Status of Arab Women Report Access to Justice for Women And

Economic and Social Commission for Western Asia

Status of Arab Women Report Access to Justice for Women and Girls in the Arab Region: From Ratification to Implementation of International Instruments E/ESCWA/ECW/2015/1

Economic and Social Commission for Western Asia

Status of Arab Women Report Access to Justice for Women and Girls in the Arab Region: From Ratification to Implementation of International Instruments

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Acknowledgements

This publication was prepared at the ESCWA Centre for Women (ECW) by Ms. Lana Baydas, First Social Affairs Officer, under the substantive guidance and overall supervision of Ms. Samira Atallah, Director. Ms. Baydas authored the study, drawing on background papers prepared for ECW by Mr. Mahmoud Kandil, Advisor at the Arab Human Rights Organization; Ms. Suha Oudeh, lawyer in Kuwait; and Mr. Nizar Saghieh, lawyer and Editor-in-Chief of Legal Agenda, jointly with Ms. Rana Saghieh, lawyer and researcher. Mr. Imad El Nehlawi, Administrative Assistant at ECW, provided research, administrative and logistical support.

The study benefitted from the invaluable contribution and constructive critiques of participants of an expert group meeting that was held at United Nations House (Beirut, 23- 24 September 2014) to discuss its preliminary findings. Ms. Lisa Majaj, of the University of Cyprus, provided meticulous peer review of the final draft and made concluding revisions to bring the study to its present version. 4

Table of contents

P.3 Acknowledgements

P.7 I. Introduction P. 7 A. Background and objectives P. 7 B. Scope and research methodology P. 9 C. Rationale: Why access to justice? P.11 D. Conceptualizing “access to justice”

P.15 II. The Right of Access to Justice in International and Regional Instruments P.15 A. Access to justice in international human rights treaties P.19 B. Obligations of States under international human rights treaties P.22 C. The right of access to justice in regional human rights frameworks P.23 D. Women’s right of access to justice in conflict and post-conflict situations

P.27 III. Access to Justice in National Legal Frameworks P.27 A. Access to justice in national constitutions P.31 B. Access to justice in national legislations

P.39 IV. Barriers to Arab Women’s Access to Justice P.39 A. Barriers at the institutional and procedural levels P.42 B. Barriers at the capacity level P.43 C. Barriers at the social level P.43 D. Other barriers

P.45 V. Addressing Barriers to Women’s Access to Justice: Strategies, Approaches and Good Practices P.45 A. Strategies adopted P.48 B. Holistic approach

P.51 VI. Conclusion P.51 A. Legislative frameworks P.51 B. Institutional and procedural frameworks P.52 C. Recommendations

P.54 Endnotes 5

P.58 Bibliography

List of figures P.12 1. The justice chain P.15 2. Access to justice elements P.34 3. The ratio of girls to boys in tertiary education versus the percentage of Arab women in the labour force

List of boxes P.16 1. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) P.16 2. Discrimination faced by women in seeking legal redress 6

“While both men and women face obstacles in accessing justice, women face different challenges and experience such challenges differently”

I. Introduction

A. Background and objectives economic, social and cultural rights in the region.9 Ensuring women’s rights plays an indisputable role in sustainable human The inability of women to challenge development.1 Yet Arab women discriminatory laws within their countries’ face persistent inequalities rooted in formal legal structures is one of the main discriminatory laws and institutions. 2 factors that contribute to gender disparity. Gender disparities in social, economic and Discrimination is clearly manifested in de political rights in the Arab region remain facto unequal protection before the law, as significant and widespread.3 Moreover, evidenced in discriminatory national legal multi-dimensional inequalities continue frameworks; and, subsequently, in unequal 10 to impede progress towards women’s access to justice. Discrimination is further empowerment in all spheres, whether compounded by the lack of institutional political, economic or social.4 Nor do mechanisms that would ensure proper principles of gender equality form an implementation of constitutional rights, and by integral part of the strategic approach the continued existence of contradictory laws to addressing discrimination in the Arab and legal provisions that discriminate against region. This is true despite the fact that most women, often merely for being women. Arab States recognize, in their constitutions as well as in their official international This study addresses the right of “access to commitments, the urgency to address justice” as enjoyed by women in the Arab gender inequality. region in the context of these intersecting factors. It examines available legal Arab States have legal obligations, as protection for women in the Arab region, as stated in voluntarily ratified international well as women’s ability to assert their rights instruments, that require them to through just, non-discriminatory judicial “protect, respect and fulfil” the rights processes. It assesses legislation, including of all individuals.5 Most Arab States constitutional rights, personal status codes have endorsed the Convention on the and labour codes, on issues and concerns Elimination of All Forms of Discrimination that impact women’s socio-economic and against Women (CEDAW),6 albeit with political development. Additionally, it reservations for the most part,7 and have examines the implementation of the right of recognized the principles of equality and access to justice, providing a comparative non-discrimination in their constitutions.8 overview of the principle of law (de jure) However, these principles have not versus its actual application (de facto). been fully reflected, normatively and procedurally, in national legal frameworks. B. Scope and research methodology The failure to implement principles of equality within the framework of law limits The study focuses on women in ESCWA women’s enjoyment of civil, political, member States. As such, the geographical

Status of Arab Women Report Introduction 8

scope of the study includes the following between men’s and women’s ability to countries: Bahrain, Egypt, Iraq, Jordan, access justice, as well as the socio-legal Kuwait, Lebanon, Libya, Morocco, the State obstacles and gaps facing women in of Palestine, Oman, Qatar, Saudi Arabia, the accessing justice. The background papers Sudan, the Syrian Arab Republic, Tunisia, focus on existing measures taken by the United Arab Emirates and Yemen. The Arab Governments to improve women’s study’s focus on women in the region enjoyment of the right of access to justice encompasses citizens and non-citizens, and in terms of availability, accessibility, includes refugees and migrant workers as adaptability and affordability. As such, well as women of minority groups. they provide critical analysis of the impediments and challenges, whether The study addresses women’s access to legal, institutional or structural, that justice in various strands of law, including women in the region face in accessing personal status code, criminal code, labour justice at the dimensional levels of code and laws combating violence against availability, accessibility, adaptability women. It is worth noting in this regard and affordability.12 The study includes that it does not address issues related to this material in an attempt to understand the interpretation of religion in the analysis how national laws meet the requirements of personal status codes. The study set forth by voluntarily ratified undertakes qualitative legal analysis of international and regional conventions. information drawn from relevant literature The methodology also allows for greater and government-issued reports; official understanding of the applicability of the submissions to committees of applicable right of access to justice at a procedural human rights treaties, such as CEDAW and (de facto) level. the Human Rights Committee; and related reports by international and national Chapter II discusses the right of access non-governmental organizations (NGOs), to justice as embedded in international especially those addressing directly or and regional legal frameworks. It indirectly women’s access to justice in the also examines the trilogy of the legal region. It also relies on the interpretative obligations of States to “protect, respect work of the committees of human rights and fulfil” human rights. This discussion treaties. attempts to determine the scope of the right of “access to justice” and to The study draws upon background establish national responsibilities to papers produced by legal experts implement and put into practice their addressing research questions related commitments in this regard, including in to the applicability of women’s right situations of conflict and post-conflict. of access to justice in each of the Arab subregions.11 These background papers Chapter III analyses the legal and examine the integration of the right of constitutional frameworks in the Arab access to justice within the constitutions region in an attempt to determine the and national legal systems of ESCWA extent to which the implementation of the member States. They analyse existing right of access to justice for Arab women structures of justice and consider conforms to international and regional to what extent these structures are conventions. This chapter specifically compliant with international obligations. addresses how the right of access to justice Furthermore, they examine the difference for women, as enshrined in agreed-upon 9

international instruments, figures in national can significantly impede the advancement constitutions and legislations. of women’s rights”. 13 Access to justice and effective national remedies are critical to Chapter IV focuses on impediments and the full and proper application of human obstacles faced by women seeking access to rights. Rooted in the principles of equality justice in ESCWA member States. Focusing and non-discrimination,14 access to justice on issues of availability, accessibility and encompasses “equal access and equality affordability, it examines whether – and in of arms, and ensures that parties to the what manner – States manage to translate proceedings in question are treated without their obligations under international any discrimination”. 15 As such, it is “a key conventions into concrete procedural element of human rights protection, and measures, which will in turn ensure full serves as a procedural means to safeguard enjoyment of this right. the rule of law”. 16

Chapter V discusses approaches to The international community as a whole improving the situation of access to has engaged in the development of justice for women in the Arab region and standards, guidelines and strategies aimed enhancing the accessibility of national at strengthening justice systems and national remedies to gender-based injustice. legislations by incorporating into them Highlighted in this discussion are best principles of non-discrimination and equality practices and tools available for use by in enjoyment of rights. International human Governments. The chapter illuminates the rights treaties consider national laws to be the current efforts and related reform measures ultimate source of remedial justice, and assign of some ESCWA member States taken the prime responsibility of human rights towards meeting their obligation of making protection to the State. This responsibility is equal access to justice possible. embodied in the principle that States should ensure that procedures to seek protection The conclusions in chapter VI provide from human rights violations are available and applicable policy measures that may be accessible to all individuals.17 considered by member States and key stakeholders. These measures aim to The right of access to justice is afforded to all enhance access to justice for women and individuals: male and female, citizen and non- to ensure the availability and affordability citizen. However, while both men and women of national remedies in cases of violation of face obstacles in accessing justice, women their rights. face different challenges and experience such challenges differently. It is well noted C. Rationale: Why access to justice? that groups suffering from discrimination and from a lack of the protection of the rule Ensuring rights and upholding the principles of law are more likely to experience a range of equality and non-discrimination must be of socio-economic, political and criminal achieved through the rule of law. However, injustices.18 As explained by the Special rights are only meaningful if they can Rapporteur on extreme poverty, economic be protected. As it has been well noted, obstacles to access to justice are “a major and “just as a strong legal system can protect unacceptable challenge for all people living in and open up opportunities for women, a poverty, but they are particularly pronounced justice system that is inaccessible or that for women, due to the unequal distribution of contains discriminatory rules or practices resources at both the household and societal

Status of Arab Women Report Introduction 10

levels”. 19 In other words, women experience remedies by migrant workers, the majority violations of their right to justice at two of whom are women. Stating that States levels, namely: structural and individual. The parties should have in place “adequate legal institutional barriers faced by women as they remedies and complaints mechanisms, attempt to access justice are compounded by and … easily accessible dispute resolution the lack of capacities at the individual level. mechanisms”, 24 CEDAW enumerates the As noted, structural obstacles include “the obligations of States parties to ensure that fact that the majority of the poor are women “women migrant workers have access to legal and lack representation and participation in assistance and to the courts and regulatory decision-making, while being discriminated in systems charged with enforcing labour and access to economic resources. Some obstacles employment laws, including through free are reinforced at both individual and structural legal aid”. 25 Moreover, obligations of States levels, such as illiteracy and lack of education, must ensure that the realization of the right powerlessness, lack of [legal rights] awareness, of access to justice continues in times of both economic status reflected in lower wages, and peace and war. As stipulated in the General those deriving from customary practices”. 20 Assembly resolution 60/147 (2005), “Basic Principles and Guidelines on the Right to Various international instruments tackling a Remedy and Reparation, “States are to elements of gender discrimination have provide “those who claim to be victsims of a emphasized the right of women to access human rights or humanitarian law violation justice. Primary among these is CEDAW, with equal and effective access to justice, wherein article 2 (c) requires effective […] irrespective of who may ultimately be judicial protection of women’s entitlement the bearer of responsibility for the violation”; to enjoy rights on an equal basis with men; and provide “effective remedies to victims, and article 15 (1) requires States parties to including reparation...” . 26 ensure that “women are equal with men before the law”. As such, effective remedies The right of all individuals, including for discrimination should be available, women, of access to justice is further accessible, adaptable and affordable for asserted in regional legal instruments, women who wish to assert their rights specifically the Arab Charter on Human before the relevant courts, tribunals or other Rights and the African Charter on Human institutions.21 It is also well established and Peoples’ Rights. Most Arab States are that laws that prohibit discrimination parties to these legal instruments, which must embody some form of legal or other enshrine principles of equality before the material consequence for those who violate law and stipulate equal access to justice them.22 In its general recommendation No. for all. In its preamble, the Arab Charter on 28, the Committee on the Elimination of Human Rights affirms the right of every Discrimination agaisnt Women (CEDAW individual to enjoy freedom and justice.27 Committee) specifies various types Article 9 of this Charter states that all of remedies, whether penal, civil or persons are “equal before the law and administrative, depending on the forum that everyone within the territory of the State has jurisdiction over particular claims.23 has a guaranteed right to legal remedy”. 28 Similarly, the African Charter on Human and The right of access to justice applies in Peoples’ Rights reaffirms in its preamble all contexts. For instance, in its general that “freedom, equality, justice and dignity recommendation No. 26, the CEDAW are essential objectives for the achievement Committee asserts the need for access to of the legitimate aspirations of the African 11

© Adrian Niederhaeuser - shutterstock_173293166 peoples” . Article 3 of this Charter guarantees Discrimination involves the use of the right of “equality before the law” and differential treatment, bias in the stipulates that every individual “shall be implementation of law, or the application equal before the law” and every individual of different rules for same situations or “shall be entitled to equal protection of the the same rule for different situations.31 law”. 29 These regional legal instruments Discrimination against women is defined make clear that access to justice is a right. as “any distinction, exclusion or restriction made on the basis of sex which has the D. Conceptualizing “access to justice” effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by Access to justice is a broad concept, women, irrespective of their marital status, encompassing the ability of individuals on a basis of equality of men and women, to obtain, through judicial processes, of human rights and fundamental freedoms just, impartial and timely remedies for all in the political, economic, social, cultural, forms of discrimination and violations of civil or any other field” 32. Discrimination human rights.30 Determining the definition may be direct or indirect. Direct of discrimination is a critical first step for discrimination occurs when a law or its establishing the basis on which to exercise application relies explicitly on distinctions the right of access to justice. based on sex. Indirect discrimination is

Status of Arab Women Report Introduction 12

manifested when a law or policy, whether public hearing by a competent, independent, or not discriminatory in wording, has a and impartial tribunal established by law, discriminatory impact once implemented.33 if they face any criminal charges or if their rights and obligations are determined in a Article 14 of International Covenant on Civil suit at law ... [and it] secures a substantive and Political Rights (ICCPR) stipulates that right to compensation in cases of miscarriage each person has the right to: of justice in criminal cases”. 34 In order for this guarantee of equality before the law “1. … be equal before the courts and to be implemented, however, individuals tribunals … everyone shall be entitled to must be able to access fully the processes a fair and public hearing by a competent, of justice, that is, the justice chain (figure 1). independent and impartial tribunal They must be able to achieve just, impartial established by law... and timely remedy for discrimination and 3. (b) … have adequate time and facilities for violations of rights,35 and must have the the preparation of his defence […] right to an impartial and independent trial in 3. (d) … be tried in his presence, and to the case of criminal charges. defend himself in person or through legal assistance of his own choosing; to be The justice chain includes various elements, informed.” namely: the existence of non-discriminatory laws, the ability to file a complaint in In interpreting article 14 of ICCPR, the Human police stations, the ability to undergo a just Rights Committee noted that the article “sets and impartial investigation process, the out a general guarantee of equality before accessibility to fair litigation and adjudication courts and tribunals that applies regardless processes, and the ability to receive just of the nature of proceedings before such and enforced remedy. Traditionally, “access bodies ... [it] entitles individuals to a fair and to justice” has been thought of in terms of the ability to gain access to courts and tribunals. Recently, however, there has been Figure 1. The justice chain a shift from “a uni-dimensional focus on the procedural and cost barriers that prevent individuals from bringing their claims to court to a more holistic assessment of all t 36 en aspects of the legal system”. In other m e c r n words, the focus on access to justice has o o f ti a n c E i widened “from simply an emphasis on d u n j io d ut ‘access’ to an examination of ‘justice’ as A c e s n 37 o io well”. r at P g ti s e lice v e Po n th I to This study defines access to justice as g in t r the ability of women, whether victims o

p e or offenders, to access every step of the R Discriminatory Acts/Offence justice chain in order to seek and obtain remedy in conformity with international standards. The term “access to justice” does not simply refer to access to judiciary and adjudicatory mechanisms, rather it includes the right to legal protection, 13

to equality before the courts, and to equality and non-discrimination are the ability to obtain a just and timely central to the realization of the right of remedy for violations of rights without access to justice. Conversely, the right of discrimination of any kind. The focus of access to justice is a key means to address the study analysis is therefore on these discrimination. Achieving gender justice elements: “substantive justice which “requires that mainstream institutions and concerns itself with an assessment of the procedures – from justice to economic rights claims that are available to those policymaking – are held accountable for who seek a remedy; procedural aspects tackling the injustice and discrimination which focus on the opportunities and that keep too many women poor and barriers to getting ones claim into court excluded”. 39 As such, the study also (or other dispute resolution forum); and, addresses the right of access to justice the symbolic component of access to from the perspective of the obligations of justice which steps outside of doctrinal law States to ensure “the positive enjoyment” and asks to what extent a particular legal of this right, not only by enacting laws, but regime promotes citizens’ belonging and also by enacting reform of institutions and empowerment”. 38 bodies “which inherently draw a distinction between men and women”. 40 In this As such, the study uses the term “access context, the study tackles aspects of gender to justice” in its totality, locating access to mainstreaming within the justice chain as a justice within the frameworks of accessibility, key means to “end the inequalities between availability, adaptability and affordability – women and men that are produced and distinct albeit interdependent components. reproduced in the family, the community, It is established that the principles of the market and the state”. 41

