Lahore University of Management Sciences

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1 LAW 355 GENDER, JUSTICE AND LAW Fall, 2016 Instructor Neha Ali Gauhar Room No. TBD Office Hours TBD Telephone Ext Secretary/TA TBD TA Office TBD Hours Course URL (if any) Course Basics Credit Hours 4 Lecture(s) Nbr of Lec(s) Per Week Recitation/Lab (per Nbr of Lec(s) Per week) Week Tutorial (per week) Nbr of Lec(s) Per Week 2 Duration 110 minutes Duration Duration Course Distribution Core - Elective LAW Open for Student Category Close for Student Category COURSE DESCRIPTION This course examines the legal framework pertinent to the issues of gender and justice in Pakistan. An evaluation of feminist legal theories will be undertaken to identify gender discrimination and gender-based stereotypes perpetuated by the law, as well as discussions on the intersection between the concepts of race, gender and religion. Various domestic and international legal instruments that act as tools against gender inequality and disadvantage will be studied; which will include a detailed examination of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), After developing a formalistic understanding of international legal obligations, the second part of the course will examine the impact of gender discrimination in Pakistan that has led to widespread inhumane practices that include, but are not limited to, violence against women and other honour crimes of various sorts. COURSE PREREQUISITE(S)

2 None COURSE OBJECTIVES Understand the interplay between law and gender, and the influence of other constructions such as race, religion and class to gender equality Gain a comprehensive understanding of the Convention on the Elimination of all Forms of Discrimination against women (CEDAW) Use Gender as a framework to critically examine the applicability of various international and regional human rights mechanisms in Pakistan Critically reflect on the gender equality and women rights policies and practices in Pakistan Construct a way forward to bridge gaps between misogynistic mindsets and modern conception of justice vis à vis the law Learning Outcomes An ability to distinguish between formal and substantial equality An ability to analyze theoretical approaches to international human rights law and their application to gender issues in Pakistan An ability to examine and identify the social, political and legal elements that perpetuate gender inequality and violence against women An ability to carry out/conduct legal research individually, and in teams on gender based laws and legislation An ability to undertake/demonstrate written and oral legal analysis Grading Breakup and Policy Assignment(s) (Presentation): 15% Home Work: Quiz(s): 10% Class Participation and Attendance: 15% Midterm Examination: 20% Project: Final Examination: 40% Examination Detail Midterm Exam Yes/No: Yes Combine Separate: TBD Duration: TBD Preferred Date: TBD Exam Specifications: TBD

3 Final Exam Yes/No: Yes Combine Separate: TBD Duration: TBD Exam Specifications: TBD COURSE OVERVIEW Lecture Topics Introduction Feminist Legal Theory and Human Rights Law 3. Gender and International Human Rights Law Recommended Readings Hilary Charlesworth, Christine Chinkin and Shelley Wright, Feminist Legal Theory and Human Rights Law 85(4) (1991) The American Journal of International Law 613 Christine Goodwin v. the United Kingdom (application no /95), July 11, 2002 R.M. v Attorney General & 4 others (2010) eklr President of the Republic of South Africa and Another v Hugo (1997) 4 SA(1) Hilary Charlesworths What are women s International Human Right? in Rebecca J. Cook (eds) Human Rights of Women National and International Perspectives (UOP, 1993) Chirstine Chinkin, Marsha A. Freeman, Introduction in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (eds) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) 2-7 International Bill of Rights: UDHR(Articles 2,7), ICCPR (Articles 2,3,26) and ICESCR (Articles 2,3) Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v. Objectives/ Application An overview of the course, its contents and reading materials will be provided in this lecture. A discussion of the writings of early feminist who initiated the discourse on women s international human rights and laid out its foundations. Lectures 3-5 will examine international human rights law and regional human rights treaties through a gendered lens.

