As an important convention on human rights, the
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), adopted in 1979 by the UN General Assembly,
has a core value to oppose all forms of discrimination against
women and promote gender equality.
In this modern society, legislation is an important
guarantee of human rights. Therefore the convention requires its
signatories to incorporate the principle of equality of men and
women into their legal systems, abolish all discriminatory laws and
adopt appropriate ones prohibiting discrimination against
women.
A signatory to the convention, China has adopted
various measures to honor its commitment. It has made great efforts
and gained many achievements in promoting equality between men and
women. Now there is a complete legal system to protect women's
rights and promote gender equality.
It takes the Constitution as the basis and the Law on
the Protection of the Rights and Interests of Women as the core,
and encompasses various specific State laws and regulations,
administrative decrees and regulations enacted by various
government departments, as well as local legislation. The revised
Law on the Protection of the Rights and Interests of Women
enshrines gender equality as a basic State policy, which marks a
new step forward in terms of China honoring the
convention.
Of course, the gender equality issue has yet to be
solved due to historical factors and our current level of
development. In the legal aspect alone, the problems are as
follows:
First, the definition of discrimination against women
defined in the convention has not been incorporated into our laws.
There are technical problems here, but the attitude of legislation
is a bigger reason. Fixed concepts and behavioral traditions have
impeded the process of legally defining discrimination.
Second, there remains a vague recognition of the
status of the Law on the Protection of the Rights and Interests of
Women. This is a basic law that protects women's human rights and
promotes gender equality, whose status is only next to that of the
Constitution. Therefore, any other laws and regulation should not
conflict with the ruling of this law. But in reality, many people
cannot see its status as a basic law, or even think other general
laws should take precedence over it. Others do not think it has a
legal basis for enforcement and judicature. All of these factors
have seriously impacted on the functioning of the law.
Third, there is an absence of necessary linkage with
other laws to protect women's rights and interests and promote
gender equality. For example, the law, revised in August 2005, has
clarified the responsibilities of related departments to prevent
and stop domestic violence. Related departments should provide
relief to victims and the offenders should be held legally
responsible. But in related laws such as the Criminal Law, Criminal
Procedure Law and Regulation of Administrative Penalties for Public
Security, there is no ruling about domestic violence. There is not
even any such concept as domestic violence in the Regulation of
Administrative Penalties for Public Security, which came out on the
same day as the revised Law on the Protection of the Rights and
Interests of Women.
Fourth, some laws and regulations lack the necessary
gender consciousness.
For example, Article 18 of the Marriage Law rules that
pre-marital property that is owned by one party shall be owned by
either the husband or wife. It seems that the husband and wife are
equal. But a closer look at the real situation in China shows there
is inequality in this rule. In China, the groom usually arranges
housing while the bride takes care of obtaining consumer goods such
as the TV set and refrigerator. Once the couple gets a divorce, the
house remains as valuable as before or even appreciates however the
value of consumer goods falls or they even become worthless. This
theoretical equality covers inequality in reality.
In addition, the hotly discussed draft law on property
rights does not take into account gender equality. But in many
parts of China, traditions and bias have affected women's ability
to enjoy equal property rights. Their due rights are even deprived
by some local agreements. Some experts point out that the common
property of a family is often in the name of the male head of the
household. Women's rights and interests cannot be well protected in
the division of property during divorces. There should therefore be
stipulations to address these issues in the law on property
rights.
There are still many things to do to protect women's
rights, promote gender equality and fully implement the convention.
The government, non-governmental organizations and people from all
walks of life should implement the basic State policy on gender
equality, in order to guarantee that gender equality is
incorporated into the macro economy and mainstream decision making
for social development. Gender equality should be one of the core
values of legislation. The legal system should be improved to
guarantee women's equal rights in all aspects, abolish all kinds of
discrimination and promote the development of gender equality in
China.
The author is a professor at China Women's
University.
(China Daily March 24,
2007)
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