Status of Arab Women Report Introduction 14

“The obligation of States to respect, protect and fulfil human rights through legislation, protective mechanisms and remedies for violation is requisite to women’s right of access to justice”

II. The Right of Access to Justice in International and Regional Instruments

A. Access to justice in international the right to equality before the law and human rights treaties courts; (b) the right to equal recognition before the law; (c) the right to seek effective remedy; and (d) the right to have The term “access to justice” was not fair and impartial trial. explicitly used in international human rights treaties. However, access to justice is considered by the monitoring bodies These rights, as encompassed in the of international human rights treaties as right of access to justice, were first a right and a requisite for the upholding formally pronounced in article 7 of the of all human rights. The interpretative and Universal Declaration of Human Rights 5 monitoring committees of international (UDHR), which states that all are “equal human rights treaties determine access before the law and are entitled without to justice to be a core pillar of the full any discrimination to equal protection enjoyment of all human rights, whether of the law. All are entitled to equal political, civil, economic, social or cultural. protection against any discrimination in In its general comment No. 32, the Human violation of this Declaration and against Rights Committee, which monitors the any incitement to such discrimination”. implementation of ICCPR, underscores Article 8 of UDHR further emphasizes that access to justice as a key to the protection everyone has “the right to an effective of rights,1 and “an essential tool for reducing poverty and inequality—including gender equality”. 2 Figure 2. Access to justice elements

Access to justice is important for States as well as individuals. As has been noted, “access to justice is a particularly important The right to fair and aspect of the rule of law in the context The right to seek impartial trial effective remedy of development work”. 3 Both the rule of law and access to justice are “important elements for the stability and development of states. Governments gain significant The right to equality legitimacy, both domestically and before the law and courts The right to litigation internationally, when rights are respected and promulgated”. 4 The right to equal The right of access to justice is complex, recognition before the law and encompasses other rights, as affirmed by international human rights treaties (figure 2). These include the following: (a)

Status of Arab Women Report The Right of Access to Justice in International and Regional Instruments 16

Box 1. Article 14 of the International Covenant on Civil and Political Rights (ICCPR)

“1. All persons shall be equal before the courts and tribunals … everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

“6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law.”

Box 2. Discrimination faced by women in seeking legal redress

“A woman’s right to bring litigation is limited in some countries by law or by her access to legal advice and her ability to seek redress from the courts. In others, her status as a witness or her evidence is accorded less respect or weight than that of a man. Such laws or customs limit the woman’s right effectively to pursue or retain her equal share of property and diminish her standing as an independent, responsible and valued member of her community. When countries limit a woman’s legal capacity by their laws, or permit individuals or institutions to do the same, they are denying women their rights to be equal with men and restricting women’s ability to provide for themselves and their dependents”.

Source: CEDAW Committee, General Recommendation No.21.

remedy by the competent national Reading article 14 along with article 16 of tribunals for acts violating the fundamental the Covenant establishes that the right of rights granted him by the constitution or access to justice is linked to the principles by law”. Article 10 of the same declaration of equality and non-discrimination. Article expresses the right of all individuals 16 stipulates that everyone “shall have to a fair trial in both civil and criminal the right to recognition everywhere as a proceedings. Article 14 of ICCPR further person before the law”. The Human Rights establishes the right to equality before Committee, in its general comment No. courts and the right of access to courts.6 32, notes that “the right of equality before Article 14 emphasizes that the right of courts … guarantees … [the principles] access to justice entails the right of equal of equal access and equality of arms, and access and equal treatment before the ensures that the parties to the proceedings law and the courts, in conformity with in question are treated without any international standards and principles (box discrimination”. 7 1). It also asserts the right of all persons to seek remedy and compensation for acts The Human Rights Committee further violating their human rights. notes that, as contained by the obligations 17

of States parties, countries must “take It is has been well established that laws all steps necessary … to put an end to prohibiting discrimination must embody discriminatory actions, both in the public some form of legal or other material and the private sector, which impair the consequence for those who violate equal enjoyment of rights”. 8 The Human them.10 As noted above, article 2 (b) Rights Committee’s general comments “provides the States parties with some Nos. 28 and 32 clarify that the fulfilment discretion, but effective legal and practical of article 14 means that States parties are protection against discrimination requires obliged to ensure the enjoyment of the some form of sanctions”. 11 Article 2 (c) right of access to justice by all individuals, of CEDAW requires effective judicial men and women alike. These principles protection of women’s entitlement to recognize the obligation of States parties enjoy rights on an equal basis with men. to take all measures to ensure the equal States parties must ensure that access to enjoyment of this right without any effective remedies for discrimination is discrimination, whether based on race, available, accessible and affordable for colour, sex, language, religion, political women at any point at which they wish or other opinion, national or social to assert their rights before the relevant origin, property, birth or other status. In courts, tribunals or other institutions.12 its general comment No. 28, the Human In this context, all types of remedies Rights Committee asserts the equality and all types of penalties should be of men and women in the enjoyment of made accessible, whether penal, civil or human rights “on equal basis and in their administrative (depending on the forum totality”. 9 that has jurisdiction over particular claims). The CEDAW Committee noted, Equality before the law has also been in its general recommendation No. 28, affirmed in article 2 of CEDAW, in that States parties should incorporate particular in provisions (b) and (c), both punitive and restorative remedies which are the main defining sources in their legislative frameworks, including of State parties’ “obligation to ensure “different forms of reparation, such as the availability of remedies for women monetary compensation, restitution, subject to discrimination”. Article 15 rehabilitation and reinstatement; measures requires State parties to “accord to of satisfaction, such as public apologies, women equality with men before the public memorials and guarantees of law”; and asserts the equality of men non-repetition; changes in relevant laws and women in accessing courts, tribunals and practices; and bringing to justice the and judicial processes. It also provides perpetrators of violations of human rights for non-discriminatory protection of of women”. 13 the law. Article 15 of CEDAW reiterates article 14 of ICCPR, and points to the Although the International Covenant on main components of the full realization Economic, Social and Cultural Rights of the right of “access to justice”. In (ICESCR) does not include a specific its general recommendation No. 21, provision on the right of access to the CEDAW Committee highlights the justice, the Committee of the Covenant importance of ensuring equal recognition deems access to justice necessary for the before the law as a prerequisite to protection of economic, social and cultural ensuring the protection of women’s rights. In its general comment No. 9, the human rights (box 2). Committee noted:

Status of Arab Women Report The Right of Access to Justice in International and Regional Instruments 18

“The right to an effective remedy need call upon States parties to ensure equality not be interpreted as always requiring a before the law, equal treatment before judicial remedy. Administrative remedies the law, equal protection of the law and will, in many cases, be adequate and equal access to administration of justice those living within the jurisdiction of a processes.17 Moreover, all international State party have a legitimate expectation, treaties link the realization of the right based on the principle of good faith, of access to justice to a facilitating that all administrative authorities will environment established through the take account of the requirements of the independence of lawyers and of the Covenant in their decision-making. Any judiciary. A fair trial requires, in the first such administrative remedies should instance, an independent and impartial be accessible, affordable, timely and judiciary. Similarly, the independence effective … By the same token, there of the judiciary relies heavily on the are some obligations, such as (but by ability of judges and lawyers to exercise no means limited to) those concerning freedom of expression and of association, non-discrimination, in relation to which including the freedom to express views the provision of some form of judicial and to participate in matters of concern remedy would seem indispensable in independent of the authority of other order to satisfy the requirements of the branches of the government, in particular 14 Covenant.” the executive branch. The Committee further noted that there Determining the scope of the right of is a general assumption that judicial access to justice must also be addressed remedies are only available for violations in relation to the “intersectionality” of committed in relation to civil and political discrimination. The CEDAW Committee is rights. However, “the adoption of a currently in the process of developing a rigid classification of economic, social new general comment on women’s right and cultural rights which puts them, by of access to justice. The discussion papers definition, beyond the reach of the courts note that there is a need to recognize would thus be arbitrary and incompatible intersectionality as a core element in with the principle that the two sets determining the scope of the right of of human rights are indivisible and women to access justice, as well as in interdependent. It would also drastically determining the nature of the obligations of curtail the capacity of the courts to protect States parties. The CEDAW Committee has the rights of the most vulnerable and rightly pointed out that intersectionality is a 15 disadvantaged groups in society”. “basic concept for understanding the scope of the general obligations of States parties The right of access to justice is also contained in article 2. The discrimination affirmed in the Convention on the of women based on sex and gender is Elimination of All Forms of Racial inextricably linked with other factors that Discrimination (CERD), the International affect women, such as race, ethnicity, Convention on the Protection of the Rights religion or belief, health, status, age, class, of All Migrant Workers and Members of caste, sexual orientation, and gender their Families (CMW), and the Convention identity. Discrimination on the basis of sex on the Rights of Persons with Disabilities or gender may affect women belonging (CRDP).16 Through their interpretative and to such groups to a different degree or in monitoring committees, these conventions different ways to men”. 18 19

The Special Rapporteur on extreme the notion of inferiority or superiority of poverty and human rights has emphasized, either of the sexes, and of stereotyped in this regard, “the multitude of intersecting roles for men and women. The obligation obstacles that people living in poverty face to fulfil requires that States parties take in accessing justice, and … the obstacles a wide variety of steps to ensure that faced by women”. 19 In this context, States women and men enjoy equal rights parties are to take into account all the de jure and de facto, including, where experiences of individuals in fulfilling appropriate, the adoption of temporary their legal obligations to ensure full special measures”. 21 enjoyment of the right of access to justice, as determined under international human The obligations specified in international rights treaties. For example, one of the human rights treaties include both main barriers facing women subjected obligations of conduct and obligations to violence in their access to justice is of results.22 Furthermore, they entail financial. In order to guarantee women’s both legislative and administrative right of access to justice, affordable legal measures taken by States parties to processes and free legal aid should be ensure the elimination of all forms of guaranteed. States should take measures discrimination. The CEDAW Committee, to ensure equal access to justice, and in its general recommendation No. 28, should adapt these measures in a manner defines the obligations of States regarding that responds effectively to “social, discrimination against women cultural, legal, procedural, economic and as follows: practical barriers”. 20 All legislation and measures should take into account these “…the obligation of States parties to ensure distinct gendered experiences and needs. that legislation prohibiting discrimination and promoting equality of women and men B. Obligations of States under provides appropriate remedies for women international human rights treaties who are subjected to discrimination contrary to the Convention… All international human rights treaties This obligation requires that States parties places obligations on States parties to provide reparation to women whose rights respect, protect and fulfil human rights. under the Convention have been violated. The CEDAW Committee, in its general Without reparation the obligation to provide recommendation No. 28, noted that the an appropriate remedy is not discharged “obligation to respect requires that States …”23 parties refrain from making laws, policies, regulations, programmes, administrative In other words, the obligations of procedures and institutional structures States incorporate both obligation and that directly or indirectly result in the reparation. Moreover, States should denial of the equal enjoyment by women address their legal obligations in a of their civil, political, economic, social holistic manner, taking into account and cultural rights. The obligation to social, structural, institutional, protect requires that States parties protect procedural, legal and financial aspects. women from discrimination by private As the CEDAW Committee noted, actors and take steps directly aimed “States parties should consider that at eliminating customary and all other they have to fulfil their legal obligations practices that prejudice and perpetuate to all women through designing public

Status of Arab Women Report The Right of Access to Justice in International and Regional Instruments 20

respect women Rights ProtectCEDAW Human non-citizens CEDAW Rights Refugees Fulﬁll Remedies equality Affordability

women Equality non- before discrimination refugees law Rights Human Accessibility

judgment Availability women Remedies fair and Right CEDAW

Remedies girls Impartial to Litigation Equal Recognition trial before the law

© lculig - shutterstock_201226493 policies, programmes and institutional territory or subject to the jurisdiction of the frameworks that are aimed at fulfilling State party”. 28 the specific needs of women leading to the full development of their potential on As stated above, the obligation of States an equal basis with men”. 24 These legal to respect, protect and fulfil human obligations are erga omnes, 25 that is they rights through legislation, protective are obligations in whose fulfilment all mechanisms and remedies for violation States have a legal interest because their is requisite to women’s right of access subject matter is of importance to the to justice. The Human Rights Committee international community as a whole. They noted that respect for and protection of are related in this regard to the “United human rights cannot be achieved without Nations Charter obligation to promote effective, accessible and affordable universal respect for, and observance of, systems of justice administration that human rights and fundamental freedoms”. 26 guarantee judicial and administrative remedies for all individuals subjected to The right of access to justice also places violations of their human rights.29 In this a set of obligations on States parties to regard, States should ensure that laws ensure “that no individual is deprived, in provide effective protection of the rights procedural terms, of his/her right to claim of women, and should provide adequate justice”. 27 States are to ensure the rights structures and institutions to address and freedoms of all individuals in their violations. In complying with obligations territory and subject to their jurisdiction, to protect, States should make available regardless of their status. As the Human fair and effective protective mechanisms Rights Committee explains, “the enjoyment as well as complaints procedures and of Covenant rights is not limited to citizens remedies. In complying with obligations to of States parties but must also be available fulfil human rights, States should develop to all individuals, regardless of nationality preventive measures, including public or statelessness, such as asylum seekers, awareness and education programmes, refugees, migrant workers and other and gender-sensitive training for judicial persons, who may find themselves in the and law enforcement officers. 21

As outlined by the CEDAW Committee, (d) Adaptability - institutions and the obligations of States extend beyond programmes have to be flexible so [they] the incorporation of international human can adapt to the needs of changing rights standards and principles in societies and communities...”33 their national legislations. Specifically, States are obligated to act upon the These elements of availability, accessibility, responsibility of ensuring the availability affordability and adaptability inform the of affordable and timely remedies that are actions States should take in ensuring accessible without discrimination.30 The access to justice for women. In addition to CEDAW Committee further emphasizes making sure that the principle of the right that States parties should ensure in their of access to justice is incorporated within legislative frameworks the ability of national legislations, States should ensure women to “invoke the principle of equality the availability of police stations, courts in support of complaints of acts of and tribunals in geographical proximity discrimination contrary to the Convention, to women, both in urban and in rural committed by public officials or by private settings. They should make legal structures actors”. 31 The CEDAW Committee places accessible to women without any forms the responsibility on courts to uphold of discrimination (for example, without the principles of equality and non- requiring the approval of male relatives discrimination in interpreting the law and to file a complaint). States should provide pronouncing judgments. for the availability of legal assistance, whether provision of information, advice or However, the obligations of States do not representation, at a cost that is affordable to ensure justice for women unless women all individuals within the national territory. are able to access the justice system. States should further be prepared to adapt Fundamental to the implementation to changing needs in order to ensure the of access to justice for women in the right of access to justice for all individuals Arab region are the core elements of under their jurisdiction, including women. availability, accessibility, affordability and adaptability. The Committee on Economic, It should be noted that national remedies Social and Cultural Rights (CESCR) defines are viewed as more effective than the these elements as follows:32 international protection systems afforded by international instruments. In fact, “(a) Availability – functioning… the Human Rights Committee clearly institutions and programmes have to be emphasizes that ICCPR is not “a substitute available in sufficient quantity within the to domestic criminal and civil law”. 34 jurisdiction of the State party... In the Optional Protocol to ICCPR, it is (b) Accessibility – …institutions and noted that all available national remedies programmes have to be accessible should be exhausted as a criterion for to everyone, without discrimination, admissibility of complaints before the within the jurisdiction of the State party. Human Rights Committee.35 That is, Accessibility has three overlapping when it comes to the actual application of dimensions: justice and the enforcement of principles Non-discrimination... of equality, national legal frameworks are Physical accessibility... considered the ultimate source of remedial Economic accessibility… justice, with the prime responsibility of […] human rights protection assigned to the

Status of Arab Women Report The Right of Access to Justice in International and Regional Instruments 22

State. This responsibility is embodied of a person before the law.45 Such in the obligation of States to ensure recognition, which acknowledges a person’s that procedures to seek protection from capacity to uphold rights and obligations human rights violations are available and under the law, is central to the realization accessible to all individuals.36 of human rights.

