The right to equality and non-discrimination meets the right to culture

and the right to religious freedom

CEDAW article 5a ICCPR art. 18,3 ICCPR art. 27

Article 5.a

CEDAW article 5a and 2(f) duty for states parties to ”take appropriate measures” 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 superiority of either sex or on stereotyped roles”

ICCPR 18.3 and 27

Religion, article 18,3”…the right to manifest one’s religion or belifs..may be subject only to such limitations as are necessary to protect public safety, order, health, or morals. Or the fundamental rights and freedoms of others.”

Culture article 27,.”persons belonging to such minorities shall not be denied the right, in community with other…, to nejoy their own culture, to profess and practice their own religion or to use their own language”

ICCPR GRC 28, Equality of Rights between women and men, article 3

..States parties should ensure that

traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law

Constitutional law

South Africa Constitution, principle of equality embedded in Constitution, equality and custom on an equal footing

Tanzanian Constitution, prinicipe of equality embedded in Constitution, but extent and outreach of principle contested

Zimbabwean Constitution, principle of equality embedded in Constit. But claw back clause - customary law take precedence in family, inheritance matters

Indian Constitution, principle of equality embedded in constitution

Pakistan Constitution, principle of equality, Pakistan Islamic state

Norwegian Constitution, principle of equality not embedded in Constitution but in national law, Gender Equality Act

Equal property rights versus indigenous customary law/ religious law

Canada, Lavell case 1974/Lovelace v Canada Communication no. 24/197 (1986)

Tanzania, Pastory case 1992

– Women like men can sell clan land

– But, High Court of Tanzania

Zimbabwe, Magaya case 1999

– Eldest son of last marriage took precedence in inheritance case (but only in cases where death took place before the decesaced estate’s act!!!)

Property, maintenance con.

* South Africa: The Behe and Others v The magistrate, Khayllitsha and others. Constitutional Court CCT 49/03

Customary inheritance law seen as in conflic with equality principle in the Constitution

India, Shah Bano Begum case, 1985

Muslim woman awarded maintenance under the code of criminal procedure by the Indian Supreme Court. Ruling reversed by law

India, Mary Roy case,1986 Supreme Court held that Indian Succession Act providing equal inheritance applied to Christian women

Marriage, divorce, polygamy, etc

Pakistan Humaira Mehmood v state, 1999

– Husband of wife who married against her father’s will acquitted for zina an abduction. Police passed orders that contradicted article 4 and 35 of the Constitution

Pakistan, Samia Waheed case 1996.

– The majority ruled that marriage is a civil contract between two individuals and that the wali’s concent not is required

Citizenship

Unity Dow case

* Botswana High Court. With reference to the CEDAW the court struck down citizenship act where Botswana female citizens married to foreigners not could pass on citizenship to children

Religious dress in the public arena

Headscarfs:

Turkey constitutional court 1989, requirement of

”modern clothing”, room for covering, neck and hair.

ECHR: The Layla Saheen case – banning of headscarves in university not a breach of article 9 – right to religious freedom

German Constitutional Court (necessary in a democratic society, not unproportionate, margin of appreciation)

Headscarfs in the workplace revisitied

Indirect discrimination?

– Oslo Plaza hotel case

Intersectional discrimination?

Ban on headscarves Schools.

CEDAW Concluding comment to Turkey’s periodic report. UN Doc. A/60/38 (Ytrkey) para. 371, 372

371”The Committee is also concerned about the impact on girls and women of the ban of wearing headscarves in schools)

372 ”The Committee requests the State party to monitor and assess the impact of the ban on wearing headscarves…”

Headscarves in schools cont.

Denbigh High School case, UK House of Lords 2006

– Rejection of wearing jilbab not interference of the right to religious freedom

– Restriction objectively justified in relation to girl children:

– Baronesse Hail made reference to Frances Raday:..

Protection against violence Cultural defence

See Hellum Global equality norm meets Norwegian sameness.

Norwegian Supreme Court

India

Pakistan

International cases on equality, religion and culture

Human rights Committe

– Sandra Lovelace case - right to belong to an Indian community for a woman marrying an outsider

– Mauritius case – law that denied women to pass on recidency for husband, while women marrying a man automatically gained recidency discriminatory.

European court of justice

Kjeldsen/Busk Madsen and Pedersen v Denmark

Open Door and Dublin Well Woman v/Ireland

Three ways of understanding the direction of normative flow between the international,

national and local Raday :

* Hierarchy theory - the right to culture and religion does not trump the right to equalty. International law’s progressive approach

* National constitutional law – National discourse related to religion and culture often prevail, unless strong political support

Hellum: Attempt to understand state resistance in Norway

• Sameness and equalty – does equality assume cultural sameness? Nationalist undertones in national constitutional law that adopts international principles

• Holtmaat: CEDAW 5 a – from dialgogue to deadlock. Culture changeable