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In many countries that have acceded to the CEDAW Convention, roadblocks in terms of its usage and implementation within countries’ judicial systems persist. Difficulties include the persistence of discriminatory laws that run counter to the Convention, the absence of an explicit definition of discrimination against women in domestic legislation, and limited use of the principles of the Convention in judicial decision-making, due to a lack of awareness about CEDAW as an international human rights standard, and limited understanding of its application in domestic judicial proceedings.
In 2006, research on gender sensitivity in judicial decision-making in Thailand was conducted by the Law Faculty of Chiangmai University, with the support of UNIFEM and the Thai National Human Rights Commission (NHRC). Researchers looked at judgments of the Supreme Court from 1957 to the present to assess if gender biases existed in the interpretation and selection of laws used to make judicial judgments.
The research was carried out using a CEDAW lens, examining whether biases which derived from the judges’ cultural beliefs, values and practices precluded questioning the existence of discrimination, or overlooked gender perspectives, leading ultimately to violations of women’s human rights. The study focused in particular on cases of violence against women, and cases impacting the freedom of women.
The study’s findings revealed that gender insensitivity did indeed exist in Supreme Court judgments. For example, in rape cases, judgments tended to rely on whether wounds were caused, and the length of time between the assault and the victim’s report. If there were no obvious wounds or too much time was considered to have passed between the rape and the victim’s report, the testimony was considered less credible.
What was evident was that judicial judgments played an important role in reinforcing gender stereotypes, which could perpetuate discrimination in society. Gender responsive laws could lack ‘teeth’ to adequately protect women’s human rights if cultural beliefs were allowed to influence final judgments, resulting in improper interpretation and enforcement by the court.
With the help of the Judiciary Research institute, the findings of the report were subsequently shared with numerous judges and legal practitioners, to raise awareness about women’s human rights, CEDAW, and the extent to which discrimination persists in Thai society.
Naiyana Supapung, a lawyer, and member of the National Human Rights Commission has been a resource person at several judicial seminars on CEDAW. She said that the research has been helpful in terms of approaching judges on the issue, and breaking traditional mindsets that exist within the judicial system. “In Thailand, the judicial culture is generations-old, and the Supreme Court is the highest judicial decision-making body – their decisions set the precedent, and so it’s important to examine how these decisions are made.”
According to her, a majority of judges in Thailand rely on domestic law, not on international or constitutional law in their judgements – “they tend to be more rigid focusing on the letter of the law, over the ‘application of the law’.” The seminars help to show that using CEDAW can be a beneficial tool in court, a standard that requires that discrimination, whether direct or indirect, be a consideration in the judicial process. “CEDAW is also useful for legal practitioners,” she says, “public prosecutors for example can include reference to it in their case filings, which will require judges to take it into account.”
The National Human Rights Commission, which Naiyana is a member of, is an eleven-member commission, with five female members. The Commission was created in 2001 as required by the 1997 Thai Constitution and is an independent body with the role of investigating whether laws and the implementation of laws are discriminatory or violate human rights, and then making recommendations to government and parliament on legislative improvements. The Commission also hears complaints from people on alleged human rights violations, submitted through NGO and grassroots networks in the provinces.
Naiyana says that the NHRC’s involvement and interest in using CEDAW in the judicial system, especially to remove gender insensitivity in judicial decisions, stems from the different perspectives of human rights advocates compared to many judges in Thailand. “As human rights lawyers and advocates, we believe that human rights are non-negotiable. In order that this be applied however, judges cannot be fully impartial, because there will be cases that require additional considerations that need to take into account different aspects of a situation that could affect men and women completely differently.”
“In the Thai court system, you have to prove that you are innocent (rather than guilty), which causes huge problems for poor people, because they often simply cannot afford the high legal fees involved in obtaining evidence to prove their innocence. If judges are always impartial, the law will always come down harder on the poor, whether they are guilty or not.”
Naiyana also believes that there is a sore need for more female judges and female prosecutors to ensure that women’s rights are protected and that women do not face discrimination in court. At present, out of about 100 Supreme Court judges, only 10% are women. The situation is improving however in the lower courts she says, where about 25% of lower judges are women. “We have quite a lot of female lawyers,” she says, “at least 40% of practicing lawyers are women. But the big problem is that only 10% of them ever go to court!”
She says this is in part due to the continued existence of entrenched negative attitudes about women in law firms and government law offices. She herself faced discrimination when she first started practicing as a young lawyer at age 24. “I spent a lot of time making coffee, cleaning desks and writing letters for other male lawyers,” she laughs, “in fact my boss only sent me to court when he needed a postponement, because he said my looks would make the male judge agree.”
“These negative attitudes were also present even among lecturers at my university. One of my law professors, when he noticed that five women were sitting in the front row of his class, said that while we had ‘good determination’, we were wasting our time doing law, because it would only prepare us for typing letters and filing documents. He said he would never allow his daughter to study law.”
“But I’m thankful to this man,” she adds, “he is the reason I pushed myself to become a lawyer no matter what.”
The research findings have also prompted the development of a judicial training programme by the Teeranat Kanjanauksorn Foundation in cooperation with the Thai National Human Rights Commission and the Juvenile and Family Court. Training sessions are upcoming for two cohorts of judges from the Juvenile and Family Court, and the Office of the Attorney General. In addition, resource persons from women’s NGOs like the Foundation for Women, Friends of Women Foundation and Foundation for Women, Law and Rural Development plan to establish a Gender Justice Network of legal practitioners, to improve awareness about discrimination in the legal system, and how to better comply with CEDAW principles.
(January 2008)
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Using CEDAW to Improve Gender Sensitivity