Catalog

The Legal Challenge of Gender
ADB Review [ January - February 2004 ]

A nonbiased system for settling grievances must be established—but courts are only a part of it

By Arthur M. Mitchell (amitchell@adb.org)
General Counsel

Background

EQUAL RIGHTS It is critical to involve both women and men in the legal process

Viewpoints change. Analyses change. And we nip away at the intractable problems. But fundamental change can only occur when we ask ourselves to take a holistic view, encompassing a broader approach to development issues.

Poverty is no longer recognized as purely income-related, for example. Indicators have been broadened to include access to opportunities and basic human rights. The denial of these rights by public officials—due to ingrained cultural norms, discrimination, or neglect—leads to the failure to implement legislation intended to provide fair access as well as protection. This problem occurs in local and national, as well as political and administrative bodies. A nonbiased system for settling grievances must be established, but courts are only a part of it.

Legal empowerment as a continuing process uses the legal system to give disadvantaged and vulnerable groups more influence over critical issues in their lives by combining awareness, education, and action. It requires a broad, coherent strategy of complementary and integrated initiatives. These must come from both the top down, as well as the bottom up.

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Involving All Stakeholders

Take Nepal, for example. Increased knowledge of legal provisions on minimum wages might improve the bargaining power of poor women and thus their economic options. Assistance in obtaining birth registration and citizenship certificates for poor women improves their chances for control over property, education, or formal employment. And a better knowledge by police, judges, and prosecutors concerning women’s rights can ensure more protection in areas such as domestic violence, rape, or trafficking of women and children.

It is critical to involve both women and men in the process. In many pro-poor projects with a strong legal component, the limited knowledge and awareness of all stakeholders is most obvious. People often are unaware of relevant laws, rules, regulations, and administrative and other procedures. Rights to legal identity, inheritance, property ownership, and legal remedies against rape are in some cases recognized; and there are recent examples where these rights have been made more accessible to poor women (see story, p. 36). In many countries, however, laws in these areas are still nonexistent or inadequate. But even if laws are adequate, it is not enough protection if these just exist on paper. People need to know about the law and how to use it.

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Building Capacity

Nongovernment organizations are generally very good at informing people about their rights because of their efficient grassroots base. Various mediums can be used, from print to entertainment, to organized forums. But other barriers exist.

In many cases, deep-rooted social patterns of behavior and gender insensitivity undermine the application of relevant legislation, limiting the enforcement and ultimately protection of women’s rights, particularly among the poor.

One option currently being explored in Nepal involves not only bringing more women on to the police force, but also educating male officers about their duties in dealing with rape and domestic violence. The use of alternate dispute resolution mechanisms, legal aid, and paralegals also helps. This is but one example of how ADB assists in building institutional capacity to deal with gender issues. And changing institutions, over time, will change behavior and outcomes.

The challenge to achieve true gender equity is not simply making the law equitable and fair. Efforts must also focus on moving authorities beyond paying simple lip service to the law by ensuring that they disseminate knowledge of those rights, provide the tools to access them, and target both urban and rural poor women. In this way, the goals of poverty reduction and gender equality can be reached.

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