TIPPING THE SCALES OF GENDER INEQUALITY

The Beijing Platform of Action in 1995 has declared in bold and deft
strokes that equality between women and men is a matter of human rights and
a condition for social justice. It is also a necessary and fundamental prerequisite
for equality, development and peace. A transformed partnership based on
equality between women and men is a condition for people-centred sustainable
development.
This declaration verified a fact that has slowly been accepted by various
states since the 19th Century. Gender equality is crucial in nation-building and
development. However, forwarding the cause of gender equality cannot be
limited only between the legislature and the executive tasked to craft and
enforce laws. It is important that institutions that provide redress for rights
violated are equally kept abreast to these developments. The Judiciary, which
ensures the Rule of Law should also actively take part in forwarding cause. As
observed by Prof. Kenneth Dama of the University of Chicago Law School:
No degree of substantive law improvementeven worlds best
practice substantive lawwill bring the Rule of Law to a
country without effective enforcement. A sound judiciary is key
to enforcement.
Thus, the Judiciary through resolving controversies, in the sense of
protecting fundamental rights and liberties play a crucial role is safeguarding the
rule of law. Judges as agents of the Judiciary bears a heavy burden in ensuring
that their decisions are not only consistent with the law but also with the ends of
justice. Justice Jose B. Luis Reyes of the Philippines Supreme Court best
articulated this when he said that a judge has no other master but the law, no
other guide but conscience and no other aim but justice.

Women and the Law

The law is real and pervasive. Its consequences can be far-reaching. It
impacts peoples capacity to accumulate endowments, enjoy returns to such
endowments, access rights and resources, and act as free, autonomous agents
in society. Inequalities in endowments, access to resources and rights, social
(and household) status, voice and agency are perpetuated, codified, contested
and redressed through norms and the institutions established or resulting from
such norms, be they social or legal. Although these inequalities can affect both
women and men, women are lagging behind men in many fields. (Nussbaum,
Martha, (1999) "Women and equality: the capabilities approach", International
Labour Review, Volume 138, Number 3, 1999 , pp. 227-245(19); and Sen,
Amartya (2009) The Idea of Justice, Harvard University Press) Since the law is
real and there is an increasing juridification of life, the role of Judges in tipping
the scales of gender inequality becomes even more important.

Guideline on Judging with a Gender Perspective in Southeast Asia

The Guidelines presented in this Forum, provides an important insight as

to the process of how judges can actively contribute within the bounds of its
duties, to the cause of gender equality. It is hinged on the basic principles of
equality and non-discrimination as enunciated in various international human
rights treaties. Notably, the guidelines provide for a change in mindset among
judges on their preconceived views of gender roles and stereotypes. It cautions
the judges that these beliefs may cause a backlash to the developments in
gender equality.
Further, the guidelines, reassert the importance of increasing women
participation in the Bench. This proposal asserts the need of individuals who
have a better grasp of the struggles of women. It is submitted that women, more
often than not, understand the plight of other women better than a man.

Feminist Legal Theory and Practice

In supporting the guidelines, it is humbly submitted that the Feminist
Legal Theory and Practice (FLTP) should be considered in training judges. The
FLTP is a framework of engaging with the law as a double edged tool that has
both transformative as well as oppressive attributes. It seeks to dissect, engage
with and transform laws, legal practices and the systems that shape and inform
them from a feminist perspective grounded in human rights. FLTP training
conducted by the Asia Pacific Forum on Women, Law and Development (APWLD)
examined:
the starting point of FLTP, which is the recognition of the intersecting
oppressions of women because of their sex, ethnicity, caste, class, religion,
sexual orientation and other status;
evolving feminist theories and principles and human rights standards
that are used in the analysis of womens legal situations, taking into account
issues around feminism and human rights;
laws, as institutions, at the national and international level, for their role
in womens oppression and what they can contribute to addressing it. Given the
plurality of legal systems in many Asian and Pacific countries, customary and
religious laws are also examined;
theories, concepts and issues around feminism, human rights and laws
that are considered in framing, planning and implementing strategies. In
essence, FLTP challenges the traditional notion that law is a neutral, objective,
rational set of rules, unaffected by the perspective of those who possess the
power inherent in legal institutions. It seeks to address the social, cultural and
political contexts that shape legal systems and explores how the application of a
feminist perspective to the law can transform womens legal situations. It also
allows for greater understanding of gender, discrimination, law and human rights
that are crucial when identifying and discussing issues encountered by legal
advocates when addressing gender issues.
FLTP is comprehensive and effective in fully understanding the vicissitudes
of the gender inequality.

Conclusion
The Judiciary as the last bastion of democracy should take an active role in
ensuring that its decisions promote an inclusive society. It does not have to wait
for the legislature or the executive to draft and enforce new laws. It only needs a
sincere and loyal compassion to the ends of justice and ensuring that no one
gets left behind.