FEMALE EQUALITY IN THE LEGISLATION OF THE REPUBLIC OF BELARUS (ПРАВО БЕЛАРУСИ)

Irina Kuchvalskaya, Assistant Professor of the Gomel

The international Bill of Human Rights acknowl edged worldwide as a model of relations in the law- governed democratic society laid down the complex of civil, political, economic, social, and cultural rights, which everyone should enjoy - both men and women without any exception.

It is stated in Article 8 of the Constitution of the Republic of Belarus that our state acknowledges the priority of the commonly recognised principles of the international law and provides for the accordance of the legislation to it. The section of the Constitution dealing with the citizens' rights follows almost exactly all provisions of the international Bill of Human Rights on equal liability for all people under the law, i. e. right for equal protection of rights and inalienable interests without any discrimination. Women of Belarus also have the totality of rights embodied in the Constitution. Article 35 of the Fundamental Law contains provisions on equality of men and women in the family relationships. It also grants women equal opportunities in receiving education and professional training, in work and promotion in their service (job), in socio-political, cultural and other spheres, as well as provisions on equal payment for equal work.

In compliance with the existing procedure, the Republic of Belarus joined, inter alia, a whole set of international conventions that envisage improvement of the legal status of women. The most important of these are Convention on Elimination of All Types of Discrimination against Women, Convention on Political Rights of Women, Convention on Combating Human Trade and Exploitation of Prostitution by the Third Parties. Accordingly, these documents came into force in Belarus as well.

To be sure, Article 32 of Section II of the Constitution of the Republic of Belarus defines gender equality of the citizens of Belarus in the following way: "Women are granted opportunities equal with men in education and professional training, in work and promotion in their service (job), in socio- political, cultural and other spheres of activity, as well as provision of conditions for protection of their work and healthcare". 1 "However, this formula is incorrect: a man cannot be regarded as a model enjoying rights and a woman as someone who is different from the model, but trying to catch up with it".2 Normally, the authors pay little attention to such nuances, although in reality this is far from being like that.

Criminal Law

If we consider different laws and regulations in the context of legal status of women, we will find provisions stipulating for certain benefits and privileges designed for women only.

In particular, the criminal law in force forbids applying such sentences as death penalty and life imprisonment to women. It provides for certain leniency in punishment enduring regimes in the form of imprisonment.

In real life, if we talk about instituting criminal procedures against women, the latter, when sentenced to imprisonment, find themselves, for several reasons, in the conditions much worse than those of men. For example, whereas in January 1999 correctional institutions for men were overcrowded by an average of 50 %, the only in Belarus prison for women with the capacity of 1,350 people contained 3,150 convicted. Obviously, with such conditions of confinement, actual human attitude towards culpable women is out of the question. "Forgetfulness" of the relevant officials concerning women sentenced to imprisonment coupled with unreasonably harsh policies of passing sentences to them resulted in such a situation that can be characterised by the Russian saying "we wanted it the best we could and did it the way we always do".

Administrative Law

In accordance with Article 33 of the Administrative Code of the Republic of Belarus, the penalty in the form of administrative arrest cannot be applied to pregnant women and women with children under twelve.

What originally seems to be a human provision of Administrative Law is of a controversial character. In the course of its adoption legislators must have been guided by human considerations - not to leave a child without a mother while making the latter answerable for administrative infringements. Thereby lawmakers recognised a secondary role of the father in the bringing up of a child. Furthermore, the aforementioned Administrative Code does not even define the situation resulting from an infringement, to be penalised in administrative arrest, by a single father of a child under twelve. Evidently, legislators did not even anticipate a possibility of bringing up a child by a single father. They must have proceeded from the fact that bringing up a child by a single mother is a common situation to be found everywhere. How does this regulation correspond to the provision of legislation declared in the Constitution on equal participation of both parents in the upbringing of a child? Does such an article actually contribute to the strengthening of the parents' equality in the upbringing of children or does it subconsciously cement the stereotype that in reality it is only the woman who should take care of the children?

