Article 36 of Mozambique’s Constitution provides that “men and women are equal before the law in all aspects of political, economic, social and cultural life.”
Women and Justice: Keywords
Article 44 of Cuba’s Constitution states that women and men enjoy equal economic, political, cultural, social and familial rights and that Cuba (the “State”) “guarantees that women will be offered the same opportunities and possibilities as men to achieve their full participation in the development of the country.” Article 44 further states that the State grants working women paid maternity leave before and after childbirth, and temporary work options compatible with their maternal function.
This law ratifies the UN treaty on the convention on Political Rights of Women (Convention on the Political Rights of Women open for signature on 31 March 1953) recognizing that everyone has a right to take part in the government of their country and recognizing women’s right to vote and participate in the political process of the country. This law gives the same rights to Indonesian women as is provided under the convention and protects those rights under Indonesian Law.
The applicant, a male, applied for a senior managerial position previously occupied by a woman. After undergoing a psychometric assessment, he was recommended for appointment. The recommendation was turned down “due to the gender imbalance at SMS level”. The applicant claimed that he had been unfairly discriminated against on the basis of his sex because the target, set by the Gauteng Provincial Legislature, did not comply with the provisions of the Employment Equity Act (EEA), 55 of 1998. The respondent contended that, although it had not adopted an equity plan, it had set itself a target of 50% females in senior management positions. The Court noted that when the second respondent took the decision not to appoint the applicant, there was great confusion regarding the actual gender balance at the senior management level. However, the Court was prepared to accept that, at the time, females filled only 29% senior management posts. The EEA requires that equity plans must provide objectives for each year, their duration, and procedures for evaluating their implementation. The Court noted that, in SA Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union as amicus curiae  11 BLLR 1025 (CC)), the Constitutional Court had confirmed that competent courts must ensure that validly adopted equity plans are applied lawfully. Apart from the fact that the respondent had no plan, it had no mechanism to track the levels of gender representation. The second respondent had applied the target without considering the panel’s reasons for its recommendation. Affirmative action had been applied ad hoc, in a haphazard, arbitrary, and random manner. The responsible official had applied a quota system and raised an absolute barrier, both of which were impermissible. The affirmative action measure applied by the respondents conflicted with both the Constitution and the EEA. Accordingly, the measure had unfairly discriminated against the applicant. The respondents were directed to appoint the applicant to the post concerned and pay him compensation equal to the difference between the salary he had earned and the salary he should have earned, with retrospective effect.
The Equal Opportunities Commission (the “Commission”), which is an entity formed pursuant to Hong Kong’s Sex Discrimination Ordinance, Chapter 480 (the “Ordinance”), brought a challenge against the Director of Education (the “Director”), alleging that the system for transferring students from primary to secondary school (the “SSPA System”) discriminated against students on the basis of sex in violation of the Ordinance. The discrimination affected both sexes, but it primarily affected females. There were three structural elements of the SSPA system that allegedly discriminated against students: (1) A scaling mechanism, which scaled the scores of all primary students in their school assessments to ensure that they could be fairly compared with scores given by other primary schools; (2) a banding mechanism, which banded all students into broad orders of academic merit; and (3) a gender quota, which ensured that a fixed ratio of boys and girls were admitted to individual co- educational secondary schools. Though the structural elements were facially neutral, they were being employed on a gender basis. The Director argued that there were legitimate differences between boys and girls at younger ages, which justified the SSPA’s contested elements and, therefore, the SSPA simply removed initial gender bias inherent in the system. The High Court of Hong Kong Special Administrative Region held that all three allegedly discriminatory elements of the SSPA system were in fact discriminatory and contrary to the Ordinance. The Court ordered—as requested by the Commission—that the Director eliminate sex discrimination against girls within a reasonable time and that a user-friendly mechanism be put in place to deal with and remedy complaints of sex discrimination by individual parents on behalf of their children.
The court declared the current gate pass regime, which required litigants to provide a photo identification when entering the court premises, unconstitutional, because it violates the open court principle by restricting court access to only parties to cases listed on particular day or parties who seek to inspect the record in their cases. The Court noted that the gate pass application would disproportionately affect the economically weak, inter alia, women and children, to access courts.
The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory. Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently. Using Article 41 and Article 50 of the Turkish Constitution, the Constitutional Court, however, ruled that the law is not discriminatory and does not violate the Constitution. Under Article 41, Turkey has the power to “take necessary measures” to ensure the “peace and welfare” of the family, specifically in regards to the protection of mothers and children. Article 50 allows women, and other protected groups, to enjoy “special working conditions.” The Court found that the goal of the Labour Law to protect both female workers and the family union aligned with these two Articles, and thus was neither discriminatory nor in violation of the Constitution.
Citing the prevalence of uterus prolapse in pregnant women in Nepal, the petitioner filed that the government should be responsible for providing infrastructures to support women’s reproductive health under Article 20 of the Interim Constitution of Nepal which guarantees the right to reproductive health for all women. The Court ruled that reproductive health was a right tied to all other basic human rights but that, unlike freedom of speech and others, it requires positive infrastructures to be upheld, therefore ordering that a bill be passed providing reproductive health services to pregnant women. In this ruling the Court emphasized that proactive measures must be taken to ensure that women, who face different societal and health challenges, are given the same rights as men; this marks an important distinction between guaranteeing rights and practicing equality.