C. The right of access to justice in Similarly, the African Charter on Human regional human rights frameworks and Peoples’ Rights, which enshrines the principle of non-discrimination,46 reaffirms in Principles of equality before the law and its preamble that “freedom, equality, justice access to justice are also enshrined in and dignity are essential objectives for the regional legal frameworks. In the case of achievement of the legitimate aspirations of the Arab region, both the Arab Human the African peoples”. 47 Article 3 of the Charter Rights Charter 37 and the African Charter guarantees the right of equality before the on Human and Peoples’ Rights38 stipulate law, stipulating that every individual “shall be equal access to justice for all. equal before the law” and “shall be entitled to equal protection of the law”. 48 Article The preamble of the Arab Charter on 7 of the Charter further states that every Human Rights affirms the right of every individual must have the right to have individual to enjoy freedom and justice.39 their case heard, including “the right to an It also reaffirms commitment to the appeal to competent national organs against International Bill of Human Rights and acts of violating his fundamental rights as to the UN Charter.40 Article 3 (1) of the recognized and guaranteed by conventions, Arab Charter on Human Rights affirms the laws, regulations and customs in force”. 49 principle of non-discrimination. It states The article stipulates that no one “may be that “each State party to the present Charter condemned for an act or omission which did undertakes to ensure to all individuals not constitute a legally punishable offence subject to its jurisdiction the right to at the time it was committed. No penalty enjoy the rights and freedoms set forth may be inflicted for an offence for which herein, without distinction on grounds no provision was made at the time it was of race, colour, sex, language, religious committed”. 50 belief, opinion, thought, national or social origin, wealth, birth or physical or mental The Protocol to the African Charter on disability”. 41 Additionally, article 3 (2) Human and Peoples’ Rights on the Rights requires States to take measures to ensure of Women in Africa (2003) explicitly “effective equality in the enjoyment of determines the obligations of States parties all the rights and freedoms”. 42 article 11 in ensuring women’s right in accessing emphasizes that all persons are “equal justice. Article 8 of the Protocol states: before the law and have the right to enjoy its protection without discrimination”. 43 “Women and men are equal before the law This provision was reinforced by article 12 and shall have the right to equal protection of the charter, which states that all persons and benefit of the law. States Parties shall are “equal before the courts and tribunals take all appropriate measures to ensure: … They shall also guarantee every person a. effective access by women to judicial subject to their jurisdiction the right to seek and legal services, including legal aid; a legal remedy before courts of all level”. 44 b. support to local, national, regional The Charter also advances the recognition and continental initiatives directed 23

at providing women access to legal women experience these in gender-specific services, including legal aid; ways. “Severe violations and human rights c. the establishment of adequate abuses, including killings, abductions, educational and other appropriate and forced displacement wreak havoc and structures with particular attention to destruction in everyone’s lives. However, the women and to sensitize everyone to the impact is different for women and men”. 52 rights of women; d. that law enforcement organs at all levels In times of war, women suffer both direct are equipped to effectively interpret and and indirect gender-based violence. Women enforce gender equality rights; are often targeted and subjected to sexual e. that women are represented equally violence and other forms of gender-based in the judiciary and law enforcement violence as a warfare tactic. It is well organs; documented in international jurisprudence f. reform of existing discriminatory laws that sexual violence is used to destroy the and practices in order to promote and demographic structure of societies and protect the rights of women.”51 to terrorize communities.53 The lack of security and of the rule of law in situations This article asserts the obligations of States of conflict and civil unrest impedes women’s in conduct as well as their obligations in access to justice. Additionally, in times results, thereby addressing the obligations of war, the economic and social rights of of States to ensure full enjoyment of the women are frequently violated. Among right of access to justice in its totality. In other challenges, women’s existing poverty addition to requiring States to ensure is exacerbated in the context of ongoing equality within national legislations, this security situations by the inaccessibility of article requires States to take measures to social services provided by Governments ensure access to legal and judicial systems, and the inability to secure income and whether through the provision of legal aid, ensure family needs. Women suffer from establishment of educational programmes the repercussions of armed conflicts both or through other means. Moreover, it when they stay in their respective countries specifies the obligation of ensuring the and when they flee, seeking refuge in reform of existing laws when necessary. As neighbouring countries. such, the Protocol ensures the availability, accessibility, affordability and adaptability In its general recommendation No. of legal and judicial systems. 30, the CEDAW Committee notes that challenges “relating to access to justice D. Women’s right of access to justice in are especially aggravated and acute conflict and post-conflict situations in conflict and post-conflict situations because formal justice systems may no Currently, the Arab region suffers from civil longer exist or function with any level of unrest, armed conflicts and occupation. Men efficiency or effectiveness”. 54 Both human and women of the region are subjected to rights law and international humanitarian multiple and profound forms of insecurity, law are applicable in situations such including indiscriminate killings, torture, as these. The obligation of States to arbitrary arrest, forced disappearance, guarantee women’s right of access to and lack of economic and social security. justice does not cease in times of war. It is widely acknowledged that while such Despite the fact that article 14 of ICCPR violations of security affect all persons, on the “right to equality before courts

Status of Arab Women Report The Right of Access to Justice in International and Regional Instruments 24

and tribunals and to a fair trial” is not Within the framework of the CEDAW listed among the “non-derogable” rights recommendations, national legal (rights considered so important that they frameworks must guarantee women the cannot be taken away or compromised), right to seek remedy and appropriate the Human Rights Committee noted reparations for violations committed that States parties “should ensure that against their rights. States parties are, such derogations do not exceed those for example, to take concrete measures strictly required by the exigencies of the (enacting relevant laws) to increase the actual situation”. 55 The guarantee of representation of women in all decision- equality before the courts and the law making positions, in the law-enforcement may never be subjected to derogation, sector and the judiciary. They should ensure given that it may affect the enjoyment that gender issues are an integral part of of non-derogable rights,56 referred to in peace processes and transitional justice the Human Rights Committee’s general processes. The CEDAW Committee further comment No. 4. emphasizes that States should, in times of conflict and post-conflict, take necessary Moreover, it is a general principle of measures to provide “effective and timely international law that States have an remedies that respond to the different obligation to take preventive measures types of violations experienced by women to combat human rights violations and and ensure the provision of adequate and to effectively investigate and punish comprehensive reparations; address all perpetrators.57 This was the core essence gender-based violations, including sexual of the Security Council resolution 1325 and reproductive rights violations, domestic (2000) on women, peace and security, which and sexual enslavement, forced marriage outlines the obligation of member countries and forced displacement, in addition to to take concrete measures to protect sexual violence, as well as violations of women’s rights in times of peace, war and economic, social and cultural rights”. 61 In during transitional periods.58 Of particular this context, the Committee encourages relevance to the present study, the resolution States to strengthen their judicial processes strongly calls on member countries to by holding “human rights violators combat gender discrimination and to avoid accountable for their actions, putting an end including crimes related to gender-based to impunity, restoring the rule of law and violence in amnesty legislation.59 This addressing the needs of survivors through was reaffirmed by the General Assembly the provision of justice accompanied by resolution entitled “Basic Principles and reparations”. 62 Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of The CEDAW Committee reiterates International Human Rights Law and Serious that States should ensure structural Violations of International Humanitarian transformation in addressing violations Law” . As stated in this resolution, States committed against women. It points out need to provide “those who claim to be that reparation measures, rather than “re- victims of a human rights or humanitarian establishing the situation that existed before law violation with equal and effective the violations of women’s rights, should access to justice … irrespective of who may seek to transform the structural inequalities ultimately be the bearer of responsibility that led to the violations of women’s rights, for the violation”; and provide “effective respond to women’s specific needs and remedies to victims, including reparation”. 60 prevent their reoccurrence”. 63 25

In the case of refugees, the responsibility to from reality. Female refugees, women protect women and ensure the enjoyment and girls, suffer from discrimination and of their right of access to justice falls on the violence inflicted on them by their family host countries. The 1951 Convention Relating members, by refugee camp administrators to the Status of Refugees64 affirms this and by host communities. It is reported that responsibility as stipulated in article 16: “A female refugees, who have little individual refugee shall have free access to the courts security, economic opportunity, or property of law on the territory of all Contracting or land ownership, are subjected to sexual States”, and “a refugee shall enjoy in violence, sexual slavery, forced early the Contracting State in which he has his marriages and trafficking. Moreover, given habitual residence the same treatment as a that non-citizens are not always guaranteed national in matters pertaining to access to the legal rights of citizens in host countries, the courts, including legal assistance and refugees fall within the grey areas of legal exemption from cautio judicatum solvi”.65 protection.66 However, what is prescribed in theory differs

Status of Arab Women Report The Right of Access to Justice in International and Regional Instruments “National legislation that enshrines the principles of gender equality and non-discrimination is the first step to ensure women’s access to justice”

III. Access to Justice in National Legal Frameworks

The previous chapter establishes the key possibility not to apply certain provisions with elements of the right of access to justice. which it does not want to comply. As a result, It determines the obligations of States that human rights treaty bodies have repeatedly go beyond enacting laws, and focuses on raised concerns regarding the extent to which actions and measures to be taken by States Arab countries have translated the obligation to ensure the full enjoyment of this right. to “respect, protect and fulfil” all rights into This chapter analyses the constitutional reality, and regarding reservations that defy and legal frameworks in Arab States in an the object and the purpose of these treaties. attempt to determine the extent to which Furthermore, with the exception of Libya and the implementation of the right of access Tunisia, none of the Arab States have ratified to justice for Arab women conforms to the Optional Protocol to CEDAW,2 thereby international and regional conventions. As limiting women’s access to international noted above, a State party that has signed adjudication. It is important to note that and ratified international conventions is all international human rights protection under obligation to respect, protect and fulfil mechanisms emphasize the need to exhaust these international commitments. States national mechanisms and remedies before parties are to incorporate international granting the admissibility of individual standards and principles in their respective complaints. As affirmed in article 4 (1) of the legal frameworks and to take measures Optional Protocol to CEDAW, the Committee to ensure the realization of the rights and “shall not consider a communication unless freedoms stipulated therein. it has ascertained that all available domestic remedies have been exhausted unless the As illustrated in the table below, most application of such remedies is unreasonably Arab countries have ratified at least two prolonged or unlikely to bring effective relief”. 3 of the available international instruments highlighting women’s access to justice. The sections below assess the availability Such ratification shows commitment to the of constitutional and legal guarantees of realization of human rights in general, and the right of access to justice for women women’s rights in particular. CEDAW and the in the Arab region, the conformity of Convention on the Rights of the Child (CRC) these guarantees with international are the most ratified conventions by Arab obligations, and their compatibility with the States, albeit with reservations to a number abovementioned international standards and of their articles. In particular, reservations principles. were placed on article 2 of CEDAW, which prohibits discrimination against women in A. Access to justice in national national constitutions and laws.1 According constitutions to articles 2 (1) (d) and 19-23 of the 1969 Vienna Convention on the Law of Treaties, Guaranteeing equality in constitutions is a a reservation enables a State to accept a core pillar of the process of ensuring women’s multilateral treaty as a whole by giving it the right of access to justice. The CEDAW

Status of Arab Women Report Access to Justice in National Legal Frameworks 28

Status of ratifications in ESCWA member States

OP- CERD ICCPR ICESCR CAT CEDAW CRC CMW CPED CRPD CEDAW Bahrain x x x x x x x Egypt x x x x x x x x Iraq x x x x x x x x Jordan x x x x x x x Kuwait x x x x x x Lebanon x x x x x x x Libya x x x x x x x x Morocco x x x x x x x x x Oman x x x x Palestine x x x x x x x x x Qatar x x x x x Saudi x x x x x Arabia Sudan x x x x x Syria x x x x x x x x Tunisia x x x x x x x x x UAE x x x x x Yemen x x x x x x x

Abbreviations: CERD: The International Convention on the Elimination of All Forms of Racial Discrimination ICCPR: The International Covenant on Civil and Political Rights ICESCR: The International Covenant on Economic, Social and Cultural Rights CAT: The Convention against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment CEDAW: The Convention on the Elimination of All Forms of Discrimination against Women OP-CEDAW: The Optional Protocol to CEDAW CRC: The Convention on the Rights of the Child CMW: The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families CPED: The Convention for the Protection of All Persons from Enforced Disappearance CRPD: The Convention on the Rights of Persons with Disabilities. Source: Compiled by ESCWA.

Committee in its general recommendation of acts of discrimination contrary to the No. 28 emphasizes that States parties are Convention, committed by public officials or under obligation to “ensure that, through by private actors”. 4 In this context, ensuring constitutional amendments or by other the principle of equality in constitutions is appropriate legislative means, the principle of “essential in order to establish a universal equality between women and men and of non- imperative of equality for women on which discrimination is enshrined in domestic law the entire chain of access to justice within the with an overriding and enforceable status… state will rest”. 5 Additionally, guaranteeing [and to] ensure that women can invoke the the abovementioned elements of access to principle of equality in support of complaints justice within constitutions is an affirmation 29

of the political commitment to grant this equal protection of the law”. In contrast, right. As noted by the Human Rights Council’s article 33 (3) of the Constitution of the Syrian mandate holder, Frances Raday, Chair of the Arab Republic (2012) affirms the principle of Working Group on Discrimination against equality for citizens only, stating that citizens Women in Law and Practice, “a constitutional shall be equal in rights and duties without guarantee of equality is a critical component discrimination among them on grounds of in securing gender equality in access to sex, origin, language, religion or creed. justice. While constitutional guarantees of equality do not necessarily guarantee that Following the uprisings in Egypt, Libya, equality rights will be available to women Tunisia and Yemen, which were inspired by in practice, the articulation of equality calls for equality, human rights and justice, for women is a significant and essential processes for drafting new constitutions foundation for the realization of women’s have been undertaken in these countries. rights and is an indispensable expression of Women’s groups have been successful in political will”. 6 asserting their participation in constitution- drafting committees, as well as in reflecting Within the Arab region, the 2002 gender perspectives and introducing Constitution of Bahrain ensures the elements of access to justice in all emerging principle of non-discrimination and includes constitutions, albeit to varying degrees elements of access to justice, namely the in different countries. Tunisia’s new equal recognition before the law, the right Constitution of 2014 affirms the principle of to litigation, the right to a fair trial, and equality and elements of access to justice. the right to legal aid (in criminal cases Article 21 states that all citizens, men and only).7 The Constitution of Iraq explicitly women alike, have equal rights and duties, states that “Iraqis are equal before the law and are equal before the law without any without discrimination based on gender discrimination. Tunisia’s Constitution also … or economic or social status”. 8 Similarly, captures the need to protect women’s rights Morocco’s Constitution guarantees equality in public and private spheres. Similarly, before the law to all citizens. Jordan’s Egypt’s Constitution of 2014 guarantees Constitution ensures the principle of equality basic rights and freedoms to all citizens and provides for equality of all Jordanians without discrimination on the basis of sex, before the law.9 Article 9 of the Palestinian ethnicity, language and religion.13 Elements Basic Law stipulates that, “Palestinians shall of access to justice are enshrined in Egypt’s be equal before the law and the judiciary, Constitution, including the right to litigation, without distinction based upon race, sex, colour, the right to a fair trial and the right to legal religion, political views or disability”. 10 The aid. In contrast, while Libya’s constitutional 2005 Interim National Constitution of the declaration of 2011 affirms the principles Sudan11 upholds “values of justice, equality, of equality and non-discrimination, it does human dignity and equal rights and duties not explicitly prohibit discrimination on the of men and women”, and explicitly affirms basis of sex. Article 6 of this constitutional gender equality.12 Article 31 of the Interim declaration states that “Libyans shall be Constitution confirms the equality before equal before the law. They shall enjoy the law of all individuals, stating that all equal civil and political rights, shall have persons are “equal before the law and are the same opportunities, and be subject to entitled without discrimination, as to race, the same public duties and obligations, colour, sex, language, religious creed, without discrimination due to religion, political opinion, or ethnic origin, to the doctrine, language, wealth, race, kinship,