Therefore, it is no wonder that after the dissolution of marriage, in 99 cases out of 100 children remain with their mothers. It is far from being a matter of imperfect legislation (it does not at all contradict father's desire to bring up his child in case it is in the interests of an underage dependent) or of the fact that the court is always on the side of women. The reason lies in the prevailing stereotype of the distribution of the social functions, and in the ideology of a "natural female predestination". Meanwhile, if we proceed from the principle of child's priority, fathers with higher salaries, better living conditions, good attitudes towards a child could be up to the role of an educator no worse than women. Additionally, a frequently emerging problem of non-payment of the alimony or child support would have fallen away all by itself. Fathers not living with children in many cases lament the fact that ex-wives spend the money received from them for their own needs. A jobless woman, in its turn, after handing a child over to his father, could get a required occupation, find a job and try to solve her financial problems by herself without breaking off relationships with a child living with his father who does not have difficulties like that. This alternative could also be used as a temporary measure for the settlement of some regular everyday issues, with mutual consent of both parties. Also, this way seems more effective, rather than the currently existing practice of estrangement of fathers from their children and boiling the role of father down to making money for the family, which he, incidentally, will not be able to earn anyway. Adversely, the role of woman in the family, especially not working and having no occupation, in many cases is reduced to the level of a housekeeper dependent upon her husband. If, due to some objective or subjective reasons, she suddenly falls out of favour with her husband, than her position becomes extremely difficult: she has no other income except for her husband's salary; she has no job; and her husband can leave her with children anytime without means of subsistence.

Legislators' attempt to protect to some extent interests of women having babies by way of prohibiting husband from dissolving marriage without a woman's consent during the pregnancy period and three years after the child birth seems not just ineffective, but also humiliating for a woman with proper pride. Compulsion in the area of personal relationships in no way contributes to their normalisation. Whereas settlement by state of property relations in the family constitutes a quite possible task for legislation, the introduction of judicial component into the personal relationships of family members is largely viewed as unsuccessful and futile. In this regard, Russian professor G. F. Shershenevich wrote in his time: "... With extreme diversity of ethical views of different parts of society, rules of law defining the attitude of a man towards a woman and that of parents towards children are considered too backward by the higher intellectual spheres of society. The lower strata believe them to be too radical and changing the century-long traditions. If legal standards coincide with ethical, they seem to be redundant; if they contradict each other, the struggle between them is unequal due to the secluded character and psychological elusiveness of family relationships". 3

Still existing Soviet tradition of awarding women with orders for giving birth to and bringing up five or more children is also a clumsy attempt by the state to encourage reproduction of population. An issue of involvement of a father of large family in the upbringing process logically arises. Is the bringing up of children in the family not a common matter for both spouses? If it is, then why just one side is encouraged and a father is pushed into the background? With such encouragement the state concurs to and backs up the stereotype premise that upbringing of children is an exclusively female thing. Moreover, it even opposes the spouses to each other, artificially distinguishing the one and disregarding the other.

Thus, we have to admit that numerous protectionist and prohibitive regulations of family relationships are increasingly stronger reinforcing the stereotype role of a woman as a dependent of both the state and her husband, let alone the lack of contribution to protection of women in this area. These regulations do not boost men's involvement in joint upbringing of children and in the solution of common problems. This is the way it is despite the fact that equality of men and women in family relationships is embodied not only in the provisions of the Code of Marriage and Family of the Republic of Belarus, but also in the Constitution.

Labour Legislation

Similarly, a protectionist approach towards women is also typical of labour legislation. The concept based on specific requirements to a woman and her needs as a mother constitutes its basis. Women are granted privileges during pregnancy and maternity leaves. Women bringing up three and more children or a handicapped child, single mothers with two children are given one free day per month with a payment of the average daily income. Even criminal liability was set for refusal to employ a pregnant woman.

However, along with the increase in privileges for women, their situation on the labour market is still deteriorating. Female competitiveness is dropping, the level of payment is going down and conditions of work are worsening. Fixing criminal liability for refusal to take on a pregnant woman does not help any would-be mother to get a job.

It should be acknowledged that the Soviet law of master and servant with its declared care of the working mothers proved to be absolutely unfit under the altered conditions.

