Culture, courts, and constitutions: negotiating the balance on gender equality

• Pages: 1-272
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Rangita de Silva de Alwis
• Subject Matter: Derecho Internacional

ARTICLES

CULTURE, COURTS, AND CONSTITUTIONS:

NEGOTIATING THE BALANCE ON GENDER EQUALITY

RANGITA DE SILVA DE ALWIS*

ABSTRACT

In July 2023, opening the Human Rights Council debate on a resolution on

religious hatred and bigotry in the wake of the burning of the Qur’an in Sweden,

the United Nations High Commissioner for Human Rights, Volker Tu

¨rk argued

that “many societies are struggling with this weaponization of religious differen-

ces for political purposes.”

1

Volker Tu

¨rk, High Comm’r of Hum. Rts., United Nations, Tu

¨rk Calls on States to Combat

“the Weaponization of Religious Differences for Political Purposes” (July 11, 2023), https://www.

ohchr.org/en/statements-and-speeches/2023/07/turk-calls-states-combat-weaponization-

religious-differences.

The application of Article 20 of the International

Covenant on Civil and Political Rights (ICCPR) and its prohibitions of hate

speech is, ultimately, a matter for national law and courts to determine in a par-

ticular case. Tu

¨rk stated, “[t]hey need to do so in a manner that is consistent

with the guardrails that international human rights law provides.”

2

This state-

ment provides an impetus to examine national constitutions and court decisions

in their interpretation of cultural practice and women’s human rights.

* Rangita de Silva de Alwis is an expert member of the U.N. treaty body to the Convention on

the Elimination of Discrimination against Women. She is faculty at the University of Pennsylvania

Law School and Wharton School of Business, University of Pennsylvania and is Visiting Faculty at

the Harvard Kennedy School of Government and Senior Fellow at the Harvard Law School

Center for the Legal Profession. She is also the Hillary Rodham Clinton Distinguished Fellow on

Global Gender Equity at Georgetown Institute for Women, Peace and Security. This paper was

developed during her time as a Visitor at Oxford University, Bonavero Institute for Human Rights

and Visiting Fellow at Mansfield College during the Trinity Term in 2024. She is grateful to

Baroness Helena Kennedy KC, former Principal Mansfield College Oxford, Kate O’Regan, Head

of Bonavero Institute and former Justice of the South African Constitutional Court, Nazila

Ghanea, the Special Rapporteur on Freedom of Religion and faculty at Oxford for the inspiration

of their work. Several decades ago, Radhika Coomaraswamy, former UN Under Secretary General

encouraged her on this path of inquiry and Martha Minow, former Dean of Harvard Law School

helped her to broaden the area of inquiry. She thanks her research assistant Nabil Shaikh whose

insights and leadership have been indispensable to this project. She also thanks Claire

Fitzgibbons, Mia Hamiyeh, Aiswarya Murali, Saloni Tandon, Jillian Wolff, Yang Wei and Rachel

Kabat, all Penn Law research assistants for their help with the research. She thanks the editors of

the Georgetown Journal of International Law for their deep interest in and support of this work.

V

C 2025, Rangita de Silva de Alwis.

1.

2. Id.

1

But a more personal quest has filled my time on the Convention on the

Elimination of Discrimination against Women (CEDAW) Committee, where I

see that the tension between cultural practice and rights is the enduring wom-

en’s human rights challenge and perhaps the most profoundly complex human

rights challenge of our time. The CEDAW is the most heavily reserved treaty in

the U.N. Human Rights system and this tension between rights and religion

lies at the heart of these reservations.

3

In many regions, an ongoing hermeneutical enterprise is looking closely at

the alignment of religious practices and laws through the lenses of the human

3. Shari’a is the justification used in a majority of the reservations made by these countries, two,

MENA countries are in the majority in using contradiction with Shari’a as one of their

justifications, and three, beyond Shari’a, religion is the overarching main reason for a majority of

these countries for providing reservations, where countries like Israel, India, and Singapore do

not specify Shari’a but instead specify religion more generally in their justifications. Preliminarily,

fifteen countries have provided reservations to provisions of the CEDAW Convention, particularly

Articles 2 and 16 (Bahrain, Bangladesh, Egypt, India, Iraq, Israel, Kuwait, Libya, Malaysia,

Maldives, Mauritania, Morocco, Saudi Arabia, Singapore, Syria). Of the eight countries that have

made reservations to Article 2, five out of the eight have cited contradiction of Islamic Shari’a as

the reason: Bahrain, Bangladesh, Egypt, Libya, and Morocco.

