAW
1. Marriage and custom
CEDAW
• A.2 (e) & 2(f) - general provisions on non-discrimination
• A.5(a) – gender stereotypes embodied in custom
• A.9 – nationality
• A.16.1(a) – right to enter marriage
• A.16.1(b) – right to choose spouse and full consent
UDHR
• A.2 – life, liberty and security <strong>of</strong> the person
• A.5 – cruel, inhuman or degrading treatment or punishment
• A.7 - equality before and under the law
• A.10 - fair and public hearing in determining rights and obligations
• A.16 – right to marry & found a family; equal rights during marriage and at
dissolution
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in enjoyment
<strong>of</strong> civil and political rights
• A.7 – no one shall be subject to torture or cruel, inhuman or degrading treatment
• A. 9 – everyone has the right to liberty and security <strong>of</strong> person
• A.12 – right <strong>of</strong> liberty <strong>of</strong> movement and freedom to choose residence
• A.14 – equality before courts and tribunals with respect to rights and obligations at
law
• A.26 - equality under and before the law/equal protection clause
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
• A.10 – family protection, marriage, childcare benefits, protection <strong>of</strong> children
• A.16(b) & 16(c) – right to freely choose spouse & same rights and responsibilities
during and upon the dissolution <strong>of</strong> marriage
DEVAW
• A.4 – states obligation to condemn violence against women and not use custom,
tradition or religious consideration to avoid these obligations
2. Divorce
CEDAW
• A.1, 2(f), 5(a) - general provisions on non-discrimination
• A.15 –particularly 15(4) with respect to freedom <strong>of</strong> movement
• A.16.1(c) – same rights and responsibilities during and upon the dissolution <strong>of</strong>
marriage
117
Collation <strong>of</strong> Relevant International Instruments

Collation <strong>of</strong> Relevant International Instruments
UDHR
• A.2 – life, liberty and security <strong>of</strong> the person
• A.7 - equality before and under the law
• A.10 - fair and public hearing in determining rights and obligations
• A.13 – right to freedom <strong>of</strong> movement and residence within the borders <strong>of</strong> each
state
• A.16 - equal rights during marriage and at dissolution
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in
enjoyment <strong>of</strong> civil and political rights
• A.7 – no one shall be subject to torture or cruel, inhuman or degrading treatment
• A. 9 – everyone has the right to liberty and security <strong>of</strong> person
• A.12 – right <strong>of</strong> liberty <strong>of</strong> movement and freedom to choose residence
• A.14 – equality before courts and tribunals with respect to rights and obligations
at law
• A.23 – family protection, right to marry, rights and obligations during marriage
and at dissolution
• A.26 - equality under and before the law/equal protection clause
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
• A.11 – right to an adequate standard <strong>of</strong> living for oneself and family
3. Custody
CEDAW
• A.2; A.5; A.15 - general provisions on non-discrimination, custom & equality
before the law
• A.13 – economic and social life – family benefits, financial credit
• 16 (d) – best interests <strong>of</strong> the child;
• 16(f) - guardianship, wardship, trusteeship
UDHR
• A.7 - equality before and under the law
• A.10 - fair and public hearing in determining rights and obligations
• A.25 – right to standard <strong>of</strong> living adequate for health and well-being <strong>of</strong> herself
and family; motherhood and childhood are entitled to special care and assistance.
All children, whether in or out <strong>of</strong> wedlock, shall enjoy the same social protection
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in
enjoyment <strong>of</strong> civil and political rights
• A.14 – equality before courts and tribunals with respect to rights and obligations
at law
• A.24 – rights <strong>of</strong> child to be registered and acquire a nationality
118

• A.26 - equality under and before the law/equal protection clause
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
• A.10 – family protection, marriage, childcare benefits, protection <strong>of</strong> children
• A.11 – right to an adequate standard <strong>of</strong> living for oneself and family
CRC
• A.2 – state obligation <strong>of</strong> non-discrimination and equal protection
• A.3 – best interests <strong>of</strong> the child with respect to decision-making, care and
protection, rights and duties <strong>of</strong> parents, legal guardians…
• A.4 – state obligation to implement legislative, administrative or other measures
for realisation <strong>of</strong> the Covenant
• A.18 – recognition <strong>of</strong> the principle that both parents have common
responsibilities in upbringing and development <strong>of</strong> the child; state assistance;
child-care services for working parents
4. Property rights – Inheritance and Succession
CEDAW
• A.2(f); A.3; A.5; A.15 - general provisions on non-discrimination; custom &
equality before the law
• A.13(1) – family benefits
• A.14 – rural women
• A.16 (h) – ownership, acquisition, management, administration, enjoyment and
disposition <strong>of</strong> property
UDHR
• A.7 - equality before and under the law
• A.10 - fair and public hearing in determining rights and obligations
• A.17 – right to own property, no one shall be arbitrarily deprived <strong>of</strong> her property
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in
enjoyment <strong>of</strong> civil and political rights
• A.26 - equality under and before the law/equal protection clause
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
• A.5 - no state, group or person may restrict the rights and freedoms outlined in
the Covenant
119
Collation <strong>of</strong> Relevant International Instruments

