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III. The subordination of women in law: remarks, proposals and strategies for change

III. The subordination of women in law: remarks, proposals and strategies for change

The following remarks, and proposals and strategies for amending the laws stem from the foregoing review of rural women's subordination in Latin America and the Caribbean. Some were put forward in the case studies, at the Regional Round Table and in these pages, and may be summed up as follows:

1. The existence of discriminatory laws, the fact that the laws fail to take account of rural women's special situation, and the adherence to paternalistic and male-oriented customs which hinder the implementation of, or fill the gaps in, non-discriminatory legislation, have helped to keep rural women in a subordinate position.

2. In the previous chapter were outlined legal solutions to situations where rural women are subordinate. However, it should be remembered that, as was seen there, the laws in all the countries except Cuba are inconsistent in their treatment of women. This is because there is no reference framework covering all legislative areas with which a gender-based division of labour and its impact on rural women's personal relationships and her relationship to property and, again, on her workload, on how her work is viewed by others and on how she is constrained in her access to productive resources.

3. Any attempt to improve rural women's subordinate status and her poverty - must be backed up with an analysis of the underlying juridical problem if it is the intention to formulate strategies to bring about change and to do so in a comprehensive manner.

4. If the purpose is to improve rural woman's situation in law, then this implies providing not only for her activities as a producer but also for her reproductive role. Achieving balance, in both law and practice, as regards these two roles or spheres of activity entails repealing laws that militate against this purpose. It also entails enacting other rules and enforcement regulations that will ultimately bring about parity between rural men and women. The repealing, amending and enacting will have to take in constitutional, civic, labour and agrarian law. A woman's hours of work will have to be brought into line with those worked by a man; and due allowance must be made for the social function of motherhood; there must be equality in civil rights between the sexes and equality of opportunity of access to production resources.

5. In the attempt to achieve equality for the rural woman before the law the question needs considering as to how effective an unbiased enactment is likely to be, when biased custom and rural people's lack of confidence in the judicial system now militate against such an enactment.

1. Recommended changes in the law50

(50 This part of the recommendations is based mainly on those contained in the Regional Round Table's discussion paper and final report and does not necessarily represent FAO's position on the subject.)

1.1 Constitutional law

- It is essential to recommend that governments treat the question of equality between the sexes at Constitutional level. Constitutions should include an express declaration of equal civil, labour and agrarian rights; all secondary rules to the contrary should be repealed and mechanisms facilitating equal access to productive resources for rural men and women should be established.

1.2 Civil law

- De facto unions, with full legal and economic benefits for men and women living together in a stable relationship for a specified time, and the same rights for children born of such unions as for those born of marriage, should be recognized. Also, the absence of any prior marital commitment should no longer be a pre-condition for the recognition of de facto unions in Mexico and Venezuela.

- Marital authority (both explicit and implicit) still prevailing in several Latin-American countries should be abolished. The laws of Bolivia, the Dominican Republic, El Salvador, Guatemala, Nicaragua, Paraguay, and several Mexican states infringing a woman's personal rights and obliging her to obey her husband, to live where he wishes her to live or to give up her job where he considers it necessary, should be repealed, as should the rules in Chile, Dominican Republic, Ecuador, El Salvador, Guatemala and several Mexican states granting the husband the sole or preferential right to administer the conjugal property. Legislation should be introduced to enable husband and wife to hold joint rights and responsibilities. This will be achieved through the establishment, in all the countries, of a jointly administered family estate regime, under which the spouses have equal rights to use, administer and dispose of their joint property.

- The privileges of patria potestas, usually held by the father in the countries where this institution obtains, should be abolished.

- The repeal or amendment of this legislation represents a shift away from the concept of a single head of family to one of joint heads of family.

- The elimination of these rules from positive law* should be accompanied by a review of each country's customary laws, which are often more discriminatory than the written law.

- A serious study on reproductive work should be conducted with a view to drafting new legislation under which women would receive remuneration in the form of an allowance or be incorporated into the social security system in their own right.

- Consideration should be given to enacting Family Codes and special family courts in countries where these do not exist, with a view to simplifying legal procedure in matters concerning women, minors and the family.