Status of Arab Women Report Access to Justice in National Legal Frameworks 30

political opinions, and social status, tribal or the judiciary, and the application of eminent or familial loyalty” .14 Yemen’s new the rule of law. Similarly, Oman’s Basic Constitution15 is currently under formulation Law ensures equality and justice as based on the outcome of the National core pillars of Omani society,20 and also Dialogue Conference. The Conference’s affirms the principles of equality and outcome document includes prohibition of non-discrimination. Article 35 of Qatar’s discrimination on the basis of sex, equality Constitution stipulates that “all persons between men and women, and equality are equal before the law and there shall be before the law. The Constitution of Yemen of no discrimination whatsoever on grounds 2001 guarantees the principle of equality in of sex, race, language, or religion”. 21 general. Article 25 of the Constitution states Saudi Arabia’s Basic Law states that the that “Yemeni society is based on social Government is based on justice and that it solidarity, which is based on justice, freedom specifically provides the right to litigation and equality according to the law”. 16 to both citizens and residents.22

Other constitutions in the region prohibit As can be seen, prohibition of discrimination discrimination without explicitly specifying in the constitutions of various States varies discrimination on the basis of sex, thereby from explicit to implicit reference to the allowing a wide spectrum for interpretation. basis on which discrimination is enacted. Lebanon’s Constitution enshrines the The lack of explicit reference to gender as principle of non-discrimination and protects a basis of discrimination has limited the the right of equality before the judiciary; enjoyment of women’s right of access to the latter provides for the right to legal aid justice in a number of Arab countries. As in all cases and could ensure equal access such, women do not have the constitutional to courts to all individuals. However, the guarantees to access justice and to establish Constitution does not explicitly note the legal foundation for discrimination on the basis of discrimination. This has prompted basis of sex. Additionally, the constitutional legal experts to establish that the lack of guarantees for the enjoyment of the explicit reference to equality between men principles of equality and non-discrimination and women in Lebanon’s Constitution are frequently limited to citizens. The impedes the effective enjoyment of equality exclusion of non-citizens from guarantees for Lebanese women and therefore their of equality has impeded certain groups – equal access to justice.17 Similarly, the particularly refugees and migrant workers, principle of non-discrimination and the the majority of whom are women and girls principle of equality before the law are – from enjoying constitutional guarantees of enshrined in the Constitution of the United equality, and of the equality before the law. Arab Emirates, although this falls short of the explicit prohibition of discrimination on Despite the abovementioned gaps in the basis of sex.18 guarantees of equality, most constitutions in the Arab region do recognize the The principles of equality and justice are principle of equality and do include generally invoked in the Constitutions elements of equal access to justice. of Kuwait, Oman and Qatar. Kuwait’s Parallel to these constitutional guarantees, Constitution regards “justice, liberty various Arab States have developed and equality”19 as guiding principles for national legislations to incorporate society. It guarantees personal liberty, constitutional guarantees into national the independence and impartiality of legal frameworks. 31

B. Access to justice in national of equality may be seen in personal status legislations codes. Arab women’s equal status with that of men has been curtailed by discriminatory This section addresses the right of access provisions in personal status codes. Most of to justice in national legislations of ESCWA the region’s personal status codes contradict member States. National legislations that provisions of international treaties, particularly enshrine the principles of gender equality those of CEDAW, and those of national and non-discrimination have put into constitutions. With the exception of Morocco place an important step in the justice chain and Tunisia, Arab women do not enjoy equal ensuring women’s access to justice. This rights in marriage, divorce, custody and section examines the extent to which the guardianship. As has been noted, these forms national legislations of ESCWA member of inequalities “severely marginalize women States are non-discriminatory to women, and girls, curtail their equal opportunities whether they are adequate to prevent to education and employment, restrict their discrimination, including discrimination in access to healthcare and make it difficult the workplace (for example, unequal access for women to seek judicial remedies when 24 to opportunities; dismissal on the grounds their rights are violated”. Most ESCWA of pregnancy, maternity or marriage; sexual member States, with the exception of harassment in the workplace), and whether Saudi Arabia, have codified their personal they provide equal treatment before the status codes. Generally, the provisions of law for women and men alike. Moreover, personal status codes in the region stem this section addresses the criminalization from religious principles and are linked to of discriminatory acts, including violence religious courts. The lack of a unified civil against women, and the measures aimed personal status code is one of major factors at ensuring the availability of remedies for contributing to discrimination and inequality. women. These issues are examined within Despite the fact that equality before the law, the context of relevant strands of law, the right to litigation and the right to seek including criminal law, personal status law, remedy are guaranteed in principle, these law on combating violence against women rights are contradicted by the provisions of and labour law. personal status codes (family law) that instate inequalities. 1. Prohibition of discrimination Most of the region’s personal status code As noted, most ESCWA member States laws discriminate against women by the prohibit discrimination on the ground of sex, mere fact of recognizing men as heads of and mention equality in their constitutions. households, thereby institutionalizing “the However, these principles are typically lost in inferior status of women in the family”. 25 translation when moving from constitution Women are expected to obey their husbands to national laws. It is often noted that in return for the provision of financial discriminatory laws have adversely impacted support.26 With the exception of the personal the political and economic empowerment of status codes of Libya, Morocco and Tunisia, Arab women.23 the obedience rule is explicitly mentioned in national laws. A woman’s prescribed duty to a. Personal status codes be “obedient” could allow husbands to deny their wives the right to work and thereby A glaring example of how national deny them the right to financial equality. As legislations have drifted from the principle such, it clearly contradicts the obligations of

Status of Arab Women Report Access to Justice in National Legal Frameworks 32

States under CEDAW of ensuring equality all of their rights (maintenance, payment between men and women. of agreed-upon dowry, custody) in terms of legal remedies. This fact has inhibited It is widely known that some Arab women’s ability to resort to courts to exercise countries have established the need for their right to divorce. “guardianship” for a woman to enter into marriage, enter into contracts, access legal Another discrimination women face services, make health-related decisions, concerns the issue of custody of and or travel. The guardianship system has guardianship over their children. In some reinforced the unequal recognition of woman Arab countries, women still need the before the law, and has further curtailed permission of their children’s father in order women’s ability to participate effectively in to travel with their children or to open a economic and political spheres. On one end bank account for them. In contrast, national of the spectrum, Morocco’s personal status laws does not require the father to obtain law puts a limitation on the power of the the mother’s permission to perform similar guardian to force his ward into marriage.27 actions. Reforms were recently introduced in At the other end of the spectrum, in Yemen, Egypt and Lebanon lifting the requirement a woman cannot marry, regardless of age, for permission to be granted by the father for without the approval of her guardian. The a mother to travel with her children (Egypt), guardian system also limits women’s access or for a mother to open a bank account for to justice in cases where the guardian is her children (Lebanon). Under Muslim law, himself the perpetrator of violations of divorced women have the custody of their women’s rights, as in cases of domestic daughters until the age of 12, and of their violence. sons until the age of nine. Women in Egypt, Jordan, Syrian Arab Republic and Yemen lose Generally, Arab women do not have equal custody of their children if they remarry. This right to divorce. Men are not obliged to rule does not apply to men if they remarry. provide reasons for divorce, whereas As such, women do not enjoy equality before women must establish legal grounds for the law from the outset of a case. divorce, such as maltreatment, a husband’s imprisonment for three years or malicious b. Criminal code abandonment. In Christian communities, depending on the sects, divorce is either Criminal codes in Arab countries ensure the granted on the basis of very exceptional principles of equality and non-discrimination conditions, or forbidden. Recent reforms in general. The provisions of codes are de in the region have introduced more equal facto applicable to all individuals within the rights in family laws of some Arab States. State’s territories, men and women, citizens Morocco’s Moudawana and Tunisia’s family and non-citizens alike. These provisions take law code grant men and women equal into consideration whether a woman who right to divorce. Equality in the enjoyment committed a crime is pregnant. Article 32 of the right ensures women’s enjoyment of the penal code in Morocco enacted this of equality of arms in cases related to positive discrimination, noting that women divorce. Egypt introduced law reforms in who commit a crime when they are more 2000 granting women the right of khula’a, than six-month pregnant may postpone their the right to divorce without the provision imprisonment until 40 days after delivery. of legal grounds. However, khula’a does Despite this, some clauses in the penal codes not guarantee women equality in attaining remain discriminatory. 33

In cases of adultery, men typically receive addressed in the context of efforts to combat more lenient penalties than women.28 While so-called honour killings. For instance, the punishment varies between countries, Jordan and Lebanon have amended the overall, women convicted of adultery are leniency clause in their penal codes; and subject to longer sentences than men the legislative branches in the two countries convicted of the same offence. In 2014, have annulled articles in their respective amendments to articles 487, 488 and 489 of penal codes29 that mitigated the sentence of Lebanon’s penal code state that an individual, a person claiming they killed or injured their whether man or woman, who is accused wife, daughter or other female relative to of adultery will receive a three-month to protect family “honour”. two-year sentence. These amendments also institute a single definition of the crime In all Arab countries, rape is penalized in of adultery to be applied to both men and the criminal code. However, some countries women. Previously, according to article include leniency clauses for cases of rape. 488 of Lebanon’s penal code, for a man Such leniency clauses limit woman’s right to to be accused of adultery he had to have seek remedies. In Bahrain, Jordan, Kuwait, committed the act of adultery in the marital Lebanon, Libya, the Sudan and the Syrian home, whereas a woman could be accused Arab Republic, the male rapist can escape of adultery regardless of where or under punishment if he marries his victim. The what circumstances the act was committed. criminal codes of Egypt, Qatar and the United Arab Emirates do not include explicit Penal codes in some Arab States, as in leniency clauses for rapists. the case of the State of Palestine and Yemen, provide for lenient rulings for so- In matters related to protecting women in called “honour killings” committed by the workplace, penal codes provide women men, while providing much more severe with protection against sexual harassment. penalties for women convicted of homicide. Bahrain’s penal code provides for three-month In cases of homicide committed against a imprisonment and a fine of 20 Bahraini dinars woman by her male relative or husband, (70 United States dollars) for anyone who and in situations where the woman was offends a woman’s modesty by committing allegedly caught in the act of adultery “an act of indecency, by words or deeds” or illegitimate sexual relations, the male .30 However, there are calls in the region, perpetrator can be granted a pardon for including in Egypt and Lebanon, for non-premeditated killing. In such cases, a legal reforms that would consider sexual man might receive a maximum sentence harassment as a specific offence with of one year imprisonment. For example, appropriate punishment. article 232 of Yemen’s penal code states that if a man kills his wife or her alleged lover in c. Labour code the act of committing adultery, or attacking them, causing disability, he may be fined or The equal right to work and the equal sentenced to imprisonment for a term not opportunity to employment in both public exceeding one year. However, a woman who and private sectors are enshrined in the commits homicide under similar conditions labour codes of the region. Article 88 of will be tried for intentional crime and will be Egypt’s labour code of 2003 states that the subject to life imprisonment. This is the case provisions of the labour code are applicable in most penal codes of the region. However, to women without discrimination. Article in some cases this disparity has been 9 of Bahrain’s Law No. 36 of 2012, on the

Status of Arab Women Report Access to Justice in National Legal Frameworks 34

promulgation of the labour law in the private codes of Egypt and Morocco. However, sector, stipulates that every citizen capable what occurs in practice still differs from of work and wishing to work shall submit a what is prescribed by law. For example, “in request to register his name at the Ministry Morocco, women’s average earnings were or any of its affiliated centres. However, estimated at 24 per cent of those of men in while the region scores high in terms of the 2010”. 31 Most of the labour codes in the Arab ratio of girls to boys in tertiary education, region provide for favourable treatment of the percentage of Arab women in the labour pregnant women, including, for example, by force remains a concern (figure 3). prohibiting the dismissal of a woman while she is on maternity leave. Libya, Morocco Women’s employment faces particular and the Syrian Arab Republic offer adequate challenges. The restrictions imposed by the maternity leave of 14 weeks of paid leave.32 guardianship system in some countries in the However, paternity leave is not recognized in region limit women’s ability to work outside the region.33 The failure to consider men’s role of the home. Once women manage to enter in the domestic sphere poses a different form the labour force, labour codes guarantee, to of gender discrimination. a large extent, equal rights, opportunities and treatment. For instance, the Saudi Arabia’s Meanwhile, gaps and discriminatory labour code prohibits gender-based gaps provisions still exist in Arab labour in wages and salaries; and equal wages for codes, hampering women’s economic equal work are also specified in the labour empowerment. For example, the labour codes of Bahrain and Egypt indicate that women cannot be employed to work during the hours Figure 3. The ratio of girls to boys in from 7 pm to 7 am. Furthermore, article 89 of tertiary education versus the percentage Egypt’s labour code requires any employers of Arab women in the labour force wishing to recruit women to guarantee their protection and transportation. Such a requirement reflects the belief that “women 80. are a vulnerable group in need of protection” and in need of being guarded.34

60. In most ESCWA member States, social security policies and taxation laws are unfavourable to Teritary women. Article 81 of Jordan’s Social Security education 40. Law No. 1/2014 includes discriminatory Participation in the provisions regarding family indemnities. In labour force the case of remarriage, a woman does not receive her deceased husband’s indemnities, 20. but this rule does not apply to the husband of a deceased woman.35 In Lebanon, by contrast, a number of court decisions have invoked 0. Arab women Arab men gender equality, requiring the social security fund to pay family indemnities to the mother, Source: UNESCO Institute for Statistics (UIS), Tertiary Education, thereby allowing her to receive health benefits available from http://data.uis.unesco.org (accessed 14 February for her children, as long as they are proven to 2015); and International Labour Organization (ILO), Key Indicators of the Labour Market (KILM), available from http://kilm.ilo.org/ be in her custody and her husband does not KILMnet/ (accessed 14 February 2015). receive such benefits.36 35

Another gender gap occurs with regard to Women in the Arab region represent the tax regulations and retirement ages that majority of the labour force in the agricultural discriminate between men and women. sector, constituting a form of informal Discriminatory tax laws are recognized as economy.42 Women and girls working in this an obstacle to the economic participation of sector are subject to violations. Usually, they Arab women.37 In fact, some of the region’s receive no payment for their labour, or are at income tax laws provide for an unequal best low-paid and they are typically engaged treatment between men and women; and in seasonal work, which carries no security while they view spouses as two separate or benefits. Such informal economies have taxpayers, only the husband is entitled to not yet been regularized by law in most tax relief. Some reform initiatives have been member States. As such, women fall outside undertaken, for example in Jordan and the protection of law, and continue to be Lebanon, aimed at ensuring equal benefits marginalized and have their right of access to for tax reduction for men and women. justice undermined.43 Moreover, with the exception of Bahrain, Egypt, Kuwait, Lebanon, Morocco, the Sudan 2. Criminalization of discrimination and Tunisia, which have similar retirement ages for men and women,38 women’s age While constitutions across the region of retirement in the rest of the region is guarantee the right to litigation for all people, still lower by five years than for men. This without any discrimination on the grounds adversely impacts women’s benefits and of sex, the non-criminalization of certain allowances at the time of retirement. behaviour “in which women are the sole or main victim”44 restricts women’s ability to It should be noted that citizen and non- access justice. One area where gaps in law citizen domestic workers, the majority of are longstanding in the region is violence whom are women, are not included in the against women. The issue of violence against majority of the region’s codes. This creates women has recently moved beyond the a legal vacuum regarding the availability solely “private” sphere into a wider public of protection for this group. Academic and realm, with the recognition of the obligations policy-oriented studies have identified of States to protect individuals in both public chronic violations of the rights of domestic and private spheres. workers and the inability of these workers to seek justice and remedies.39 However, Following calls from civil society, Lebanon, initiatives have been carried out in the region Jordan and Saudi Arabia criminalized to expand the protection afforded in labour domestic violence, as is seen in Lebanon’s codes to domestic workers. As of 2008, law of 2014 on the protection of women and Jordan’s labour code extends protection family members from domestic violence. to domestic workers. Jordan passed new Controversy has surrounded the question of regulations in 2012 that limit the number of whether Lebanon’s law on family protection daily working hours for domestic workers explicitly criminalizes marital rape or not.45 to eight hours, and stipulate that workers However, lawmakers assert that the law are not required to seek permission from does criminalize marital rape.46 In Egypt, one employers to leave their homes during of the main obstacles to access justice for non-work hours.40 Similarly, Bahrain has women survivors of violence against women extended some of the protections in its is that crimes of violence are not sufficiently labour code to domestic workers, such as defined.47 In June 2014, Egypt amended access to labour dispute mediations.41 article 306(a) in the penal code to criminalize