Collation <strong>of</strong> Relevant International Instruemnts
LABOUR LAW
1. Workplace harassment
CEDAW
• A.2; A.5(a) – general provisions on non-discrimination
• A.11 – particularly 11(f) – right to protection and health safety
UDHR
• A.8 – right to an effective remedy by competent national tribunals
• A.23 – right to work, free choice <strong>of</strong> employment and just and favourable
conditions <strong>of</strong> work
ICCPR
• A.7 – no one shall be subject to torture or to cruel, inhuman or degrading
treatment
ICESCR
• A.7 (b) – right to enjoyment <strong>of</strong> just and favourable conditions <strong>of</strong> work, including
safe and healthy working conditions
DEVAW
• A.4 (c) - states should exercise due diligence to prevent, investigate and in
accordance with national legislation punish acts <strong>of</strong> violence against women,
whether those acts are perpetrated by the State or private citizens
2. Working age
CEDAW
• A.2; A.5 - general provisions on non-discrimination
• A.11 – employment provisions
• A.13 – non-discrimination in economic and social life
UDHR
• A.7 – equality before and under the law
• A.23 – right to work, protection against unemployment
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in
enjoyment <strong>of</strong> civil and political rights
• A.26 - equality under and before the law/equal protection clause
ICESCR
• A.3 - state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
3. Wage discrimination
CEDAW
• A.2; A.15 - general provisions on non-discrimination
• A.11 - employment provisions
• A.13 - non-discrimination in economic and social life
120

UDHR
• A.7 – equality before and under the law
• A.23(2) – equal pay; 23(3) just and favourable remuneration
ICCPR
• A.2 – non-discrimination clause; right to effective remedy
• A.26 - equality under and before the law/equal protection clause
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
• A.7(a) – right <strong>of</strong> everyone to enjoyment or just and favourable conditions <strong>of</strong> work,
including fair wages, equal remuneration and equal conditions <strong>of</strong> work
4. Childcare
CEDAW
• A.11 (2)(c) - necessary supporting social services to enable parents to combine
family obligations with work responsibilities.
UDHR
• A.25 - right to standard <strong>of</strong> living adequate for health and well-being <strong>of</strong> herself and
family; motherhood and childhood are entitled to special care and assistance. All
children, whether in or out <strong>of</strong> wedlock, shall enjoy the same social protection
ICESCR
• A.3 – state obligation to ensure equal right <strong>of</strong> men and women in enjoyment <strong>of</strong>
economic, social and cultural rights
• A.5 – no state, group or person may restrict the rights and freedoms outlined in the
Covenant
• A.7(a) – right <strong>of</strong> everyone to enjoyment or just and favourable conditions <strong>of</strong> work,
including fair wages, equal remuneration and equal conditions <strong>of</strong> work
CRC
• A.18 – recognition <strong>of</strong> the principle that both parents have common responsibilities
in upbringing and development <strong>of</strong> the child; state assistance; child-care services
for working parents
121
Collation <strong>of</strong> Relevant International Instruments

Collation <strong>of</strong> Relevant International Instruments
CRIMINAL LAW
1. Sexual assault / rape
CEDAW
• A.2; A.5(a), A.15(1); general provisions on non-discrimination and customs
UDHR
• A.7 – equality before and under the law
• A.8 - right to an effective remedy by competent national tribunals
• A.10 - fair and public hearing in determining rights and obligations
ICCPR
• A.3 – state undertaking to ensure the equal rights <strong>of</strong> men and women in enjoyment
<strong>of</strong> civil and political rights
• A.7 - no one shall be subject to torture or to cruel, inhuman or degrading
treatment
• A.9 - everyone has the right to liberty and security <strong>of</strong> person
• A.14 - equality before the courts and tribunals with respect to rights and obligations
at law
• A.26 - equality under and before the law/equal protection clause
DEVAW
• A.4 (c) - states should exercise due diligence to prevent, investigate and in
accordance with national legislation punish acts <strong>of</strong> violence against women,
whether those acts are perpetrated by the state or private citizens
CAT
• A.16 – each state party shall undertake to prevent acts <strong>of</strong> cruel, inhuman or
degrading treatment or punishment which do not amount to torture, when such
acts are committed by or at the instigation <strong>of</strong> or with the consent or acquiescence
<strong>of</strong> public <strong>of</strong>ficial or other person acting in <strong>of</strong>ficial capacity. (This line <strong>of</strong> reasoning
however may be a bit tenuous, unless the public <strong>of</strong>ficial has heard <strong>of</strong> the rapes and
<strong>of</strong>ficially sanctions them, or ignores them.)
122

Notes

Notes

Notes
Asia Pacific Forum on Women, <strong>Law</strong> and Development