- As regards succession, all the countries should include the spouse or companion among the forced heirs. With respect to succession to land allocated under agrarian laws, a provision should be introduced whereby upon the death of the allottee, the land passes to the spouse or companion, whether man or woman.

1.3 The family estate

- It would be useful if the countries having such legislation were to conduct a study to determine the type and number of family estates established and publicize the advantages of this regime. It would be interesting to know how the provisions of the agrarian reform laws concerning succession to estates are applied in practice.

- This institution should be open to the partners of consensual unions as well as to legally constituted families.

- Colombia should take the necessary steps without delay to allow land allottees to adopt the family estate regime. Under current legislation they may either opt for this system or request an individual allocation. It is suggested that incentives be introduced to encourage allottees to opt for the family estate.

- The family estate regime should be introduced in countries where no legislation to this effect exists, as a means of protecting the family's home or source of income.

1.4 Labour law

- All the clauses discriminating explicitly or implicitly against women (even where ostensibly intended to protect them), as well as the rules barring women, especially rural women, from this or that activity, should be repealed.

- A special chapter covering the situation of rural men and women should be introduced into the countries' labour laws. Special rules governing women's reproductive work and aimed, in any event, at achieving equal working conditions for rural men and women should also be established.

- In the "reproductive" area, legislation should be introduced providing for remuneration for domestic work, together with social security benefits for the women.

- Legislation to ensure that all social benefits are accessible to men and women temporary workers should be enacted.

- Legislation should be passed entitling domestic workers to a minimum wage, social security and social services.

- Although the law rules out wage discrimination on the grounds of sex, the practice continues in all the countries reviewed. To ensure that the principle of non-discrimination is observed, express provision should be made for fines as a penalty for contravention of the rules, and monitoring and inspection bodies should be established to ensure compliance.

- One recommendation for all countries concerns the need to facilitate women's membership in trade unions. This is essential if the problems standing in their way here are to be tackled.

- A serious interdisciplinary study should be launched to determine whether the different age requirement for men and women with respect to old-age pensions should be maintained.

- Rules should be drawn up to deal with the sexual abuse and blackmail of women in general, and rural women in particular.

- Legislation should be introduced whereby maternity is considered to be a social function and, thus, the responsibility of society as a whole. Rules should be made to ensure that:

- The spouse's right to receive half the working partner's social benefits and, in justifiable circumstances, half the working partner's salary, directly from the employer, should be recognized.

- Parents should be free to decide which of them will care for their child at any time after the birth.

- Given the rise in the number of women heads of household, it would seem appropriate to adopt measures to make it easier for these women to obtain enough income to be able to meet their responsibilities.

- To safeguard the family, it would be appropriate to legislate to enable spouses or regular companions to take their holidays together, even though they may work for different employers. It is also very important to provide for part-time work (and introduce the relevant regulations) - a feasible arrangement in many fields of activity.

- Again with the protection of the family in mind, maternity should be considered a social function, it being in the interest of all to protect the human race. In this connection, it is suggested that laws be enacted to ensure mass-media campaigns aimed at replacing the traditional sexual stereotypes by a more egalitarian concept.

- A serious obstacle to women's incorporation into the workforce is their role as mothers and homemakers and the general belief that the children will be neglected if the mothers work. In order to overcome a widely-felt concern, legislative measures should be taken along the following lines:

- Systems should be set up in each country to monitor the implementation of the labour laws, with heavy penalties in the event of non-compliance.

- All the countries, except Cuba and Mexico, should repeal the laws still prevailing in their Labour Codes that consider women weak and therefore incapable of doing certain jobs.

- Women should be free to decide whether or not to undertake night work.

- Women should also be free to decide if a particular type of work is too strenuous for them, rather than be barred a priori from certain activities.

- As regards health-threatening work, it would seem much more appropriate to compel employers to comply with rules guaranteeing men and women healthy working conditions.

1.5 Agrarian law

- Agrarian Law should be included in the curricula of the Faculties of Law and Agriculture so as to encourage research on the subject and thus raise lawyers' and agriculturalists' awareness of the legal problems confronting the rural sector.

