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by Malini Govinnage

Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)

One of the most widely ratified international treaties. What is the level of awareness of the treaty in Sri Lanka? It is very little, in spite of many awareness programs supported by International Aid Agencies and women's groups and by the National Committee on Women - the Advisory Council for the women's ministry.

CEDAW was adopted by the United Nations General Assembly in 1979 and ratified by Sri Lanka in 1981, much ahead than India which ratified the convention only in 1993. 166 states have either ratified or acceded to the convention by September last year.

There are some countries which have ratified CEDAW with reservations. This means that a country ratifies the convention subject to the proviso that they are not governed by a particular provision in the convention. The countries which often ratify the convention with reservation are Islamic countries that sometimes enter general reservations to say that they will interpret them according to their religion - Islam.

This treaty has been described as the International Bill of Rights for women. It is a comprehensive treaty on the rights of women and establishes legally binding obligations on the state parties to follow the legal standards set by it to end discrimination against women. Its goal is to achieve equality between men and women.

What is the equality this Convention seeks? It is not formal equality where women are treated on par with women under the law where the rights on paper are never made a reality. It does not also mean the protectionist mode of equality, where women are given equal rights but then discriminated against by reservations on the ground of being protected for their own good.

The equality that this convention seeks to secure for women is not equal rights but the right to be equal which means it is a corrective mode of equality.

While it recognises the differences between men and women, it realises that present position of women is due to centuries of discrimination. So, the convention aims to change these socially constructed differences. These differences are seen as weaknesses of women because the equality sought for is based on male standards which lead to further disadvantages and discrimination against women.

The convention covers civil, political, economic and cultural rights, extending from private to public life, while affirming the reproductive rights of women.

It focuses on culture and traditions which are the bastions of fundamentalist and patriarchal societies as forces giving rise to stereotyping of gender roles and intra-family relations. It provides a framework for government and international action to end discrimination against women.

CEDAW is also the acronym for the committee that monitors the implementation of the convention. States that have ratified the convention undertake to report before this committee and place before them steps taken and the progress made in implementation of the principles of the convention.

The initial report of a country is to be filed one year after the ratification and thereafter, every 4 years, a periodic report has to be submitted. According to Professor Savithri Goonesekere, a member of the Committee on the Convention on the Elimination of all forms of Discrimination against Women for the period 1999-2002, "Sri Lanka's reporting record has not been very good. The first report has not been taken seriously. It was considered to be short and scrappy and very inadequate by the committee. The second report was in 1992 and attempted to address some of the issues. However, the committee made certain concluding observations.

Unfortunately, there has been no effort to integrate the concluding observations into the policy planning process nor has there been any kind of distribution of this report" (Sthree Prabodha - newsletter of the Centre for Women's Research)

When a State has ratified an international convention, the courts in that State have right to use the convention as an aid in interpreting national law to conform to the provisions of it. Judges can base their decisions on international treaties like CEDAW.

But in Sri Lanka there has not been a single case where this has been done.

Although judges are using other international standards like covenants on civil and political rights, freedom of speech or the Convention on Torture, they have never used CEDAW to interpret the constitution.

There are two reasons for it. One is that gender has not been directly an issue in a single fundamental rights case. The other reason is that the lawyers just do not tend to use the instruments or do not tend to refer to them. So, there is no way that it comes into the process of law. Hence, it is important to conscientise lawyers and judges on the need of using this convention to interpret standards.

This is what the Supreme Court of India and high courts have done. There are two cases. One is Vishaka case. In 1997, the Supreme Court of India in Vishaka's case held that international covenants can be made use of by courts in India to interpret their laws and that by ratifying CEDAW, India has committed itself to an international standard of rights for women. Accordingly, there is an obligation on the Part of the State to provide women with sexual harassment free workplace. The other is Gita Hariharan's case in 1999. Here, the question was whether the mother of a Hindu minor could be the legal guardian during the lifetime of the father.

One weakness of the Convention was that it had no mechanism for private complaints. This was set right when the Optional Protocol to CEDAW was adopted by the General Assembly on October 6 1999. This came into force in December 2000.

The Optional Protocol to CEDAW binds only the states that have ratified it.

Since Sri Lanka ratified the Convention in 1981, a few legal measures have taken place in keeping with CEDAW. The most significant of these was the drawing up of a Women's Charter in 1993. This is based on CEDAW. The others are Amendments to the Penal Code in 1995, which have strengthened the law on rape and introduced sexual harassment as an offence.

The Women's Charter which was drawn up with Parliamentary approval, awaits adoption by an Act of Parliament. The Convention will be of legal significance to Sri Lanka, only when it is incorporated into the domestic legislation by an act of Parliament.

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