4 4. Gender and Regional Frameworks in line with International Law Mauritius. Communication No. 35/1978 Human Rights Committee General Comment 28 CESCR General Comment 16 and 20) CERD General Comment 14 European Convention for the Protection of Fundamental Rights and Freedoms 1950, Article 14 Abdulaziz, Cabales and Balkandali v United Kingdom, 94 ECHR (set.a) 1985 Protocol No.12 to the European Convention for the Protection of Fundamental Rights and Freedoms, 2000 American Convention of Human Rights, 1969, Article 1 Juridical Conditions and Rights of undocumented migrants, Inter- American Court of Human Rights, Advisory Opinion, OC-18/03, 17 September 2003, Inter-Am. Ct HR. (Ser. A) No. 18, 2003, paras African Charter on Human Rights and Peoples Rights (Banjul Charter), 1981, articles 1,2,3 and 18(3) Unity Dow v A-G of Botswana (1991) LRC (Const.) 575 LRC (Cons.) 62 (appeal) Arab Charter 2004 articles 3(1), 3(2) and Equality: Formal v. Substantial Andrew Byrnes, Article 1 of CEDAW in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (eds) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) Recommendation No. 25 (Temporary Special Measures) and No.28 (State Obligations) Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624

5 6. CEDAW 7. The Optional Protocol CERD General Comment No.25 (Gender, Women and Race) Kell v. Canada CEDAW Communication No. 19/2008 Convention on the Rights of Persons with Disabilities, 2006, Article 6 Chirstine Chinkin, Marsha A. Freeman, Introduction in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) General Assembly Declaration on the Elimination of All Forms of Discrimination Against Women (1967) (DEDAW) CEDAW, List of General Recommendations (skim through) Vishaka v. State of Rajasthan, Supreme Court of India, 1997 CEDAW Articles 2(c ) and 15(1) CEDAW Optional Protocol Articles 2-4, 8 CEDAW General Recommendation 28 Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007) Jane Connors Optional Protocol in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) This lecture will include an analysis of CEDAW s salient provisions and the role that General Recommendations play in their interpretation. Evaluation of how CEDAW s optional protocol can be used as a mechanism to challenge gender inequality and discrimination against women. 8. Reservations to CEDAW Jane Connors, Article 28 in in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) Ann Elizabeh Mayer Religious Reservations to the Convention of the Elimination of All Forms of This lecture will provide an analysis of legal and social implications of reservations to CEDAW in various national legal systems.

6 CEDAW and Pakistan Gender Equality in Pakistan 11. Legal Pluralism and Gender Equality Discrimination Against Women: What Do They Really Mean? in Courtney W. Howland (eds) Religious Fundamentalisms and the Human Rights of Women CEDAW General Recommendations 4, 20, 21 and 28 Committee on the Elimination of Racial Discrimination (CERD) Article 20 To initiate a comparative discourse on CEDAW reservations, students will be assigned to countries and will have to undertake research on the reservations by their assigned country before class. Shaheen Sardar Ali, Navigating Religion, Politics and Cultural Norms: the Arduous Journey toward Domestication of CEDAW in Pakistan 19 (2012) Journal of Peace Conflict and Development CEDAW Fourth periodic report (Pakistan) CEDAW/C/PAK/4 Concluding observations on the fourth periodic report of Pakistan, adopted by the Committee at its fifty-fourth session. CEDAW/C/PAK/CO/4 CEDAW shadow reports The Constitution of Pakistan 1973, Articles 8-28 Sibohan Mullally, As Nearly as Maybe: Debating Women s Human Rights in Pakistan (2005) SLS 14 Shaheen Sardar Ali, Gender, Human Rights in Islam and International Law, (KLI, 2000) Shaheen Sardar Ali, Conceptualizing Islamic Law, CEDAW, Human Rights in Pluralistic setting A Comparative Analysis of application of CEDAW in Bangladesh, India and Pakistan (UNIFEM, 2006) 245 Nasira Iqbal, Legal Pluralism in Pakistan and its Implications in An analysis of the dichotomy between Pakistan s legal structure and international obligations legal obligations under CEDAW will be undertaken. The role of formal legal system and traditional mechanism of justice including Panchayats and Jirgas in mainstreaming gender equality in Pakistan will be evaluated in the next two lectures.