- The concept of head of household as a priority requirement for the allocation of land under agrarian reform legislation should be eliminated.

- The spouse or regular companion should be included among the forced heirs for the reallocation of land under agrarian reform laws.

- The rules explicitly or implicitly discriminating against a woman's membership in organizations should be repealed. The only requirement for her to participate should be her direct involvement in work, irrespective of whether she is a landowner or wife of an organization member.

- Legislation expressly stipulating that rural women be included in organizations and provided technical assistance and training should be introduced.

- Environmental legislation should be introduced to ensure, inter alia, adequate control of insecticides and pesticides.

- Agrarian reform laws should be amended to ensure that married women may acquire land independently of their husbands.

- An assessment of the woman's situation with regard to succession to land upon the death of the husband or companion should be made through the compilation of a gender-disaggregated land register which would then be used to justify any necessary legislative amendments.

- The establishment of Agricultural Development Banks granting timely credit at low rates of interest and requiring security other than mortgages should be promoted. Special lines of credit should be set up for women as individuals or as members of production organizations.

- Appropriate teaching manuals should be prepared to help rural women understand current credit rules.

- On the subject of credit laws, it is essential to know how these are being implemented and to pinpoint the obstacles encountered so that any restrictive legislation may be repealed or amended.

- The banking rules of every country, especially those with agricultural banks, should be reviewed and simplified and guides then prepared for rural women and the peasantry in general to facilitate their access to these credit institutions. These guides should be published and accompanied by explanatory courses and translated into local languages when necessary.

2. Recommended strategies to achieve the proposed changes

- An on-going review and assessment of existing legislation and of the real-life situation should be operated in order to determine how the new rules are being applied.

- A casuistic examination should be made, and a list drawn up, of the rulings of the various courts to discern the judicial interpretation being given to the new legal rules.

- A study should be conducted to determine the rural woman's economic and social situation and the impact on her of the agrarian reform process and of labour and social security legislation. In this connection, it would also be necessary to determine the rural woman's awareness of her rights and the gaps in the legislation.

- Surveys should be carried out among rural women to determine their understanding of, and any gaps in, the provisions of the law that apply to them and to identify the specific problems requiring appropriate legislation. This would ensure that any legal reforms or new rules effectively respond to the real situation of the direct beneficiaries.

- A meeting should be held with the women's organizations, coinciding with the sort of survey suggested in the above paragraph, to determine their opinions and actual requirements in all areas, including education, law, technology and health.

- Governments should be urged to establish statistical records to be used for monitoring the social indicators relating to rural women, and to include the gender variable in all studies, projects, programmes and research.

- The State should guarantee rural women's access to formal and informal education, technical training and new technologies.

- The State should support the establishment of, and rural women's membership in, labour or trade unions, cooperatives and other forms of association, and women's integration in their respective countries' political, economic and cultural life, as well as their participation in decision-making at community, municipal, regional, federal state and national levels.

- Agricultural training programmes should be more specifically geared to rural women to bring them more effectively into the development process, since agricultural technical assistance programmes have traditionally been directed to men.

- The countries that have ratified all the international conventions on women's rights and the treaties and agreements stemming from them should see that the contents of these instruments of international law are widely known.

- In addition, efficient monitoring mechanisms and incentives should also be established to ensure that the rules are effectively complied with.

- In order to facilitate women's emancipation, measures to enhance their awareness of, and ability to publicize, their rights should be promoted, as also should projects for training women as instructors within their own local communities. The instruction materials used should include factual information on women's rights, with explanations as to how to exercise them. The training programme should also include topics such as the use of credit and how to obtain the documents needed to secure it, bookkeeping, formalities, and project administration.

- Governments and government agencies should provide legal services for rural women so as to facilitate their access to the courts.

- Institutional arrangements should be established to deal with matters of concern to women in general, and to rural women in particular. In this way the demands, stemming from women's activities and experience within their organizations, from the local level at which the relevant activities take place could be dealt with at central level.

- A change of emphasis in rural education programmes is essential: these must help promote a new attitude toward work associated with women's reproductive role, the need for the sharing of domestic tasks and for both partners' participation in productive work.

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