WHITE PAPER: GENDER EQUALITY LEGISLATION IN MALDIVES

February 2014

Prepared by:Zarizana Abdul Aziz Consultant, Gender Equality Legislation

MALDIVES WHITE PAPER ON GENDER EQUALITY LEGISLATION Table of Contents Page Part I Background Part II The Need for Gender Equality A. Gender equality, development and democracy B. Gender equality and international obligations C. Gender equality, culture and Islamic principles and traditions a. Evolving social dynamics, culture and values b. Gender equality and Islam D. Gender Equality Laws in Comparative Muslim / Asian countries Part III Meaning of Gender Equality and Gender Discrimination a. Substantive equality b. Direct and indirect discrimination c. Sex versus gender d. Violence against women Part IV Provisions in the Proposed Gender Equality Law a. Definition of gender equality and gender discrimination b. Promotion of gender equality c. Unlawful gender discrimination d. Intersectionality and discrimination e. Violence against women f. Temporary special measure g. Conflict of laws h. Gender mechanism 1 2 2 3 5 5 6 7 9 9 11 11 12 14 14 14 14 14 15 15 15 15

MALDIVES WHITE PAPER ON GENDER EQUALITY LEGISLATION Part I: BACKGROUND The Constitution of Maldives passed in 2008 guarantees fundamental rights and freedoms to all persons including equality before the law, right to life, liberty and security, civil and political rights, economic social and cultural rights, right to work, right to education, right to participate in the political process, right to protect reputation and right to marry, amongst others. Article 17 prohibits discrimination on the basis of sex and empowers the Government to initiate special assistance (measures) to disadvantaged groups. The Constitutions aspirations however are not self-executable and need to be translated into lived reality of Maldivians. In fact, Article 18 foreshadows this by obligating the State to abide by the provisions of this Constitution, and to protect and promote the rights and freedoms provided therein. manifesto on Ensuring Womens Participation in Development.1 A national legislation on gender equality as well as a national action plan capable of rationalizing and articulating the measures necessary and desirable to translate the goal of gender equality between men and women as entrenched in the Constitution is required. This discussion paper focuses on the former (Gender Equality Legislation). This paper also incorporates the comments, issues and concerns raised during the two missions to the Maldives, the first from 13-17 April, 2013 (Francesco Tornieri, Principal Social Development Specialist, Asian Development Bank; Zarizana Abdul Aziz, GEL consultant; Fathimath Yumna, Local Advocacy Consultant; Mamdhooha Ali, Gender Ministry Focal Point) and the second The Governments commitment to gender equality is also evidenced by its

The manifesto describes the governments commitment to eliminate barriers to women joining the workforce, eliminate gender-based violence, increase womens political participation, enhance economic empowerment of women and protect women and the family from negative consequences of divorce.
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from 15 - 21 September 2013 (Patricia Rhee, Counsel, ADB; Zarizana Abdul Aziz, GEL consultant; Fathimath Yumna, Local Advocacy Consultant; Mamdhooha Ali, Gender Ministry Focal Point). During both these missions to the Maldives, the teams received enthusiastic support from government officials and other stakeholders for Gender Equality Legislation. The teams had candid discussions with diverse stakeholders (including Honourable Members of the Majlis, judges, lawyers, officials from various Ministries and the Treasury, the police, non-governmental organisations, refuge/shelter workers, industry actors (tourism), Island Councils and Committees, principals, teachers and imams) on the issues and problems which need particular attention and which will be addressed in this paper and the proposed Gender Equality Legislation. Part II THE NEED FOR GENDER EQUALITY A. Gender equality, development and democracy Development results in urbanization, mass education, economic

opportunities, occupational specialization and equality. In its 2012 World Development Report on Gender Equality and Development, the World Bank premises that gender equality is a core development objective in its own right. Greater gender equality can enhance productivity, improve development outcomes for the next generation, and make institutions more representative.2 Economic growth occurs most rapidly in countries with low disparities between women and men in health, education, employment, and property rights. Gender equality provides access to rights, liberty, opportunities and self-respect. It facilitates each person, man and woman, realising to the fullest his/her potential to effectively participate in society. In fact, womens full