Status of Arab Women Report Access to Justice in National Legal Frameworks 36

harassment in the form of words, gestures medical treatment and rehabilitation, with and actions expressed in person or through the last being paid by the perpetrators of the other means of communication. The law crime. In Jordan, work operations may be stipulates a minimum sentence of six-month suspended, in accordance with Jordan’s labour imprisonment and a fine of 3000 Egyptian code, if it is established that a female worker pounds ($429) for an offence. A second has been sexually attacked. Additionally, a amendment to the law stipulates a more woman subjected to sexual harassment at severe sentence for an offender who is in a the workplace has the right to terminate her position of authority over the complainant, contract and obtain full compensation.48 and for offences involving multiple perpetrators. Jordan, Morocco and Tunisia Invoking the principle of equality offers a similarly criminalize sexual harassment. means by which women may seek remedy. In 2009, four Kuwaiti women parliamentarians In contrast, in Kuwait, domestic violence, appealed an article requiring the presence of sexual harassment and marital rape are a male guardian to issue and renew passports not criminalized. The law in Kuwait does, at the Constitutional Court.49 The Court found however, allow women to file a complaint that the article in the personal status law that with police, and abusers can be charged with required a woman to obtain the approval assault. The fact that violence against women of her guardian violated the guarantees of in general, and domestic violence, marital personal freedom and gender equality as rape and sexual harassment in particular, enshrined in Kuwait’s Constitution.50 are not crimes makes it impossible for Kuwaiti women to take legal actions against In general, legal frameworks provide for the perpetrators. As a result, Kuwaiti women’s protection of women’s rights on the basis of the enjoyment of civil, political, economic, social principle of equality and non-discrimination, and cultural rights is negatively affected. and ensure the availability of suitable remedies. It has been noted that despite the existence of 3. Availability of remedies labour laws that “mandate equal pay for the same type of work and equal opportunities Both access to justice and the availability of for training and promotion, these laws are effective remedies for violations of justice are frequently violated in terms of salary and crucial for the protection of women’s rights. employment perks”. 51 The existence of such The abovementioned codes to a certain extent laws do, however, allow for remedies to provide for remedies for discrimination and such violations to be sought. For example, human rights violations directed against women in the Gulf subregion can “file women. The availability of remedies is discrimination complaints with government particularly evident in penal codes, labour agencies”. 52 In 2014, the Administrative codes and laws combating violence against District in Kuwait ruled that the requirement women (for example domestic violence and limiting applications for the position of public human trafficking). Remedies are available prosecutor position to male candidates either in the form of punishment or in the form was discriminatory. The Ministry of Justice of reparations or restitutions. For instance, removed the requirement accordingly. Lebanon’s law on domestic violence ensures that women who are subjected to violence 4. The protection of non-citizens are provided with remedies that correspond to the gravity of the crime. The law ensures In most ESCWA member States, female women’s right to child custody, housing, refugees fall outside the protection of the 37

law.53 The region has a considerably large Additionally, the Arab region suffers from the number of the world’s refugees, at some 22 phenomena of forced labour and trafficking per cent.54 The ability of female refugees to in persons. According to ILO estimates, enjoy the right of access to justice is curtailed some 600,000 individuals in the region, by the fact that most ESCWA member States the majority of whom are women and girls have not ratified the 1951 Convention on coming from Asia, are victims of forced labour the Status of Refugees, and by the existence and trafficking.57 ILO relates the propagation within national legislations of discrimination of this phenomenon to the instability in against non-citizens. Female refugees do the region, the non-criminalization of the not have adequate legal means to protest crime of trafficking, the existence of the discrimination. sponsorship system (Kafeel), and to “early and temporary forms of marriage in the Female refugees face discrimination on the Middle East [that] make women vulnerable basis of gender, as a result of their refugee to sexual exploitation by forcing them into status, and as a consequence of the social prostitution for economic gain”. 58 A total of and economic vulnerability their status 14 ESCWA member States have ratified the entails. Female refugees have very limited United Nations Protocol to Prevent, Suppress access to education, work opportunities and Punish Trafficking in Persons Especially and health services.55 According to the Women and Children, supplementing the International Labour Organization (ILO), Convention against Transnational Organized 59 “Syrian refugees are characterized by high Crime, (Palermo Protocol). Eight of these unemployment levels, most notably amongst States have passed laws that criminalize and women at 68 per cent. Given the absence impose penalties (fines and imprisonment) 60 of male heads in most refugee households, for crimes of trafficking. However, there is an impetus for women to seek work. despite the adoption of the legislation, the However, they still face the additional burden implementation of such laws is hindered of childcare, which impedes them from by the non-dissemination of information on employment. In fact, out of all the Syrian the law and available support, as well as by refugee women aged above 15 years, only six such practices as the confiscation of legal per cent are currently working in Lebanon”. 56 documents of trafficked women and girls, and Furthermore, female refugees are subjected the imposition of restrictions on their freedom to all forms of violence, including sexual of movement. violence, forced and child marriage, trafficking and exploitation. Recently, numerous reports In sum, the constitutions across the Arab region protect the principles of equality and indicate high numbers of early marriages non-discrimination as well as all the elements within refugee communities in Lebanon and of the right of access to justice. However, the Jordan. Iraqi and Syrian female refugees are region’s personal status codes, labour codes subject to trafficking and to forced and early and criminal codes offer limited protection of marriages. However, they are unable to seek women’s right of access to justice. As such, remedies owing to a number of barriers, legal gaps compounded by structural barriers including the legal vacuum created by the (as described in chapter IV) circumscribe absence of legal protection of non-citizens, women’s realization of equality before the law, the curtailed freedom of movement of equality of arms and of effective remedies. refugees, and regulations by host countries related to the acquisition of residency. As a result, the right of access of female refugees to justice is curtailed.

Status of Arab Women Report Access to Justice in National Legal Frameworks “Women face difficulties in filing complaints, navigating the judicial processes and, if they manage to access the court system, enforcing remedies”

IV. Barriers to Arab Women's Access to Justice

Access to justice involves a number A. Barriers at the institutional and of steps that enable women to claim procedural levels and obtain just remedies for violations committed on the basis of discrimination. Effective access to justice depends Chapter III concludes that the existence first on the availability of functioning of discriminatory laws, compounded institutions. As discussed, States parties by the lack of laws prohibiting certain should ensure the implementation of laws violations, leaves Arab women with through a functioning chain of justice that limited opportunities to access the justice is responsive to gender needs. However, system. Furthermore, at each step of justice institutions in the Arab region are not the justice process, Arab women face effective in this regard owing to the reasons barriers to their access to justice. Women set forth below. face difficulties in filing complaints, navigating the judicial processes and, if 1. Plurality of legal mechanisms and systems they manage to access the court system, enforcing remedies. These difficulties Most countries in the Arab region have a are experienced at institutional and plurality of legal orders, including the legal procedural levels as well as at social orders of different religions and sects as levels. As highlighted below, these well as the country’s national legislative barriers are a manifestation of the gender framework. Moreover, some countries have stereotyping faced by women. As noted, significant numbers of religious orders; for “gender stereotyping affects women’s instance, there are 18 confessions in Lebanon. experiences as victims of human rights This plurality poses challenges for women’s violations, beginning with whether or access to justice, as is manifested with not a violation of women’s rights is particular clarity in the adjudication of family perceived to have occurred through matters and issues related to violence against to whether or not women are able to women. As mentioned above, family matters obtain reparations for those violations are dealt with in religious laws and courts … gender stereotyping undermines in accordance to an individual’s religious the role and perceptions of women as affiliation. However, the religious orders witnesses within the justice system … applicable in the case of a marriage of mixed female offenders are also affected by religions or sects are those of the husband. gender stereotyping”. 1 Moreover, as This situation poses particular challenges noted in chapter II, States are obligated in terms of ensuring effective remedies to ensure the availability of affordable for women in cases related to divorce and timely access to justice without any entitlements, child custody and inheritance. discrimination. This chapter analyses the barriers impeding women’s access to The plurality of legal systems also justice in accordance with the obligations contributes to inconsistency in the provision of States. of remedies, while inconsistency between

Status of Arab Women Report Barriers to Arab Women's Access to Justice 40

systems creates space for discrimination. excluded from appointment as judges in Some crimes stipulated in civil laws may religious courts. However, in Palestine, two not be considered crimes in religious laws, women were appointed as judges to the and vice versa. As such, the precedence of Islamic Sharia Court in the West Bank in either civil law or religious law is determined 2009, becoming the first female judges in on a case-by-case basis. The lack of unified Palestinian Islamic courts that deal with family judicial system impairs women’s ability affairs.7 In Lebanon, one woman has been to seek and enforce remedies, and leaves appointed in the ecclesiastical Anglican court.8 women in a legal vacuum. In Lebanon, the Law on the Protection of Women and Family Women are also under-represented in Members from Domestic Violence may lead other sectors of the justice chain, namely, to the imprisonment of the perpetrator – prosecution and police forces. However, the husband in most cases. However, the there have been recent efforts in a number religious court may not immediately approve of Arab countries to increase the number the request for divorce of a woman subjected of female police officers and prosecutors, to violence and thus protect her from the and to establish special units to deal with recurrence of the crime. Furthermore, article cases of violence against women. In 2014, 22 of the Law states that in the case of the Ministry of Interior in Egypt created a contradiction between it and the personal number of decentralized special units to status code and its rules, supremacy goes combat violence against women. In Lebanon, to the provisions of the personal status the Internal Security Forces started to recruit law. Women’s rights may suffer when such women in 2012. Oman and Yemen have also contradictions come into play. integrated women into their police forces. Kuwait has established family units within 2. Gender responsive justice system police stations to deal with cases of violence. a. Under-representation of women in the justice b. Institutional weaknesses on gender-related system issues

According to a report in 2012 by UN Women, In the Arab region, the administration of the representation of Arab women in the the justice sector is not gender sensitive judiciary is among the lowest in the world.2 in its training or in its modus operandi. Owing to the lack of official statistics, it The CEDAW Committee, in its concluding is difficult to determine the magnitude of observations to States parties, repeatedly women’s under-representation in the judiciary. establishes a link between the lack of According to a report relying on secondary sensitization on gender issues of law sources, only 42 out of 12,000 are women.3 enforcement agencies and the lack of In 2011, 20.12 per cent of judges in Morocco access to justice for women. For example, were female.4 In Lebanon, female judges the Committee noted in its concluding constitute 42 per cent of the total number observations to Morocco that “a number of judges.5 In the United Arab Emirates, of constraints and difficulties have amendments to the federal judicial law in emerged, including in particular difficulties 2008 paved the way for the appointment of attributable to inadequate infrastructure female federal judges and prosecutors.6 In and logistical resources, a lack of awareness Libya, 130 out of a total of 959 appointees to and training among officials responsible judiciary posts are women, and 120 women for enforcing the code and the persons in are public prosecutors. Women are generally charge of publicizing it and propagating an 41

understanding of it throughout Morocco’s before the adoption of the Law on the social fabric”. 9 Protection of Women and Family Members from Domestic Violence, Lebanese women Additionally, the curricula of the judiciary and subjected to violence – leading to death police institutes do not reflect the obligations in some instances – were not able to of States under international instruments obtain effective remedies due to improper and do not provide proper training on how investigation, biased judgment in favour of to handle gender-related cases. The lack the male perpetrator, or unwillingness of of regular training programmes and the the victim to pursue criminal prosecution.13 failure to update training courses leave Women of the region have expressed their officials involved in the administration of reluctance to approach the police, the justice lagging behind in terms of new prosecution and the judiciary owing to the developments in the law, whether these fact that these sectors are embedded in relate to abolishment of discriminatory systems of social discrimination, inequalities law or to the enactment of legal protection and bias. As the unwillingness of women of women’s rights. These gaps result to pursue legal recourse suggests, such in judges, police and prosecutors who institutional weaknesses contribute to a “lack understanding on the sensitivities lack of confidence and trust in the justice surrounding certain violations of women’s administration sector. rights or even of their justiciability”. 10 Women subjected to violence often cite the 3. Lack of accessibility attempts of police officers to convince them of the non-justiciability of their complaints Another obstacle facing Arab women in and to interfere in the justice process by accessing justice is the accessibility of the proposing mediation instead. To address justice system. Inaccessibility may be linked these gaps in capacity and knowledge, the to many factors, including the following: the Ministry of Justice in Jordan established centralized justice system, the guardianship specialized units in 2009 within five courts system, economic dependency, or factors to hear cases involving gender-motivated related to occupation and security situations. crimes.11 In Lebanon, the law on domestic Courts are generally centralized in the violence provides for severe punishment of capitals or in major cities, resulting in officials who obstruct the justice process.12 women from rural areas needing to travel long distances to reach the courts. Despite Courts may demonstrate gender bias in the fact that rural men and women suffer exercising their jurisdiction and in their from the centralization of courts, rural rulings. This owes to a lack of gender women bear extra burdens related to sensitization, as noted, as well as to a limited financial resources. Furthermore, lack of appropriate monitoring and of rural women are mostly engaged as daily sanctions against judicial personnel for labourers in agricultural activities, and most failure to uphold the principles of equality women cannot sacrifice a day’s income to and non-discrimination. With regard to travel to the courts. gender-based violence crimes, there is a general unwillingness on the part of law- Additionally, some countries of the region enforcement officials to exercise powers still do not allow women and girls to travel or of arrest, file charges, pursue criminal to access courts without their male guardian’s prosecutions and enforce protective approval or without the presence of a male measures or other remedies. In Lebanon, relative. Such requirements hinder women’s