7 12. Customary Law, Traditional Practices and Gender Equality Bennett J (ed), Scratching the Surface: Democracy, Traditions, Gender (Heinrich Boll Foundation, 2007) Shaheen Sardar Ali, Gender, Human Rights in Islam and International Law, (KLI, 2000) Abdullahi Ahmed An-Na im, State Responsibility Under International Human Rights Law to Change Religious and Customary Law in Rebecca J. Cook (ed) Human Rights of Women, National and International Perspectives Abdul Ghaffar v. Sultanat Khan PLD 2015 Peshawar 187 Sargand v. The State 2014 MLD 1464 Muhammad Murad v. The State 2012 PLD Midterm Examination 14. Violence against Women (International Context) Chistine Chinkin, Violence against Women in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) UN General Assembly, Declaration on Elimination of Violence against Women, 1993, Article 4(c) CEDAW, General Recommendations 12 and 19 Velasquez Rodriguez v. Honduras, Inter-American Court of Human Rights, 29 July 1998 Gonzalez et al v. Mexico, Inter- American Court of Human Rights, 16 November 2009 Opuz v. Turkey, European Court of Human Rights, App No.33401/01, 9 June 2009 Egyptian Initiative for Personal Rights and Interights v. Egypt African Commission Communication 323/2006 This lecture will map key events that led to the inclusion of gender-based violence within the international framework to address the violence against women through international obligations and state accountability.

8 15. Violence against Women (National Context) 16. Honour Killings Section 6, the Anti-Terrorism Acts (1997) The Criminal Amendment Act 2004 The Protection of Women (Criminal Amendment) Act 2007 The Protection against Harassment at the Workplace Act 2010 The Criminal Law (Amendment) Act (2010) The Criminal Law (Second Amendment) Act 2011 The Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011 Samar Minallah v. Federation of Pakistan, Const.P. No. 16/2004 Asma Jilani v The Government of Punjab PLD 1972 SC 139 Warriach S, Honour Killings and the Law in Pakistan in Welchman L and Hossain S(eds) Honour Crimes, Paradigms, and Violence Against Women (Oxford University Press, 2005) 81 Hussain M Take my Riches, Give me Justice: A Contextual Analysis of Pakistan s Honor Crimes Legislation (2006) 29 HJLG 223 Ghulam Mustafa and another v. The State ( 1983 PCrLJ 1712 Lahore) The Criminal Law (Fourth Amendment) Qisas and Diyat Ordinance 1991 Ghulam Yasin vs. The State (1994 PLD 392 Lahore) Muhammad Ayub vs. The State 1997 (PCrLJ 2056) Muhammad Ismail 1999 (PCrlJ 459) Sardar Muhammad v state 1997 (MLD 3045) CEDAW and Muslim Family Laws : In Search of Common Ground (Musawah, 2011) ICCPR Article 23 and General Comments 19, 28 Analysis of legislation that addresses violence against women in Pakistan. This lecture will draw on the religious and tribal dynamics of the honour killings that have shaped Pakistan s legal framework and examine the national legislation and legal doctrines that deal with penalizing honour killings.

9 17. Family 18. Rights of the Child (International Context) CESCR Article 10 and General Comment 16 CEDAW Article 16 CEDAW General Comment 21 Danial Latifi v. Union of India AIR 2001 SC 3958 Winsdor v. The United States 133 S.Ct.2675 Karin Yefet, The Constitution and Female Initiated Divorce in Pakistan (2011) HJLG The Dissolution of Muslim Marriages Act of 1939 The Muslim Family Laws Ordinance 1961 Children s Rights Convention, 1989, Articles 1, 2,3,5, 12, 24 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour African Charter on the Rights and Welfare of the Child, 1990 arts 1-4, 21 and 31. CEDAW Articles 10 and 16(2) Beijing Platform for Action-One of the 12 areas of focus is the girl child Frances Olsen, 'Children's Rights: Some Feminist Approaches to the United Nations Convention on the Rights of the Child' in Philip Alston, Stephen Parker and John Seymour (eds) Children, Rights and the Law (CP, 1992) Atala Riffo and Daughters v. Chile, Inter-Am. Comm. HR, Case , 2012 This lecture will address the objective standards of children s rights that have been enshrined in various International Covenants and other documents.