2http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/EXTWDRS/EXTW

DR2012/0,,contentMDK:22999750~menuPK:8154981~pagePK:64167689~piPK:64167673 ~theSitePK:7778063,00.html
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participation in all aspects of social and economic and cultural life is especially critical in countries with small populations such as Maldives. Similarly, the 2013 human development index includes indices on health, poverty, gender inequality, education, social integration, command over resources, environment, international trade and capital, innovation and technology; again underlying the importance of gender equality to development.3 Democracy too is premised on gender equality. Democracy is incomplete without laws, policies and programmes that aim to reduce inequalities between men and women. The Constitution of Maldives, in prohibiting gender discrimination, recognizes the intrinsic and important relationship between, amongst others, gender and democracy, gender and development and gender and decent work. B. Gender equality and international obligations Maldives, as a Member State of the Organisation of Islamic Cooperation (OIC) is obliged to take cognizance of and initiative to meet the OICs Plan of Action for the Advancement of Women, adopted in 2008 which states, Women in the 57 Organisation of Islamic Conference (OIC) member states should be respected, developed, empowered, considered full active participants in social, political, cultural and economic spheres . In the OICs 2010 statement before the 65th session of the UN General Assembly, the OIC reiterated "its genuine desire to and hope that gender equality becomes a universally accepted norm in both Muslim and non-Muslim countries.4 Their [womens] legitimate claims and demands for equal treatment, access to opportunities, role in affairs of the state including policy and

The Index, a composite statistic of human development, was created by Pakistani economist Mahbub-ul-Haq and Indian economist Amartya Sen with the aim of focusing on people-centred policies (human well-being) for human development. 4 http://www.un.org/womenwatch/daw/documents/ga65/Org-of-IslamicConference.pdf
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decision making and protection from violence and abuse must be met if we are to make women equal partners in development.5 Further Maldives is a State party to a number of international legal instruments that call for and recognize the importance of gender equality. To date, Maldives has ratified all eight ILO fundamental conventions including the Convention Concerning the Equal Remuneration Convention 1951, which provides that men and women shall earn equal pay for equal work and the Discrimination (Employment and Occupation) Convention 1958, which provides that State parties agree to undertake programs to stem all discrimination (both race and sex-based) with respect to employment. Maldives is also a State party to both the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as key international instruments such as the Convention on the Elimination of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture and Inhuman and Degrading Treatment (CAT), Convention on the Rights of Persons with Disabilities (CRPD) and Convention of the Rights of the Child (CRC) and is obliged under the respective treaties to realize the human rights of all Maldivians. CEDAW specifically obligates the State adopt a policy to eliminate all forms of discrimination against women by amongst others, adopting appropriate legislative and other measures prohibiting discrimination against women; and taking all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (article 2). Article 5 further requires States to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Secretary-General of OIC Statement to the 4th Ministerial Conference on Womens Role in the Development of OIC Member States, Dec 2012
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Gender discrimination is also one of the most pervasive forms of discrimination that children face.6 The CRC requires States to ensure that both the boy child and girl child are afforded equal access to the rights stipulated in the convention. In relation to the ICCPR, Human Rights Committee (of the ICCPR) in General Comment 28 elaborated that the full effect of Article 3 of the ICCPR implies that all human beings should enjoy the rights provided for in the Covenant, on an equal basis and in their totality is impaired whenever any person is denied the full and equal enjoyment of any right. Consequently, States should ensure to men and women equally the enjoyment of all rights provided for in the Covenant.7 Article 2.2 of the ICESCR similarly obligates State parties to undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind including discrimination based on sex. C. Gender Equality, Culture and Islamic principles and traditions a. Evolving social dynamics, culture and values Maldives has a proud cultural heritage of womens active participation in public and political arena. Available records indicate that Maldivian women have always assumed significant roles in society. Women participated in islands affairs and adjudicated disputes. Maldivian women have also contributed in the economic sectors. Even today, there are several women who have assumed highly respected positions in society in the political, economic, education and other sectors.

See UNICEF, Gender Discrimination across the life cycle, available at http://www.unicef.org/sowc07/docs/sowc07_panel_1_1.pdf 7 General Comment No. 28 Equality of rights between men and women (article 3), (Sixty-eighth session, 2000), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 179 (29 Mac. 2000).
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The development of tourism and the industrialization of the fishing sector, however, resulted in work being centralized away from the inhabited islands. The shifting economic social and cultural dynamics calls for positive governmental response to meet these challenges. It also calls for the State to lead in evolving a Maldivian culture resilient enough to not merely withstand these changes but to thrive under these new realities; to create a safe and conducive environment for womens participation; to ensure that both men and women are positioned to take advantage of and access the opportunities presented under these realities; and to facilitate women and men working together toward development of the nation as full citizens. b. Gender equality and Islam Many demands for reform, justice and equality have historically been inspired by religious interpretations. Religious ideals have often contributed positively as an agent for change toward equality and justice; for example in combatting racial discrimination and in affording the weak and marginalized with protection. Religious ideals have also formed the basis of many an independence struggle. Islam has historically had a major role in reforming ethos, attitudes and values toward respecting men and womens equality which began with the introduction of a new paradigm of gender equality sweeping away reprehensible practices which includes denial of womens property ri ghts, perception of women as chattels (property), violence against women, forced marriage and female infanticide. The gender equality paradigm has since grown and been integrated with other ideas such as human rights. Gender inequality has no basis in the Quran. The Quran encourages the pursuit of individual (male and female) self-improvement and denies gender stereotyping. Each Muslim is encouraged, amongst others, to seek