Status of Arab Women Report Barriers to Arab Women's Access to Justice 42

ability to seek redress, especially when the Palestinian women to enjoy the right of male guardian is the perpetrator. Moreover, access to justice.19 The inability of most the guardianship system creates another women to afford transportation costs adds level of discrimination for female offenders, another level of difficulty in accessing justice. who often overstay their sentences arising from an unwillingness of male guardians 4. Lack of legal aid and counselling services to pay the required release fees and to accompany them upon leaving prison. While the constitutions across the region provide for the right to counsel and to legal Unaffordable legal procedures, together aid, such aid and counsel are provided under with lack of access to financial resources strict eligibility criteria and, in some countries, on the part of the majority of Arab women, are only provided for criminal cases. also pose another impediment to women’s Insufficient funding in national budgets has access to justice in the region. Women a detrimental effect on legal aid and leaves are reluctant to file claims in court given a room for discrimination in the provision of lack of financial resources. According to a this aid. Civil society organizations, along recent study by UN Women, many women with lawyers’ syndicates, are filling this gap.20 have “observed that economic hardships However, owing to the limited availability such as poverty and severe economic of funding, the quality of the services is hardship blocked them from even reaching questionable. Legal clinics that provide pro out for help or following up with the social bono legal assistance, legal education and welfare or police”. 14 Alternatively, they may training to marginalized groups have been initiate the claims process without a lawyer introduced in universities in Iraq, Lebanon, because of inability to pay lawyer fees, Morocco and Palestine.21 Although this is a with a corresponding detrimental effect on relatively new concept in the region, it has the case’s level of success.15 Some judicial gained broad support, particularly from the systems are sensitive to the ramifications of communities that the legal clinics serve.22 a lack of financial resources on the part of the However, the law profession codes of the claimant. In Egypt, fees are waived in cases Arab region do not allow lawyers who are not related to family matters, as well as in labour registered with the respective syndicates to cases if the complainant is the worker.16 In practise law or represent clients in any legal Lebanon, fees are waived in cases related to proceeding. This fact, together with reliance domestic violence. In Bahrain, as stipulated on donor funding, hinders the value and the in article 6 of the labour law, fees are waived sustainability of the service. in cases related to labour.17 B. Barriers at the capacity level The security situation in a number of ESCWA member countries plays a role in limiting The lack of legal empowerment is another women’s ability to seek and access justice. obstacle confronting Arab women in their For example, the occupation by Israel access to justice. Information on laws (rights hinders the ability of Palestinian women to and duties) and on legal procedures is often access the justice system.18 The lack of free complicated and not easy to access. While movement between the administrative zones national women’s machineries (NWMs) in in the West Bank and the requirement to the region have engaged in legal-awareness cross multiple checkpoints, where women campaigns, these have been limited in time are subjected to all forms of harassment, and geographical coverage. Women are not have severely restricted the ability of aware of their rights, let alone how to navigate 43

the legal orders of their respective countries.23 independence of the judiciary, and have also High rates of illiteracy, especially in rural areas, proclaimed their acceptance of the principle have left Arab women unaware of their rights, of the separation of powers. Most Arab of the remedies available, and of what justice constitutional texts make this acceptance mechanisms offer and how to access them. explicit. However, reports show that the It was noted that “major obstacles to access reality remains different. It was noted that [justice] are related to weak legal education the judiciary suffers from the authority of among women as well as absence of effective the executive branch. In Jordan,26 Lebanon,27 awareness on rights, obligations, and legal Palestine,28 and the Syrian Arab Republic,29 procedures that could provide women with the majority of the members of the high 24 tools to better access to justice”. judicial councils, who are mandated to address the recruitment, promotion, C. Barriers at the social level transfer, discipline and dismissal of judges, are appointed by the State. This brings the The fear of reprisal or social ostracism is judicial authority under the full control of the detrimental to Arab women’s right of access executive authority and seriously affects its to justice. Women sometimes face social independence.30 disapproval in pursuing justice, particularly in cases related to family matters and 2. Duration of legal proceedings gender-based violence. Women are often reluctant to seek justice in cases related The lengthiness of legal proceedings, to sexual harassment in the workplace, compounded by their unaffordable cost, fearing scandal or the loss of their jobs. can seriously hinder women’s enjoyment If a woman decides to pursue a case, she of their right of access to justice. It is well may be pressured by family members to acknowledged that legal proceedings in civil withdraw her complaint. For example, in and religious courts are extremely lengthy. Jordan, under the penal code, charges of Settlements for family matters cases may rape and sexual abuse can be dropped if the require as long as five years to be achieved. perpetrator marries the victim for a period of at least 5 years. In such cases, there are However, in cases related to violence, no clear procedures for determining the harassment or trafficking, women victims/ consent of the victim to such a marriage. In survivors are in need of immediate remedial practice, female victims may be pressured actions for their safety. In such situations, the into accepting such arrangements in order lengthiness of legal proceedings impedes to avoid bringing shame on themselves and the right of women to access justice and their families, and to protect themselves may expose women to exacerbated abuse from becoming victims of additional crimes while cases are ongoing. by family members to protect family honour.25 3. Language

D. Other barriers In the legislations of all ESCWA member States, interpreters are to be made available 1. Independence of the judiciary to non-Arabic speakers undertaking legal proceedings. However, reports indicate that Judicial independence is a critical element migrant workers and trafficked persons do in the protection of the right of access to not have easy access to interpreters or legal justice. Arab States have endorsed the information in their native languages.31

Status of Arab Women Report Barriers to Arab Women's Access to Justice “Addressing gaps in the justice chain via a holistic approach ensures the full realization of women’s right to seek remedy to violations”

V. Addressing Barriers to Women's Access to Justice: Strategies, Approaches and Good Practices

Chapters III and IV identified various factors, in constitutions, eliminating gender both legislative and procedural, that impede discrimination from national legislations, Arab women’s access to justice. These and addressing legal gaps in conformity factors include the lack of legal guarantees with CEDAW and ICCPR as well as other of equal protection before the law and ratified international human rights treaties. the courts, the existence of discriminatory Recent constitutions reflect such reforms. laws, the expense of legal procedures, the For instance, the Constitution of Egypt of lack of legal aid and counselling, the lack 2014 recognizes equality between men of knowledge of available measures that and women and ensures equal citizenship protect women, difficulty in gaining access rights in civil, political, economic and social to services, lack of resources or means to fields.1 Similarly, Tunisia’s Constitution of participate in justice processes, and lack of 2014 enshrines women’s rights, with article trust in the enforcement mechanisms. All of 46 stipulating that the State shall guarantee these pose significant barriers to women’s equal opportunities between men and right of accessing justice. women in the bearing of all the various responsibilities in all fields.2 Article 46 also In order to address these barriers and commits the State to attempting to balance enhance women’s enjoyment of their right the number of men and women serving in of access to justice, the following strategic elected councils. In Morocco, amendments avenues have been adopted by governments, were introduced to the family code, which NWMs, civil society organizations and now stipulates equality between spouses.3 other stakeholders: (a) legal protection; In Lebanon, the National Committee for (b) legal empowerment; (c) adjudication; Lebanese Women Affairs (NCLW) launched and (d) enforcement. It is worth noting that a national campaign entitled “Wayn ba’dna” this chapter is not intended to evaluate the (loosely translated as “we are still at this initiatives as such; rather, it aims to provide stage”) to press for reform on laws that an overview of measures undertaken by all have adverse economic impact on women.4 stakeholders to address the abovementioned The Legislative Committee of Egypt’s legal gaps and structural barriers. National Council for Women (NCW) consults directly with Members of Parliament to A. Strategies adopted seek legal clarifications of or propose amendments to laws that discriminate on 1. Legal protection the basis of gender.

Discriminatory laws remain prevalent 2. Legal empowerment in the Arab region. Women and men are not equal before the law. In response to Legal empowerment strategies ensure this situation, countries have introduced that the principles of equality and non- legal reform, integrating gender equality discrimination do not remain simply de

Status of Arab Women Report Addressing Barriers to Women's Access to Justice: Strategies, Approaches and Good Practices 46

jure principles, but are translated into legal and social studies to present for practice as de facto principles as well.5 consideration to the NCW Legislative Legal empowerment includes raising legal Committee. The Office handles claims awareness and providing legal aid services. related to personal status and nationality, sexual harassment, divorce, domestic Initiatives have been taken by a number of violence and gender discrimination in the regional NWMs, civil society organizations workplace. The Office of the Ombudsman and lawyer syndicates to ensure women’s has established several branch offices access to legal information as “a foundation across the country and, in addition, to fight injustice” .6 These initiatives aim at maintains a large network of national NGOs assisting women in pursuing their right to to which claims, complaints and requests seek remedy through the justice system. for legal counselling falling outside the The extent to which women are aware of scope of the Office are referred. In 2013, their rights and of available protection the Office of the Ombudsman processed mechanisms depends on various factors, 2761 complaints and provided 122 legal including education and economic status. consultations.9 Awareness also depends on women’s geographical location (for example, rural As part of its legal empowerment strategy, versus urban). Information strategies NCW also established the Women’s recognize these factors and tailor messages Legal Rights Project aimed at providing in accordance to the needs and backgrounds information and answering women’s of women in different locations and sectors. queries on personal status issues, with the ultimate goal of simplifying litigation Knowing one’s rights is insufficient if it is procedures.10 not accompanied by knowledge of how to claim these rights through the justice In Iraq, the Bar Association Law provides process. Providing legal aid services is one for a legal aid committee to be responsible of the obligations of States in effectively for the provision of legal aid regardless of implementing the right of access to whether a case is criminal or not. In order to justice. Governments, NWMs, civil society qualify for legal aid, a defendant is required organizations and lawyer syndicates provide to pass a means test. The committee may such services in the Arab region. grant legal aid to a litigant who is financially unable to pay attorney fees or is unable Egypt’s National Council for Women (NCW) to find a legal representative. Upon court was established by presidential decree in request, it may grant legal aid to 2000 to work on improving the status of a criminal defendant or a juvenile. Legal aid Egyptian women by empowering women services are also provided by civil society in social, economic and political arenas organizations. The Future Association for through a number of programmes.7 The Iraqi Women provides legal consultations Office of the Ombudsman was established and develops awareness-raising in 2001 as part of NWC to investigate, programmes for divorced women and mediate and resolve claims of gender women in need. discrimination.8 The Office receives complaints and provides legal counselling In Lebanon, the law stipulates that the and legal aid services to women whose defendant in a criminal case is entitled to political, civil, economic, social and cultural the appointment of a legal aid lawyer;11 a rights have been violated. It also prepares party in a civil case is similarly entitled, 47

upon proof of poverty, to the appointment aid. Examples are the Awn Access to of a legal aid lawyer. In the case of foreign Justice Network in the Gaza Strip,17 the defendants, reciprocity of the country Bar Association, and the Women’s Centre of origin is required for legal aid in civil for Legal Aid and Counselling, which offer matters.12 The Lebanese Bar Associations free legal aid services. In the Syrian Arab (Beirut and Tripoli) are responsible for Republic, legal aid is still a nascent concept, assigning lawyers to defendants in return and in the case of foreigners the law for symbolic fees paid from the Bar requires reciprocity from the defendant’s Fund. The Beirut Bar Association has a country of origin.18 specific committee dedicated to legal aid, namely, the Legal Aid Committee, which 3. Gender-sensitive judicial reform is composed of more than 30 lawyers appointed by the President of the Bar. The It is widely recognized that “the rule of law purpose of the Committee is to defend those requires not only that laws are passed, prosecuted before the courts or specialized but that they are equally enforced and authorities who are financially unable to pay independently adjudicated, free from bias attorney fees. However, the present system or discrimination”. 19 A gender-sensitive of delivering legal aid does not result in justice system increases the likelihood the systematic provision of quality legal that non-discriminatory rulings will be representation to clients. This owes to a applied. Establishing a gender-responsive heavy dependence on trainee lawyers, lack justice system involves ensuring equal of training and monitoring of lawyers, and representation in judicial appointments, the low fees paid for legal aid cases.13 The establishing specialized courts, and number of total requests remains very low implementing gender-sensitive legal (at 410 requests in 2011), which may reflect awareness so that adequate types of redress low confidence in the legal aid system.14 or compensation corresponding to the Besides the Bar Association, four NGOs are gravity of the discriminatory act are applied. known to offer legal aid, namely: Caritas, Association Justice and Mercy (AJEM), Dar However, women are significantly under- Al Amal, and Fondation Père Afif Osseiran represented in the legal and judicial fields, (FPAO).15 and this under-representation leads to discrimination in adjudication. For example, In Jordan, the main legal aid services are in Bahrain, “there are only seven women in provided by NGOs, primarily the Justice the judiciary and none in the Shari’a courts, Centre for Legal Aid (JCLA), Tamkeen, which hear the cases that most often and Arab Renaissance in Democracy and most directly affect women”. 20 Development, and Mizan. Criminal law procedures stipulate the appointment A number of Arab countries have of a lawyer in certain serious cases for undertaken initiatives to increase defendants unable to do so owing to their women’s presence in the justice system. economic situation.16 The Head of the Bar In implementing its family code, namely, Association may, at their sole discretion, Moudawana, the Government of Morocco delegate to any practising lawyer the created family sections within the district task of providing one free legal service courts, employing a female social worker a year. However, in practice, this power in each; and also implemented a training of delegation is rarely used. In Palestine, programme for family court judges. While NGOs are the main providers of legal distrust of the police remains a problem,

Status of Arab Women Report Addressing Barriers to Women's Access to Justice: Strategies, Approaches and Good Practices 48

women are much more willing to approach B. Holistic approach the new family courts. According to a study in 2009, women are mistrustful of the police Strategies for reforming the justice system and criminal courts, but are much more should be considered holistically and willing to go to family courts for a divorce simultaneously, given that “only sector-wide 21 in cases of domestic violence. Initiatives reforms can ensure what should be a basic trait such as family courts increase the possibility of liberal democracy: the equality of the citizens 22 of women accessing justice. before the law, not only in the legislation but actually realized in practice”. 23 Achieving 4. Enforcement access to justice requires a holistic approach that goes beyond accessing courts and A functioning system of enforcement is guaranteeing legal counselling and requisite for establishing accountability, representation. Rather, access to justice ending impunity and deterring recurrence “must be defined in terms of ensuring that of discriminatory acts. Initiatives have been legal and judicial outcomes are just”. 24 As taken in the region to reform the police and a result, achieving this access also entails prison sectors and enhance enforcement. putting into place mechanisms by which to These initiatives include building the enforce judicial outcomes. capacity of law enforcers to implement orders, rulings, settlements and decisions Addressing gaps in the justice chain resulting from adjudication related to via a holistic approach ensures the full gender discrimination. realization of women’s right to seek remedy to violations. In all the abovementioned As noted above, women who have strategies, civil society organizations and suffered violence and discrimination NWMs play a key role in either supporting are often re-victimized by the attitudes governmental efforts or undertaking of law-enforcement personnel. Most separate initiatives to protect women’s ESCWA member States are mainstreaming right of access to justice. These initiatives gender-sensitive approaches in their are sometimes undertaken in isolation law-enforcement agencies, particularly of others. However, in order to ensure a in police forces, in their efforts to combat successful outcome, initiatives should be violence against women. Women have carried out in a comprehensive, holistic and been integrated into law-enforcement concerted manner. forces, and special units on gender issues have been established. Egypt recently A recent initiative in Lebanon combating established units on sexual harassment in violence against women illustrates this its police forces. In Lebanon, the General kind of holistic approach. The Law on the Directorate of the Internal Security Forces Protection of Women and Family Members (ISF) adopted the ISF Code of Conduct in from Domestic Violence,25 passed in April 2012, wherein article 4 stipulates equality 2014, guarantees the right to seek judicial between men and women and prohibits processes and remedies for women discrimination on the basis of sex in the subjected to violence. The Law ensures fulfilment of ISF officer responsibilities. The the affordability of this right by waiving ISF Code of Conduct has been integrated fees related to the initiation of court legal into the training curriculum of ISF officers. proceedings. It includes clauses related to In 2012, Lebanon allowed women to join its protection and enforcement with regard to internal security forces. judicial decisions. The adoption of the Law 49

has been accompanied by widespread civil up on the commitments of employers and society activism in Lebanon, including their implementation of the provisions of a number of public awareness-raising the labour law. Moreover, a special unit campaigns on the phenomenon of gender was created in the Ministry to ensure violence and on the legal rights of women the protection of the rights of women subjected to violence. Meanwhile, civil workers.29 In 2013, the Ministry of Labour, society organizations provide services Jordan’s Bar Association, civil society of legal aid and counselling for violence organizations and ILO engaged in a review victims. In addition, the Internal Security of existing labour laws in order to address Forces has developed a training programme gaps in enforcement and ensure that non- for ISF officers in gender-sensitive skills in discrimination and gender equality were order to better address the needs of women adequately addressed by the judiciary. subjected to violence. Approaches to ensuring access to justice are Judges also play a critical role in ensuring embedded in the principles of equality and women’s right to just and fair remedies. non-discrimination, and should incorporate A number of judges use the provisions these principles into every step of the justice of the Law in issuing protective orders chain. Clearly, establishing an environment and rulings that go beyond the text of the that enables equal access to justice requires Law, thereby “filling the legal gaps in the the engagement of various sectors of law and correcting its most prominent society, including law-enforcement agencies shortcomings”. 26 This has resulted in a (for example, police and prison officials), number of rulings favourable to women.27 the judiciary (for example, courts and prosecutors) and civil society (for example, In Jordan, a recent initiative to enhance social workers and paralegals). Cooperation women’s access to justice in labour-related among these sectors and actors should matters manifests another good-practice be taken into account when assessing element of the holistic approach to justice women’s access to justice, given that all reform. Jordan has introduced some elements of the justice chain are interlinked positive legislative reforms, in particular by and affect access to justice, directly or implementing major revisions to its labour indirectly.30 Similarly, no measure should law to include protection for domestic be taken in isolation of other measures. workers (many of whom are women) and to As demonstrated in previous chapters, a agricultural workers, including guarantees discriminatory law could impact women’s of monthly salaries, minimum wages, sick right to file a complaint, to stand before leave and regulation of working hours.28 a court, and to seek judicial remedy. A These amendments are accompanied by holistic reform initiative should address inspection mechanisms established by gaps in legislation, in legal knowledge, and the Ministry of Labour in order to obligate in the justice and enforcement systems employers to adhere to the provisions of rather than focusing on one element to the the law. Such mechanisms are put into exclusion of others. Such an approach will place through the Directorate of Inspection, help to ensure that underlying principles of which is an independent directorate within equality and non-discrimination are put into the Ministry that has the task of following practice in a comprehensive manner.