10 19. Rights of the Child (National Context) Rights of the Third Gender 22. Reproductive Autonomy The Child Marriage Restraint Act 1929 Pakistan Penal Code Section 310 Section 2 (vii) of The Dissolution of Muslim Marriages Act 1939 Section 5 of The Muslim Family Laws Ordinance 1961 the Criminal Law Amendment Act 2004 (Swara/Vani) the Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011 UDHR Article 6 ICCPR Article 16 CEDAW General Recommendation 27 and 28 Moscati, Maria Federica and Hari Puyal, The Third Gender Case, Decision of the Supreme Court of Nepal on the Rights of Lesbian, Gay, Bisexual, Transsexual and Intersex People (2009) 4(2) JCL 291. Dr. Muhammad Aslam Khaki & another Versus S.S.P. (Operation), Rawalpindi & others No. 43/2009 Naz Foundation v Government of BCT of Delhi and Others, WP(C) No.7455/2001 Suresh Kumar Koushal and another v NAZ Foundation and others R. Cook and V. Undurraga Article 12 in Marsha A. Freeman Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) 311 Convention on the Elimination of All Forms of Discrimination against Women, Articles 4 (2), 5 (b), 10(h), 11(2) 12, 13(1), 14 (2) (b). CEDAW General Comment 24, 27 and 30 Committee Economic, Social and Cultural Rights, General Comment 14, 11 August 2000, para 14, A discussion of the current situation of rights afforded to female children under state law with reference to Jirgas and tribal councils. This lecture will explore the role and problematics of gender identity in functioning as an impediment to justice. In doing so, it is also pertinent to examine the legal barriers faced by the third gender. Analysis of international and national legislation regarding reproductive rights.

11 Women Trafficking L.C. v Peru, Communication No. 22/2009, CEDAW/C/50/D/22/2009 Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) Christian Lawyers Association of South Africa v. Minister of Health 1998 (4) SA 1113 Minister of Health and Others v Treatment Action Campaign and Others, 2002 Section 338 of the Pakistan Penal code Reproductive Healthcare and Rights Act 2013 CEDAW Article 6 CEDAW General recommendations 19, 26 and 30 J.Chuang Article 6 in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) 169 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000 (Palermo Protocol) Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime UNHCHR, Recommended Principles and Guidelines on Human Rights and HumanTrafficking, 2002, UN Doc. E/2002/68/Add. 1 The Prevention and Control of Human Trafficking Ordinance 2009 CEDAW article 14 African Protocol Article 13, 14 This lecture will review the UN Protocol on Trafficking in Persons, comparing it with SAARC convention. Particular attention will be given to trafficking for the propose of prostitution.

12 Rural Women Women s participation in Public life Refugee Women Kell v. Canada CEDAW Communication No. 19 of 2008 Lisa Pruitt Migration, Development and the Promise of CEDAW for Rural Women 707 (209) Michigan Journal of International Law Ephraim v. Pastory [1990] LRC 757 Rono v. Rono and another Court of Appeal Kenya, Civil Appeal 66 of CEDAW Articles 1, 7, 8, 14 CEDAW, General Recommendations 23, 25, 28 and 30 Security Council Resolution 1325 on Women, Peace and Security Sarah Wittkopp Article 7 in Marsha A. Freeman, Chistine Chinkin, and Beate Rudolf (ed) The UN Convention on the Elimination of Discrimination against Women (OUP, 2012) 197 Jacobs v. Belgium, Human Rights Committee, Communication No. 943/2000, paras 9-10 Shilubana and Others v. S. Nwamitwa South Africa Constitutional Court 2008 ZACC 9 Look at Article 7 section of Pakistan s country report to CEDAW and shadow report. Roger Haines Gender related Persecution in Erika Feller, Volker Turk, Frances Nicholson (eds) Refugee Protection in International Law UNHCR s Global Consultations on International Protection (CUP, 2003) HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department (2010) UKSC 31 In re Fauziya Kasinga (USA, Board of Immigration Appeals 1996) NS (Social Group, Forced Marriage) 2004 UKIAT Evaluation of the legal guarantees in international and national law that protect the women s right to participate in politics and decision making. A discussion regarding gender discrimination in refugee policy and practices.

13 Challenges to Main Streaming Gender Equality Conclusion and Final Course review R v. Immigration Appeals Tribunal, ex parte Shah (1999) 2 All ER 545 Vienna Declaration and Platform for Action, 1993, para 18 Report of the Special Rapporteur on the promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism A/64/211 Hilary Charlesworth, Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations 18 (2005) HHRJ 1 Textbook(s)/Supplementary Readings