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knowledge; charitable.8

work

toward

righteousness;

be

steadfast,

reverent

and

Indeed scholars are of the view that the religious trajectory for justice and equality as envisaged by the Quran never ends.9 Islam made the quest for education and knowledge the duty of every Muslim, male and female.10 Customs and discriminatory practices against women must give way education and knowledge. Gender equality fulfills the State obligation to regulate social relations (muamalat) as opposed to relations between man and God (ibadat). Changing social dynamics, lived realities, economic expediency, sustainable development, democratic ideals and contemporary ethos call for a legislative framework for gender equality. D. Gender equality laws in comparative Muslim/Asian countries Equal rights between men and women and/or prohibition of gender discrimination are entrenched in the constitutions of Muslim countries from Syria, Algeria, Tunisia, Morocco, Egypt, Turkey, Lebanon, Oman and Yemen to

This is reflected in many verses of the Quran, amongst them: - And their Lord hath accepted Of them, and answered them: "Never will I suffer to be lost The work of any of you, Be he male or female: Ye are members, one of another. (verse 3:195); If any do deeds Of righteousness, Be they male or female And have faith, They will enter Heaven, And not the least injustice Will be done to them. (verse 4:124); Whoever works righteousness, Man or woman, and has Faith, Verily, to him will We give A new Life, a life That is good and pure, and We Will bestow on such their reward According to the best Of their actions. (verse 16:97); For Muslim men and women, For believing men and women, For devout men and women, For true men and women, For men and women who are Patient and constant, for men And women who humble themselves, For men and women who give In charity, for men and women Who fast (and deny themselves), For men and women who Guard their chastity, and For men and women who Engage much in God's praise, For them has God prepared Forgiveness and great reward. (verse 33:35); "He that works evil Will not be requited But by the like thereof: And he that works A righteous deed whether Man or womanand is A Believersuch will enter The Garden (of Bliss): therein Will they have abundance Without measure. (verse 40:40). (Translations by Yusuf Ali). 9 For example, the Quran does not prohibit slavery but encouraged Muslims to free slaves. Pursuing the Quranic trajectory toward justice and equality, today, no Muslim should argue that slavery is acceptable or should be revived. 10 " Say (unto them, Muhammad), "Are those equal, those who know And those who do not know? (Qur'an (translation by Yusuf Ali), 39:9)
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Turkmenistan, Uzbekistan, Tajikistan, Pakistan, Bangladesh and Malaysia. Senegal and The Gambia are among Muslim countries in Africa that similarly provide for equality between men and women and/or prohibit discrimination. Muslim and Asian countries too have made efforts to provide legislative and policy frameworks to translate these constitutional guarantees to ensure the effective application of gender equality.11 These include Aceh (Indonesia) Women Empowerment and Protection of Women Qanun (2009); Albania Law on an Equal Gender Society (2004); Azerbaijan State Guarantees of Equal Right for Women and Men (2006); Bosnia and Herzegovina Law on Gender Equality in Bosnia and Herzegovina (2003); Japan Basic Law for Gender Equal Society (1999); Kosovo Law on Gender Equality (2004); Kyrgyzstan Republic Law on the Basics of State Guarantees of Gender Equality (2003); Lao PDR Law on the Protection and Development of Women (2004); Mongolia Law on Promotion of Gender Equality (2009); Nepal Act to Amend Some Nepal Acts for Maintaining Gender Equality, 2063 (2006); Philippines An Act Promoting The Integration Of Women As Full And Equal Partners Of Men In Development And Nation Building And For Other Purposes (1992) and Magna Carta on Women (2009); Singapore Womens Charter (1961); South Korea Gender Discrimination Prevention and Relief Act (1999), Equal Employment Act (EEA)(1987); Taiwan Gender Equity Education Act and Gender Equality in Employment Act (2004); Tajikistan Law of the Republic of Tajikistan On State guarantees of equal rights for men and women and equal opportunities in the exercise of such rights; Viet Nam Law on Gender Equality (2006). Indonesia, the most populous Muslim country, has a draft bill on Gender Equality that is making its way through the democratic process.