Status of Arab Women Report Addressing Barriers to Women's Access to Justice: Strategies, Approaches and Good Practices Law gender non- womenOBLIGATIONS DISCRIMINATION rights constitutionINEQUALITYparity men courts women rights duties law Access balalnce prosecution rights duties

justiceequal representation Equality law rightstrials women men work equitynon-discrimination constitutions reparations opportunities duties defense human ACCESS individuals remedies treatment gender Impartial remedies EQUALITY INEQUALITY accessibility Enforcement PROTECT fullﬁl gender dignity equal- treatment treatment affordability LAWdignity obligations gender respect criminalization GBV individual implementation employmentLAW

EQUALEQUALITYPROTECTIONFAIRNESS ACCESS non-citizens individuals JUSTICE

“Access tocitizens justice is not limited to accessing courts; rather, it entailsLAW obtaining a just remedy” © life_in_a_pixel - shutterstock_113584303 51

VI. Conclusion

Access to justice is a crucial element for and affordability of judicial mechanisms, the realization of human rights and is and ensure that women are able to seek a cornerstone for the advancement of effective remedies to discrimination. women’s rights in particular. A right cannot be fully enjoyed if remedies cannot be The national constitutions of most Arab sought when that right is violated. The countries enshrine the principles of equality right of access to justice is complex and and non-discrimination. However, not all encompasses other rights, namely: (a) the constitutions incorporate explicit reference right to equality before the law and courts; to the prohibition of gender discrimination. (b) the right to equal recognition before the National constitutions further include law; (c) the right to pursue effective remedy; all elements of the right of access to and (d) the right to a fair and impartial trial. justice. However, these constitutional This study considers women’s access to guarantees are not always effectively justice in the Arab region through a review translated into non-discriminatory national of legislation, institutional structures, legislations. Discriminatory laws and procedures, and cultural factors, showing the non-criminalization of gender-based that women’s access to justice is hampered discrimination are the main obstacles at various levels by several factors. A hindering women’s access to justice summary of the main findings of the study in the Arab region. Moreover, the non- is set forth below, presented under the harmonization of existing laws leaves room categories of legislative frameworks, and of for impunity and hampers women’s ability institutional and procedural frameworks. to seek effective remedies.

A. Legislative frameworks B. Institutional and procedural frameworks The right of access to justice is affirmed in all international human rights instruments The legal orders in the Arab region are as “a basic right as well as an indispensable both civil and religious. The numerous means to combat poverty, [and] prevent and sometimes contradictory orders make and resolve conflict” .1 As such, these Arab women’s access to justice a challenge. human rights instruments uphold the right Women may not be aware of their rights of access to justice as an essential element under different legal orders, and may face in the achievement of full enjoyment of difficulty in navigating the complexity of the civil, political, economic, social and cultural multiple orders. Complicated, lengthy and rights by all individuals. States are under expensive legal procedures hinder women’s obligation to respect, protect and fulfil the enjoyment of their right to obtain remedies. right of access to justice for women as The lack of a gender-sensitive justice chain, well as men. In order to comply with these both in terms of women’s representation obligations, States must guarantee the and of the sensitization of personnel to availability, accessibility, adaptability gender-related issues, also contributes to

Status of Arab Women Report Conclusion 52

women’s limited access to justice. These article 2, obliging States to enshrine issues are compounded by women’s lack equality between men and women in of legal empowerment. All of these factors the legislative framework; and article impede women’s ability to navigate the 16.1(c), (d), (f) and (g), granting women justice chain effectively and efficiently. equal right with men with respect to rights and responsibilities during A number of initiatives have been undertaken marriage and at its dissolution, and by Arab States, NWMs and civil society in matters relating to their children, organizations to fill in the legislative guardianship, and adoption; institutional and procedural gaps that b. Ratify the Optional Protocol to CEDAW, impede women’s ability to access justice thereby allowing women to seek redress and achieve just remedy. Reform initiatives through international mechanisms once focus on the abolishment of discriminatory national legal mechanisms have been laws, the criminalization of gender-related exhausted; discrimination, the provision of legal c. Ratify the 1951 Convention on the Status aid counselling and services, the legal of Refugees; empowerment of women, and the reform d. Adopt a comprehensive and holistic of justice and police sectors. However, the approach to reform the justice chain. abovementioned initiatives are usually not undertaken in a holistic approach and, instead, 2. Legislative level tackle individual components of the justice chain in isolation from other components. As At the legislative level, the a result, such initiatives have limited impact. recommendations are as follows: In order to rectify such limitations, the study a. Amend national constitutions to prohibit argues for adopting a holistic approach to explicitly discrimination on the basis of reforming the justice chain. sex; b. Harmonize national legislation and legal C. Recommendations orders to eliminate all contradictory elements; As the study has stressed, access to justice c. Amend discriminatory provisions is not limited to accessing courts; rather, it of national legislations, particularly entails obtaining a just remedy. The policy personal status codes, and promote suggestions presented below, which are equal legal capacity by removing all aimed at enhancing women’s access to discrimination regarding legal capacity, justice and achieving just remedy, are based whether in civil or religious courts; on the framework of a holistic approach. d. Enact new laws and amend existing They target all stakeholders in accordance legislation on the protection of women with their respective roles and mandates. from family violence, promoting the accountability of perpetrators; 1. General level e. Introduce provisions in labour codes to protect women at work by sanctioning At the general level, the recommendations harassment, both psychological and are as follows: physical in nature; a. Lift reservations to all provisions of f. Amend labour codes to provide international human rights instruments. protection measures for women at In particular, lift reservations to the workplace in accordance with ILO important articles of CEDAW, including convention; 53

© Adrian Niederhaeuser- shutterstock_173268653 g. Amend labour code provisions to sectors, and ensure an equal extend protection to domestic workers distribution of women and men in and migrant domestic workers; positions within these sectors; h. Amend clauses with regard to the c. Provide sufficient funds for legal aid provision of legal aid services to all services in the national budget; types of cases (criminal and civil); d. Waive fees for legal proceedings related i. Introduce severe punishment of law- to personal status issues; enforcement officials who interfere in e. Develop gender-sensitized training legal proceedings by pressuring women programmes for the judiciary and for to withdraw complaints. the police; f. Develop programmes to legally 3. Institutional level empower women by providing simple and clear information regarding At the institutional level, the their rights and available channels of recommendations are as follows: recourse should these rights be violated; a. Increase the number of courts in order g. Engage in capacity-building activities to to ensure physical access to courts in raise the legal awareness of women in urban and rural areas; general, and rural women in particular. b. Increase women’s representation in the judiciary and the law-enforcement

Status of Arab Women Report Conclusion 54

Endnotes

Chapter I in article 14 of ICCPR. Equality of arms ensures (CEDAW). all parties have access to the same procedural 33 Committee on Economic, Social and Cultural 1 Mohamadieh, 2012. rights, and that individuals are granted all Rights, General Comment No. 16, p. 3. 2 See, for example, United Nations Development elements of a fair trial. It requires that each 34 Human Rights Committee, General Comment No. Programme (UNDP), 2005a. person has equal access to information on a 32, p. 1. 3 See Brotman and others, 2008. case brought against them, as well as adequate 35 UNDP, 2005b. 4 Moghadam and Roudi-Fahimi, 2005, p. 1. time and facilities to prepare a defense, and 36 Bahdi, 2007. 5 The obligation to “protect, respect and fulfil” that each person has access to, and is able to 37 Ibid., p. 3. human rights is indicated in Human Rights comment on, the evidence against them. Human 38 Ibid. Committee, General Comment No. 31; and Rights Committee, General Comment No. 32, p. 2. 39 United Nations Development Fund for Women, Committee on Economic, Social and Cultural 16 Ibid. 2010, p. 3. Rights, General Comment 3. 17 The Human Rights Committee emphasizes that 40 Human Rights Committee, General Comment No. 6 Somalia and the Sudan are not States parties to “the positive obligations on States Parties 4. the Convention on the Elimination of All Forms to ensure Covenant rights will only be fully 41 United Nations Development Fund for Women, of Discrimination against Women (CEDAW). On discharged if individuals are protected by the 2010, p. 3. 2 April 2014, the State of Palestine acceded to State”. Human Rights Committee, General seven international human rights treaties, among Comment No. 31, p. 3. them CEDAW. By this accession, the State of 18 Commission on Legal Empowerment of the Poor, Chapter II Palestine is bound by CEDAW as of that date. See 2008. United Nations High Commissioner for Human 19 Sepulveda Carmona, 2013, p. 1. 1 Human Rights Committee, General Comment No. Rights, 2014. 20 See Sudarshan, 2003; and Human Rights Watch, 32. 7 The topic of reservations by Arab States to 2015, p. 37. 2 Sepulveda Carmona, 2013, p. 4. CEDAW has been exhaustively studied. Most 21 Human Rights Committee General Comment No. 3 Davis and Turku, 2011, p. 1. Arab States have entered reservations to 31, para. 34, affirms that States parties must 4 Ibid. substantive Articles 2, 9(2), 15, and 16. These “further ensure that women have recourse to 5 The United Nations Universal Declaration of tackle, respectively, eliminating discrimination affordable, accessible and timely remedies, Human Rights (1948), which is available from against women in all forms, granting nationality to with legal aid and assistance as necessary, www.un.org/en/documents/udhr/ (accessed 14 children, equality before the law, and equality in to be settled in a fair hearing by a competent February 2015). marriage. Most Arab States indicate sharia and independent court or tribunal, where 6 Human Rights Committee, General Comment No. as a basis for their reservations. For more details appropriate”. 32, pp. 2-3. see Freeman, 2009. 22 See CEDAW Committee, General 7 Ibid. The term equality of arms refers to the right 8 UNDP, 2005a. Recommendation No. 28. of all parties to a proceeding to have access to 9 Sudarshan, 2013. 23 Ibid. Paragraph 32 indicates that such remedies “the same procedural rights” and thereby to be 10 International Development Law Organization, “should include different forms of reparation, able to present their case under conditions that 2013. such as monetary compensation, restitution, do not set them at a disadvantage. 11 The background papers consist of by Kandil, rehabilitation and reinstatement; measures of 8 Ibid. 2014; Oudeh, 2014; and Saghieh and Saghieh, satisfaction, such as public apologies, public 9 Human Rights Committee, General Comment No. 2014. memorials and guarantees of non-repetition; 28, p. 1. 12 See the general comments and changes in relevant laws and practices; and 10 See CEDAW Committee, General recommendations of the Committee on bringing to justice the perpetrators of violations Recommendation No. 28. Economic, Social, and Cultural Rights (available of human rights of women”. 11 Byrnes, 2012, p. 83. from http://tbinternet.ohchr.org/_layouts/ 24 CEDAW Committee, General Recommendation 12 CEDAW Committee, General Recommendation treatybodyexternal/TBSearch.aspx?Lang=en& No. 26. No. 28. Paragraph 34 notes that States parties TreatyID=9&DocTypeID=11); the Human Rights 25 Ibid., p. 12. must “further ensure that women have recourse Committee (available from http://tbinternet.ohchr. 26 United Nations General Assembly, 2005. to affordable, accessible and timely remedies, org/_layouts/treatybodyexternal/TBSearch.aspx 27 The Arab Charter on Human Rights, which is with legal aid and assistance as necessary, ?Lang=en&TreatyID=8&DocTypeID=11); and the available from www1.umn.edu/humanrts/instree/ to be settled in a fair hearing by a competent Committee on the Elimination of Discrimination arabcharter.html. and independent court or tribunal, where against Women (CEDAW Committee) (available 28 Ibid. appropriate”. from http://www2.ohchr.org/english/bodies/ 29 The African Charter on Human and Peoples’ 13 Ibid. p. 7. cedaw/comments.htm). Rights, which is available from www.achpr.org/ 14 Committee on Economic, Social and Cultural 13 International Development Law Organization, instruments/achpr/. Rights, General Comment No. 9, para. 9. 2013, p. 11. 30 UNDP, 2005b. 15 Ibid. 14 Human Rights Committee, General Comment No. 31 Milieu, 2011, p. 6. 16 See Ortoleva, 2011. 28. 32 Article 1 of the Convention on the Elimination 17 See the Committee on the Elimination of Racial 15 The principle of “equality of arms” is guaranteed of All Forms of Discrimination against Women Discrimination, General Recommendation No. 20; 55