The Court upheld a petition to quash a provision of the Nepalese Passport Act that requires women under the age of 35 to procure a letter of consent from a guardian before obtaining a passport. The Court ruled that the provision was contrary to Article 11 of the Constitution because it infringed on equal treatment between men and women, was contrary to the mandate for positive discrimination to ensure equality for women, and inhibited a woman’s right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Thus, the Court quashed this provision and directed the Ministry of Foreign Affairs to issue passports to Nepali women without a letter of permission, putting an end to a highly prejudiced practice that had prevented women from accessing education, employment, and cultural enrichment outside of Nepal.
The Forum for Women, Law and Development in Nepal petitioned the Supreme Court to revise a law allowing men to take second wives if their first wife is significantly ill or handicapped and gives consent. The Court found that this law was inconsistent with Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, and with international women’s rights conventions, including CEDAW. In its ruling, the court stated that a husband should care for a sick or handicapped spouse and that requiring consent could promote domestic violence. By taking action to change this law the Court showed a dedication to real reform based on the Constitutional mandate for gender equality, crucially recognizing that accepted traditional practices must be reappraised.
After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW. This ruling represents an important step in reevaluating widely accepted laws from a gender equality standpoint. In addition, the Court acknowledged that it was constitutional to employ positive discrimination to guarantee equal rights for women, allowing for proactive defense of women’s rights in Nepal.
A petition on behalf of the Forum for Women, Law and Development in Nepal called for revision of a law prohibiting dowries. The law imposed a much stricter sentence on the bride’s family than the grooms, making it inconsistent with the equal rights provisions in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court’s decision to revise the law, which cited earlier rulings based on Article 11, shows a continued dedication to transforming the Nepalese legal code in the interest of gender rights and equality.
A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.
A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.
A public defender challenged the constitutionality of Article 337 of the Civil Code, which stated that in domestic disputes, a judge could take into consideration the education, custom and conduct of both spouses when dealing with cases of cruelty, dishonest behavior or grave injury. He argued that such a law violated the constitutional right of equality before the law. The Constitutional Tribunal agreed in part and disagreed in part, holding that such considerations could only be examined when dealing with cases of grave injury.
Explaining that the right to marry or remarry is a fundamental right, the Court held that wills and testaments that required a woman to remain single or widowed were unconstitutional.
The Court was asked to examine the constitutionality of Article 34 of the Colombian Civil Code, which established the minimum age of marriage for women as 12, while the minimum age for men as 14. The Court struck the wording from the Civil Code that differentiated in age based on gender, and set the minimum age of marriage at 14.
The Court held that 4, while prima facie unconstitutional, is acceptable if done with the constitutional purpose of furthering the rights of women, considered a constitutionally-protected class, and not with the purpose of maintaining traditional societal roles. The Court held that "the special protection of women allows for discriminatory treatment with constitutional ends." The Court also affirmed that minors are a protected class, protected both by the Colombian Constitution but also by the international treaties to which Colombia is a signatory.
The Court held that existing legal provisions and international treaties that provide women with special rights and considerations were not in violation of the Colombian Constitution's equal rights provision. The Court reasoned that such provisions were not aimed at withholding rights from men, but instead were aimed at correcting any shortcomings in the rights owed to women.
The European Court of Human rights held that a Turkish Law preventing married women from keeping their own surname after marriage is unlawful discrimination on the basis of sex. As required under Turkish law, upon marriage Ms. Unal Tekeli took her husband’s last name. She continued to use her maiden name in her professional life and put it in front of her legal surname, but could not use her maiden name in official documents. She brought suit in the Turkish Courts requesting that she be able to use her maiden name and that the law was discriminatory, but her case was dismissed both at the trial court and upon appeal. After being dismissed, she brought suit in the European Court of Human Rights, alleging discrimination. The Court first determined that differential treatment did exist because under the law, married men were treated differently from married women. Next, it found that no objective and reasonable justification existed for such differential treatment. It acknowledged that Turkey has a goal of preserving the family unit, but noted that this goal was not defeated by allowing women to keep their surnames. Thus, preserving the family unit was not a justification for the unequal treatment of married men and married women. The Court held that the difference in treatment based on sex violated international law.
Ms. Tanbay Tuten, a university professor, was married and took her husband’s surname as required by law in 1992. She continued, however, to use her maiden name in her professional life, even though she could not use it in official documents. In 2007, she brought a proceeding in the Turkish Courts requesting that she be allowed to use only her maiden name, but was denied in the lower court and on appeal. Ms. Tuten brought her case to the European Court of Human Rights contending that the law is discrimination on ground of sex. The Court held that the difference in treatment on grounds of sex was in violation of Article 14 and Article 8 of the Convention and based its analysis on Tekeli v. Turkey.
The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.