The Democratic Peoples Republic of Korea enacted the Sex Equality Law in 1946. This law is acknowledged to be one of the first Gender Equality Laws. Most recently, Asia and Europe has seen significant efforts on enacting Gender Equality Laws.
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Part III MEANING OF GENDER EQUALITY AND GENDER DISCRIMINATION a. Substantive equality At first glance, Maldives appears to enjoy gender equality. Women and girls are not prohibited from accessing amongst others, education, health, employment, financing and political participation. On closer analysis however, it can be seen that the aspirations of gender equality and prohibition of gender discrimination are not universally enjoyed. In order to better understand the effect of gender inequality and discrimination and how it affects participation, needs and realities of women, we must study each situation using a gender lens. A gender lens allows us to see the participation, needs and realities of women in each situation as they truly are. For example, although both men and women may equally apply for placements in higher education facilities, these facilities sometimes require travel. This may raises parents concerns over women and girls safety and therefore creates a reluctance to send girls for further education. Thus although no explicit discrimination may exist on paper, in effect true equality and access in attaining higher education is not achieved. A conceptualization of equality that is only concerned with equality in the law is known as formal equality. Formal equality deems equality is achieved as long as the law does not expressly treat men and women differently. It does not recognise nor account for legitimate differences between men and women. Neither does it look at inequality in opportunity or effect. Another conceptualization of equality is one that is premised on the misconceived notion of womens weakness that requires them to be protected from or unsuitable for certain activities, otherwise available to men. This is sometimes referred to as protectionist equality.

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This paradigm considers womens weakness as justification for unequal treatment between men and women. It drives and justifies inequality in the name of protectionism. In this conceptualization, women may be banned or dissuaded from holding certain jobs or offices that are considered too dangerous, demanding or just plainly unsuitable for women. For example, studies have found descriptive and substantive representations of women critical in ensuring inclusive and participatory democracy.12 However, while men and women are formally able to run as candidates in elections, in order to stand as a political candidate, a woman has to struggle against social perception of womens leadership abilities, perceived conflicts between womens role with political participation, cultural and structural constraints/perceptions and limited financial resources. The result is that women lose a varied range of opportunities due to exclusion. Formal equality and protectionist equality therefore are not the optimum model to bring about gender equality. Substantive equality on the other hand, recognises differences between men and women while at the same time affirming equality between men and women. It places an obligation on the State to correct the environment that disadvantages women and considers equality to have been achieved only when there is equality of opportunity, equality of access and equality of results. In this model, equality of opportunity requires the State to ensure its policies allow both men and women to apply for placements at higher institutions of learning; equality of access requires that women are provided with a safe environment (including from sexual violence and harassment); and equality of results requires the State to ensure that women in fact are able and do apply.13

In 1990, the United Nations recommended that State members adopt 30% political participation for women. 13 The reason women may not apply for studies in male dominated courses may also be the unavailability of job prospects for women upon graduation.
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The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which Maldives is a member, adopts the substantive model of equality and obligates member States to take action to ensure that they eliminate gender discrimination. If further notes that to accelerate achievement of de facto or substantive gender equality, a special temporary measure may be imposed; for example, a quota for women representatives in the legislative house(s) as well as Island and Atoll Councils, to neutralize the effect of some of the barriers to womens political participation.14 Temporary special measures must also include adequate training to imbue women with the knowledge and skills to fill quotas. Temporary special measures are not discriminatory but are measures to address discrimination. Article 17(b) of the Constitution similarly provides that special assistance given to disadvantaged groups will not be deemed as discrimination or preferential treatment. b. Direct and Indirect Discrimination At times what appears to be a neutral position, law, policy or measure, actually result in discrimination of women. Sometimes, women and girls are still unable to access the facilities and take advantage of the opportunities, not because there is direct or even intended discrimination but because certain rules or policies are such that it is difficult if not impossible for women to comply with. For example, promotion that is based on employees not taking more than three weeks leave in a year excludes women who take maternity leave from applying for the promotion. This constitutes indirect discrimination against women and girls and must be corrected. c. Sex versus gender It is important to differentiate between sex and gender. While sex is based on the biological differences between men and women, gender is a social