A small percentage have also noted contradiction with their own laws and constitution.

Morocco, for example, declares a reservation to the Article insofar as it does not prejudice the

“constitutional requirement that regulate the rules of succession to the throne,” while others, like

Singapore, have said the same. Two countries, Iraq and Singapore, do not mention Shari’a

directly, however; Iraq merely states that they are providing a reservation to the Article, while

Singapore mentions contradiction with their “religious” laws, not Shari’a. Thirteen out of fifteen

countries have made reservations in some shape or form to parts of Article 16. Nine out of

thirteen of these countries, an overwhelming majority, have justified their reservations to either

specific paragraphs of Article 16 or the Article as a whole on the basis of Shari’a. Malaysia,

Mauritania, and Singapore also cite contradiction with their national laws or Constitution, while

the Maldives provides a reservation with no justification.

Interestingly, Israel, India, and Singapore provide different reasons than the other countries

for their reservations. India cites their policy of non-interference in the personal affairs of any

community without its consent, and notes that while it fully supports compulsory registration in

marriages, “it is not practical in a vast country like India with its variety of customs, religions, and

level of literacy.” Similarly, Israel provides their reservation to Article 16 to the extent that the

personal status laws binding on various religious communities in Israel do not conform with the

Article’s provisions. Singapore cites contradiction with their “religious laws,” without

specification. Beyond Articles 2 and 16, five out of fifteen countries have provided reservations to

other provisions of CEDAW. India notes that it will abide by Article 5(a) in so far as it is in

conformity with the country’s policy of non-interference in personal affairs without consent,

while Israel provides a reservation to 7(b) concerning the appointment of women to serve as

judges of religious courts where prohibited by any religious group in the country. Malaysia

expresses a reservation to Article 9(2) insofar as it is contrary to Shari’a or its Constitution, and

interprets Article 11 to mean “discrimination on the basis of equality between men and women

only.” Lastly, Mauritania provides a reservation to 13(a) insofar as it is contrary to Shari’a and its

Constitution, and Syria provides a reservation to 9(2), 15(4), and 29(1), without reason.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

2 [Vol. 56

rights framework. At the same time, women are leading some of the most excit-

ing social movements and are driving a quiet revolution to reclaim religious

practice and culture in the image of men and women. These twin approaches

are not the purpose of my inquiry. Rather, my purpose is to look at the deeply

entrenched and globally pervasive tensions between culture and women’s rights,

as enshrined in constitutions and as interpreted by courts. In framing harmful

cultural practice, I agree with Frances Raday, who posits that “the clash

between culture and gender equality, is the static, resistant version. This ver-

sion of culture . . . traditionalist culture . . . is the concern of international and

constitutional human rights jurisprudence.”

4

I also subscribe to Raday’s view

that “[r]eligion is a part of culture in its wider sense. It might even be said

that it is an integral part of culture.” At the heart of this Article is the mapping

of every country’s constitutional provision on state religion, customary law, cul-

tural norms, and freedom of expression. In terms of constitutions, we see that

God is mentioned in 109 constitutions and the term “freedom of religion” or

one of its variants appears in 184 constitutions. Forty-two countries explicitly

declare a state religion, 148 countries encode customs, and eighty-seven states

codify customary laws. Culture has the most intimate and powerful impact on

women’s lives. It is a site of struggle over power and control. It is often the locus

of gendered power relations in the family. The cultural construction of gender

determines the power relations in the family and the state. While the construc-

tion and definition of gender are deeply embedded in culture, rules about cul-

ture conceptually underlie other rules about women’s employment and

commerce, education, and women’s public participation. The discourse around

culture is supported by an invisible network of power exercised mainly by men

in the public and private spheres. Culture can circumscribe a woman’s right to

travel outside the home; get a job or pursue a trade or profession without permis-

sion; sign a contract; register a business; be the “head of household” or “head

of family”; open a bank account; choose where to live; have ownership over

property; and inherit property, as well as affect husband obedience laws.

Moreover, dowry, maher, polygamy, child marriage, virginity testing, female

genital mutilation (FGM), menstruation, feeding practices, mandatory dress

codes, and so much more are defined by culture. Given the complex nature of

the debate on culture and women’s rights, an analysis that examines the textual

authority of constitutions and the jurisprudence in national case law provides

insights into situations when rights may compete and gender equality hangs in

the balance.

I. INTRODUCTION 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II. CULTURE, LAW, AND AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . 6

4. Frances Raday, Culture, Religion, and Gender, 1 INT’L J. CONST. L. 663, 667 (2003).

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