and the Committee on the Rights of Persons with 48 Ibid. of CEDAW, provided that it does not conflict Disabilities, General Comment No. 1. 49 Ibid. with sharia. Oman and Saudi Arabia placed 18 CEDAW Committee, General Recommendation 50 Ibid. a general reservation indicating that they No. 28, para. 18. 51 Protocol to the African Charter on Human and would not comply with those provisions of the 19 Sepulveda Carmona, 2013, p. 1. Peoples’ Rights on the Rights of Women in Convention that were in contradiction with 20 Ibid., p. 4. Africa, which is available from www.achpr.org/ sharia. The declarations and reservations are 21 CEDAW Committee, General Recommendation files/instruments/women-protocol/achpr_instr_ available from https://treaties.un.org/pages/ No. 28, para. 9. proto_women_eng.pdf (accessed 14 February viewdetails.aspx?src=treaty&mtdsg_no=iv- 22 Ibid. 2015). 8&chapter=4&lang=en (accessed 14 February 23 Ibid., paras. 32-33. 52 United Nations Entity for Gender Equality and the 2015). 24 Ibid. Empowerment of Women (UN Women), 2012, 2 Optional Protocol to the Convention on the 25 Erga omnes is a legal term derived from the Latin p. 83. Elimination of All Forms of Discrimination against for “towards all”. 53 See the jurisprudence of the International Women (1999) establishes the competence of 26 Human Rights Committee, General Comment No. Criminal Tribunal of Former Yugoslavia, the the CEDAW Committee “to receive and consider 31, para. 2. International Criminal Tribunal for Rwanda, communications submitted by or on behalf of 27 Human Rights Committee, General Comment 32, the Special Court for Sierra Leone, and the individuals or groups of individuals, under the pp. 2-3. International Criminal Court. jurisdiction of a State Party, claiming to be 28 Human Rights Committee, General Comment No. 54 CEDAW Committee, General Recommendation victims of a violation of any of the rights set forth 31, para. 10. No. 30, para. 74. in the Convention by that State Party. Where 29 See Human Rights Committee, General Comment 55 Human Rights Committee, General Comment 32, a communication is submitted on behalf of 32. p. 3. individuals or groups of individuals, this shall be 30 CEDAW Committee, General recommendation 56 “Article 4, paragraph 2, of the Covenant explicitly with their consent unless the author can justify No. 28. prescribes that no derogation from the following acting on their behalf without such consent”. See 31 Ibid., para. 34. articles may be made: article 6 (right to life), the Optional Protocol, which is available from: 32 The Committee on Economic, Social and Cultural article 7 (prohibition of torture or cruel, inhuman www.ohchr.org/EN/ProfessionalInterest/Pages/ Rights, which defines these core elements in the or degrading punishment, or of medical or OPCEDAW.aspx (accessed 14 February 2015). context of economic, social and cultural rights, scientific experimentation without consent), 3 Ibid. provides the basis for the analysis presented in article 8, paragraphs 1 and 2 (prohibition of 4 CEDAW Committee, General Recommendation this study. slavery, slave-trade and servitude), article 11 No. 28, pp. 7-8. 33 Committee on Economic, Social and Cultural (prohibition of imprisonment because of inability 5 Raday, 2012, p. 1. Right, General Comment No. 13, para. 6. to fulfill a contractual obligation), article 15 (the 6 Ibid. 34 Ibid. principle of legality in the field of criminal law, 7 Constitution of the Kingdom of Bahrain, 2002, 35 Article 5 of the 1976 Optional Protocol to the i.e. the requirement of both criminal liability Article 18, which is available from www.ilo.org/ International Covenant on Civil and Political and punishment being limited to clear and dyn/natlex/natlex_browse.details?p_lang=en&p_ Rights, which is available from www.ohchr.org/ precise provisions in the law that was in place country=BHR&p_classification=01.01&p_ EN/ProfessionalInterest/Pages/OPCCPR1.aspx and applicable at the time the act or omission origin=COUNTRY&p_sortby=SORTBY_COUNTRY (accessed 14 February 2015). took place, except in cases where a later (accessed 14 February 2015). 36 The Human Rights Committee emphasizes that law imposes a lighter penalty), article 16 (the 8 The Constitution of Iraq, 2005, Article 14, which “the positive obligations on States Parties recognition of everyone as a person before is available from www.ilo.org/dyn/natlex/natlex_ to ensure Covenant rights will only be fully the law), and article 18 (freedom of thought, browse.details?p_lang=en&p_country=IRQ&p_ discharged if individuals are protected by the conscience and religion)”. Human Rights classification=01.01&p_origin=COUNTRY&p_ State”. Human Rights Committee, General Committee, General Comment No. 29. sortby=SORTBY_COUNTRY (accessed 14 Comment No. 31, p. 3. 57 United Nations General Assembly, 2005. February 2015). 37 The Arab Charter on Human Rights has been 58 United Nations Security Council, 2000. 9 The Constitution of the Hashemite Kingdom of ratified by the following ESCWA member States: 59 Ibid., p. 3, para. 11. Jordan, 1952, Article 6, which is available from Bahrain, Iraq, Jordan, Kuwait, Lebanon, Libya, 60 United Nations General Assembly, 2005. www.kinghussein.gov.jo/constitution_jo.html the State of Palestine, Qatar, Saudi Arabia, 61 CEDAW Committee, General Recommendation (accessed 14 February 2015). Syrian Arab Republic, the United Arab Emirates No. 30, p. 22. 10 The Palestinian Basic Law, 2003, which is and Yemen. 62 Ibid., p. 20. available from www.palestinianbasiclaw.org/ 38 The following ESCWA member States adhere 63 Ibid., p. 22. basic-law/2003-amended-basic-law (accessed to the African Charter on Human and Peoples’ 64 Algeria, Egypt, Morocco, the Sudan, Tunisia and 14 February 2015). Rights: Egypt, Libya, the Sudan and Tunisia. Yemen have ratified the Convention Relating to 11 The Sudan currently operates under the 39 The Arab Charter on Human Rights, which is the Status of Refugees. Interim National Constitution, which needs to available from http://www1.umn.edu/humanrts/ 65 Cautio judicatum solvi refers to payment of be replaced following the secession of South instree/loas2005.html (accessed 14 February security for legal costs. Sudan. 2015). 66 See Akram, 2013; UN Women, 2013; and Shafi, 12 The Interim National Constitution of the Republic 40 Ibid. 2014. of the Sudan, Article 15 (2), which is available 41 Ibid. from www.ilo.org/dyn/natlex/natlex_browse. 42 Ibid. details?p_lang=en&p_country=SDN&p_ 43 Ibid. Chapter III classification=01.01&p_origin=COUNTRY&p_ 44 Ibid. sortby=SORTBY_COUNTRY (accessed 14 45 Ibid., article 22. 1 Reservations were placed by the following February 2015). 46 The African Charter on Human and Peoples’ ESCWA member States: Bahrain, Iraq, Libya, 13 Constitution of the Arab Republic of Egypt, 2014, Rights, which is available from www.achpr.org/ Qatar, Syrian Arab Republic and theUnited which is available from www.sis.gov.eg/Newvr/ instruments/achpr/ (accessed 14 February 2015). Arab Emirates. Morocco made a declaration Dustor-en001.pdf (accessed 14 February 2015). 47 Ibid. expressing its commitment to apply article 2 14 Libya’s Constitution, 2011, which is available 56

from www.constituteproject.org/constitution/ 2014. 26. Libya_2011.pdf (accessed 14 February 2015). 38 ESCWA, 2012a. 12 Article 8 of Law No.293 of 2014 stipulates that a 15 The Women National Committee in Yemen 39 See Briggs, 2014; and Human Rights Watch, 2013. judicial officer who exercises pressure to force has been active in mainstreaming gender 40 Jordan, Law No. 48 of 2008 amending the a person who has been subjected to violence perspectives in the Constitution’s proposed Labour Law, which is available in Arabic to withdraw his or her complaint will face one provisions. from www.ilo.org/dyn/natlex/natlex_browse. month to three-year imprisonment, and will pay a 16 The Constitution of the Republic of Yemen, 2001, details?p_lang=en&p_country=JOR&p_ fine ranging from Lebanese pounds 20,000 ($14) which is available from www.refworld.org/ classification=01.02&p_origin=COUNTRY&p_ to 200,000 ($140). docid/3fc4c1e94.html (accessed 14 February sortby=SORTBY_COUNTRY. 13 Saghieh, 2014a. 2015). 41 Bahrain, Law No. 36 of 2012, promulgating 14 UN Women, 2014, p. 24. 17 See Institute for women’s studies in the Arab the Labour Law in the private sector, which is 15 The World Bank, 2013, p. 78. World of the Lebanese American University, available from www.ilo.org/dyn/natlex/natlex_ 16 Kandil, 2014. 2005-2006. browse.details?p_lang=en&p_country=BHR&p_ 17 Bahrain, Labour Law No. 36 of 2012, which 18 The Constitution of the United Arab Emirates, classification=01.02&p_origin=COUNTRY&p_ is available from www.legalaffairs.gov.bh/ Article 25, which is available from http:// sortby=SORTBY_COUNTRY (accessed 14 LegislationSearchDetails.aspx?id=2045#. uaecabinet.ae/en/UAEGovernment/Pages/UAE- February 2015). VCvw2fmSzTp. Constitution.aspx#.U-Jqub94www (accessed 14 42 ESCWA, 2012a, p. 4; and the World Bank, 2009, 18 Saghieh and Saghieh, 2014. February 2015). p. 6. 19 See ESCWA, 2012b. 19 The Constitution of the State of Kuwait, Article 7, 43 International Labour Organization, 2014, p. 17. 20 Detailed examples on legal aid and counselling which is available from www.kuwaitconstitution. 44 Raday, 2012, p. 4. services in the region are provided in chapter V. org/kuwaitconstitutionenglish.html (accessed 14 45 It has been argued that while “the law 21 Qafisheh, 2012, p. 180. February 2015). criminalizes a spouse’s use of threats or violence 22 Ibid., p. 179. 20 The Basic Law of Oman, 1996, Article 12, which to claim a ‘marital right to intercourse’”, it does 23 Findings of an Oxfam project entitled “Women’s is available from www.ilo.org/dyn/natlex/natlex_ not “criminalize the non-consensual violation of access to justice in the Middle East and North browse.details?p_lang=en&p_country=OMN&p_ physical integrity itself”. Human Rights Watch, Africa Region” implemented in Iraq, Jordan, classification=01.01&p_origin=COUNTRY&p_ 2014a. Lebanon and Yemen in 2014. sortby=SORTBY_COUNTRY (accessed 14 46 Mokheiber, 2014. 24 Ibid. February 2015). 47 International Federation for Human Right, and 25 Saghieh and Saghieh, 2014. 21 Constitution of Qatar, which is available from others, 2014, p. 35. 26 The High Judicial Council, which was http://portal.www.gov.qa/wps/wcm/conn 48 Saghieh and Saghieh, 2014. established in accordance with article 98 of ect/5a5512804665e3afa54fb5fd2b4ab27a/ 49 Oudeh, 2014. the amended Constitution in 2011, comprises Constitution+of+Qatar+EN.pdf?MOD=AJPERES 50 Ibid. 11 judges, namely: the President of the Court (accessed 14 February 2015). 51 Kelly, 2010, p. 4. of Cassation, the President of the Supreme 22 The Basic Law of Saudi Arabia, Article 36, which 52 Ibid. Court, the Attorney General to the Court of is available from www.saudiembassy.net/about/ 53 The study addresses other categories of non- Cassation, the two most senior judges of the country-information/laws/The_Basic_Law_Of_ citizens and the legal protection available to Court of Cassation, the three presidents of the Governance.aspx (accessed 14 February 2015). female trafficked persons and migrant workers Courts of Appeals, the most senior inspector of 23 United Nations Economic and Social Commission in previous sections. the ordinary courts, the Secretary General of for Western Asia (ESCWA), 2013a, p. 19. 54 United Nations High Commissioner for Refugees, the Ministry of Justice, and the President of the 24 Ibid., p. 20. 2014, p. 11. Court of First Instance of Amman. Accordingly, 25 Guenena and Wassef, 1999, p. 20. 55 See, generally, International Labour Organization, none of the members of the Council is elected, 26 Welchman, 2007, p. 93. 2013; and Al Karama, 2013. and certain members are directly appointed 27 Würth, 2004, p. 18. 56 International Labour Organization, 2013, pp. 8-9. by the executive branch. The President of the 28 The discussion surrounding the legality of 57 Harroff-Tavel and Nasri, 2013. Court of Cassation, who is also the President the “crime of adultery”, as manifested in 58 Ibid., p. 29. of the Judicial Council, and the President of international law, is beyond the scope of this 59 ESCWA, 2013c, p. 20. the Supreme Court, are both appointed and study. 60 Ibid., p. 22. dismissed by royal decree. Furthermore, the 29 Article 562 of the penal code of Lebanon, and Secretary General of the Ministry of Justice articles 98 and 340 of the penal code of Jordan. is appointed by the Judicial Council upon the 30 Article 351 Bahrain penal code, which is Chapter IV recommendation of the Minister of Justice. available from www.unodc.org/res/cld/ 27 The High Judicial Council is composed of the document/bhr/1976/bahrain_penal_code_html/ 1 Cusack, 2013. following 10 members: three ex-officio members, Bahrain_Penal_Code_1976.pdf 2 UN Women, 2012, p. 61. two judges elected for three years by all the 31 Hijab, 2013, p. 14. 3 International Bar Association Human Rights presidents and associate judges of the Court 32 Addati, Cassirer, and Gilchrist, 2014, p. 10. Institute, and the Open Society Foundations Arab of Cassation, and five members appointed 33 The labour code in Morocco grants three days of Regional Office, 2014, p. 30. by decree upon the proposal of the Minister paternity leave. 4 Woodrow Wilson International Center for of Justice. The Higher Judiciary Council and 34 Hijab, 2013, p. 14. Scholars, 2013, p. 12. the Minister of Justice thus share authority in 35 Jordan, Social Security Law No.1 of 2014, which 5 UNDP, 2012. recruiting, promoting and transferring judges. is available in Arabic from www.ssc.gov.jo/ 6 Kirdar, 2010. 28 In Palestine, the High Judicial Council consists Arabic/SocialSecurityLaw/Documents/temp_ 7 Associated Press, 2009. of nine members, none of whom are elected. The law2014.pdf (accessed 14 February 2015). 8 Saghieh and Saghieh, 2014. judicial authority is split into two sections: one in 36 Decisions of the Cassation Court: Decision No. 9 CEDAW Committee, 2006, para. 388. the West Bank, led by the High Judicial Council; 14/2000; Decision No. 18/2000; and Decision No. 10 Office of the High Commissioner for Human and the other in Gaza, led by the High Council of 37/2001. Saghieh and Saghieh, 2014. Rights, 2012, p. 10. Justice. 37 League of Arab States, ESCWA and UN Women, 11 United Nations Human Rights Council, 2012, para. 29 The Supreme Judicial Council consists of the 57

President of the Republic (represented by the 9 Egypt, the National Council for Women, 2013, p. 24 Ibid., p. 6. Justice Minister), acting as Chairman; the 10. 25 A number of NGOs have issued reports on their President of the Court of Cassation; the two most 10 Detailed information on the Women’s Legal dissatisfaction with the protection provided senior deputies of the President of the Court of Rights Project is available from www.ncwegypt. under Law No. 293 of 2014 on the Protection of Cassation; the Deputy Minister of the Ministry of com/index.php/en/programmes/legal-rights- Women and Family Members from Domestic Justice; the Public Prosecutor; and the Director of-women/19-egyptian-women-s-legal-rights- Violence. See, for example, see critics of of the Department of Judicial Inspection. None project-in-electronic-format (accessed 14 Baydoun, 2011; and Saghieh, 2014b. of these are elected from among the judges. February 2015). 26 Saghieh, 2014c. 30 Saghieh and Saghieh, 2014. 11 Article 78 of the Criminal Procedures Law. 27 A number of protective judicial decisions were 31 See Human Rights Watch, 2014b; and Hamill, 12 Article 426 of the Civil Procedures Law. advanced on the basis of the new law. Four 2011, p. 42. 13 Saghieh and Saghieh, 2014. judges have adopted gender-sensitive approach 14 Sibai, 2013. in their rulings. Wansa, 2014. 15 Swanson, 2009. 28 The World Bank, 2013. Chapter V 16 Article 308 of the Criminal Procedures Law. 29 Euromed Gender Equality Programme, n.d. 17 This includes the Palestinian Bar Association, 30 UNDP, 2004, p. 4. 1 Constitution of the Arab Republic of Egypt, 2014, human rights organizations and academic which is available from www.sis.gov.eg/Newvr/ institutions. Dustor-en001.pdf (accessed 14 February 2015). 18 Law Decree No. 29/2013. Chapter VI 2 Constitution of Tunisia, 2014. 19 UN Women, 2012, p. 50. 3 The Morrocan Family Code. 20 Kelly, 2010. According to the Supreme Council 1 Ibid., p. 3. 4 ESCWA, 2013b, p. 22. for Women in Bahrain, in the judiciary branch, 5 See International Development Law Organization, “the percentage of women judges out of the 2013. total number of judges in Bahrain has gradually 6 UNDP, 2004, p. 10. increased over the years during 2007-2010 from 7 The National Council for Women (NCW), which is 0.81% to 4.72%”. Bahrain, Supreme Council for available from www.ncwegypt.com/index.php/ Women, 2013. en/ (accessed 14 February 2015). 21 Morocco, Higher Planning Commission, 2009. 8 Detailed information on the Ombudsman Office 22 The Moroccan Family Code (Moudawana) of programme is available from www.ncwegypt. 2004, which is available from www.hrea.org/ com/index.php/en/services/ombeng (accessed moudawana.html (accessed 14 February 2015). 14 February 2015). 23 Byrne, Mirescu and Müller, 2007, p. 10. 58

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Available from http://www2. =articles&lang=ar. ohchr.org/english/bodies/cedaw/comments.htm. 15-00071 translating internationally guaranteed rights into practice. translating internationallyguaranteedrightsintopractice. recommendations aimedatimproving women’s accesstojustice andthereby and affordability ofwomen’s accesstojustice;and provides policy by Arab Governments toimprove theavailability, accessibility, adaptability international humanrightstreaties;reviewsthemeasurescurrently taken to which nationallegal frameworksmeettherequirementssetforth inratified facing women’s access to justice in the region, this study analyses the extent Assessing thelegal, institutionalandstructuralimpedimentschallenges their rights. citizens, toaccessjudicialprocessesandgain justremedyforviolationsof study examinestheabilityofwomeninthesecountries,bothcitizens andnon- the Syrian Arab Republic, Tunisia, theUnited Arab Emiratesand Yemen –the Libya, Morocco,Oman,theStateofPalestine, Qatar, Saudi Arabia, theSudan, ESCWA mandate–namelyBahrain,Egypt,Iraq,Jordan, Kuwait, Lebanon, in the Arab region.Focusing onwomeninthe17 countriescovered bythe human rights. The presentstudyexamineswomen’s rightofaccesstojustice and forallpeople;itisalsoarequisitetheachievement ofequalityand Access tojusticeisnotonlyarightinandofitself, applicableinallcontexts