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Article 4, CEDAW
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construct that interprets these biological differences by assigning gender roles and stereotypes. The former is fixed and objective; the latter subjective and ever shifting based on evolving social and cultural values, norms and interpretations. For example, while giving birth is something only a woman can do (sexual difference), society assigns the role of care-giving to women (gender role). Gender equality is not about making men and women identical but about ensuring that both men and women can achieve their full potential. Any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, on a basis of equality of men and women, of fundamental rights and freedoms in the political, economic, social, cultural, civil or any other field15 must therefore be removed. This includes the obligation to modify social and cultural patterns of conduct of men and women that harbour prejudices and discrimination, and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.16 d. Violence against women Gender inequality is an underlying cause of violence against women and girls. Violence against women and domestic violence in particular, continues to be accepted and normalized in society. A UN survey across Bangladesh, Cambodia, China, Indonesia, Papua New Guinea and Sri Lanka reaffirms that violence against women is an expression of womens subordination and inequality in the private and public spheres.17
Article 1, CEDAW CEDAW article 5 17 Why do some men use violence against women and how can we prevent it, UNDP, UNFPA, UN Women and UNV (September 2013), available at http://asiapacific.undp.org/content/dam/rbap/docs/Research%20&%20Publications/womens_ empowerment/RBAP-Gender-2013-P4P-VAW-Report.pdf
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Nearly half reported using physical and or sexual violence against a female partner, and nearly a quarter admitted to having raped. The most commonly reported motivation for perpetrating rape was a sense of sexual entitlement. The studys findings also disclose that 72 to 97 per cent of men who raped were never punished, confirming that impunity remains a serious issue in the region. With regard to domestic violence, the Human Rights Committee in 2000 recognised that domestic violence can give rise to violations of the right not to be subjected to torture or ill-treatment under article 7 of the ICCPR.18 The Committee against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment similarly indicated that protection of victims of torture include protection of victims of gender-based violence including domestic violence.19 Efforts toward elimination of violence committed against women must recognize that violence against women is a form of structural violence. To this extent, the governments zero tolerance for violence against women and sexual harassment as contained in its manifesto on women is to be applauded.20 In order to effectively end it, positive customary and cultural gender roles must be preserved over negative ones. This must be supported through necessary policy, legislative and institutional framework, empowerment of women, cultivation of a culture of non-discrimination and elimination of all forms of discrimination against women.

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (Mac. 23, 1976). 19 Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007). 20 The Domestic Violence Act (3/2012) and Sexual Offences Bill (**any development of the Presidential veto?) are also examples of government initiatives in the right direction.
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Part IV PROVISIONS IN THE PROPOSED GENDER EQUALITY LAW The proposed Gender Equality Law will be a stand-alone law, congruent with the provisions of the Constitution. The law will promote gender equality and prohibit gender discrimination, including gender-based violence. A gender equality law will provide for the following areas: a. Definition of gender equality and gender discrimination Attention will be given to the definition of substantive gender equality and gender discrimination, both direct and indirect. Special provisions on pregnancy childbirth and breastfeeding must be excluded from the definition of unlawful discrimination. b. Promotion of gender equality The legislation will provide for promotion of gender equality. For example through consciousness-raising to promote the fundamental rights and freedoms in the political, educational, economic, social, cultural, civil and any other sphere of life without discrimination. It will guarantee women equal access and equal benefits to amongst others, education, professional training, retraining policies, financial and economic resources, job and business opportunities. c. Unlawful gender discrimination The legislation will make discrimination on the basis of gender unlawful, irrespective of whether gender forms the sole ground for discrimination or otherwise, irrespective of whether the discrimination is direct or indirect and irrespective of whether the acts are committed by State actors such as public authorities and their representatives, or private organisations and individuals. d. Intersectionality and discrimination
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The legislation will include the intersectionality of gender discrimination with for example, poverty and the intersectional impact of gender discrimination on groups that are already at risk or vulnerable such as women with disability or rural women. e. Violence against women The legislation will include provisions on gender-based violence against women and girls such as sexual harassment, domestic violence and sexual violence, acknowledging that the roots of violence against women can be found in gender discrimination. The law will also aim to correct bias, prejudice and discrimination in the policing, and prosecution of cases of violence against women as well a provide protection of and reparation to victims and survivors of violence. f. Temporary Special Measures

The legislation will provide for temporary special measures to facilitate the objective of gender equality where systemic biases exist for example to accelerate womens participation in public and political life. Temporary special measures are different from special measures. For example, maternity and breastfeeding benefits and facilities are considered special measures which are permanent. g. Conflict of Laws The legislation shall prevail in the event of conflict with any other law. This will avoid confusion and ambiguity in the event there are laws and regulations that incorporate gender discriminatory provisions. h. Gender Mechanism The legislation will explore the establishment of a special independent mechanism such as a commission, or a special unit within existing
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mechanisms to develop policies, plans and programmes on gender equality, undertake or commission researches, collect statistics disaggregated by sex and the gender dimensions of other intersections, receive, hear and provide remedies for complaints of gender discrimination and advise the Majlis on gender issues. This entity will also monitor, implement and review the effectiveness of the Gender Equality Law.

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