Back in the Soviet times, when the state was the only employer, the status of a woman could have been to some extent regulated. It was possible, for instance, to adopt a joint resolution of the Central Committee of the Communist Party, the Presidium of the Supreme Soviet of the USSR, the Council of Ministers and the All-Union Central Council of Trade Unions and to oblige heads of enterprises, agencies and organisations to employ a fixed number of women. It was also possible to give orders to assign women to a certain number of leading positions. In the market economy, no decree will make an owner of private business take on an unwanted worker. It is exactly a woman with her numerous privileges, leaves and days off whom employers view as an unprofitable worker.

Pursuing such a policy that would make creation of jobs for women beneficial and profitable for employers appears to be the only way of improving women's status on the labour market. In this field, legislation should transform from protectionist (actually, repressive) with regard to women into the legislation boosting employment of women and encouraging equal involvement of both parents in child care.

On the level of laws and regulations, such mechanisms for the protection of women's rights in the labour sphere should be introduced: the establishment of tax benefits for enterprises with employees with a limited competitiveness; giving loans on favourable conditions for the establishment of productions for women; conclusion of profitable contracts by the state with the employees who will commit themselves to giving jobs to women that are most likely to be suffering from their rights' infringement in the employment area. This category includes, first of all, women of pre-retirement age, pregnant, handicapped, single women and mothers of large families, women who have been unemployed for a long period of time, as well as those released from prison.

Another effective way of raising women's competitiveness in the labour market is to raise their educational level and teach occupations to them that are in demand on the market.

The development of entrepreneurial activity could become a considerable breakthrough in the resolution of the women's employment problem.

Patriarchal stereotypes limit the sphere of female activity to the family, whereas involvement of women in public production is not only a desirable, but also indispensable condition for its normal functioning. For a modern woman to be able to solve equally with men the problems of financial well- being of the family, a husband should take on part of the problems associated with a child upbringing and establishment of a comfortable family atmosphere.

Obviously, the whole society is suffering much from its reestablishment of patriarchal stereotypes on all levels, including the legislation (as follows from the above facts). It would be logical to assume that patriarchal stereotypes also affect the structure of the state budget, in which particularly "female" spheres of activity - education, health care - turned out to be the most deprived in terms of funding. Concurrently, allocation of funds for the "male" activity - state machinery, force structures - is a priority and a constantly increasing one. It is the private sphere (where women are given place) that is subordinate to the public sphere - to the area of man's domain.

Despite the fact that women have proved that they can work in the law-enforcement agencies (police) as good as men, they are still prohibited to enter the educational establishments of the Ministry of Interior.

Yet, life is altering out-of-date views. Only ten years ago it was hard to imagine that 50% of all judges' positions would be taken by women. The share of women working in the investigating agencies is also approaching this level. However, the process of assigning women to prestigious and well paid positions is at a very slow pace, breaking through a great many groundless bans and restrictions.

Of course, it is na?ve to anticipate that the situation will change right away after a relevant law is adopted. To be sure, legislation plays a certain role in regulating the life of society, however, it would be a big mistake to overestimate its effect on the traditional models of human social conduct.

A very prospective direction of the real support and protection of the family is considered pursuing of the state policy providing incentives for the establishment of different family businesses, attracting all family members to joint entrepreneurial activity and establishment of farms. Aside from resolution of financial problems, it will make it possible to bring together all family members, improve their understanding and to bring up children in the course of work.

Being a certain structural unit of society, the family has such features that are not and cannot be inherent in the other entities of social relations - separate citizens, agencies, and the state. However, no law acknowledges the family as an independent entity, although it is long since the necessity to confirm its legal status has matured. Adoption of a relevant law should be accompanied by a considered mechanism of its implementation, the back up of a female status in the family, not opposing men and women, but rather their consolidating for the common responsibility for the family well-being and upbringing of children.

A worthy life in the law-governed democratic society can be built only by joint effort of free and equal individuals - men and women respecting and supporting each other, in like manner requiring mutual love and care.

1 Constitution of the Republic of Belarus, Minsk, 1997.

2 Y. V. Melnikova, "Politicheskiye prava zhenshchin i ikh realizatsiya v Belarusi", Problemy constitutsionalizma, Vol. 2 - Gender issues in the legal sphere, p. 57.

3 G. F. Shershenevich

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FEMALE EQUALITY IN THE LEGISLATION OF THE REPUBLIC OF BELARUS

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