IAWJ Represented at UNODC’s Expert Meeting to Review A Draft Toolkit on Gender-Responsive Non-Custodial Measures 2-4 September 2019, Bangkok, Thailand

The United Nations Office on Drugs and Crime (UNODC), on September 2 to 4, 2019, convened an experts’ meeting in Bangkok, Thailand. The meeting was aimed at reviewing the draft toolkit on gender-responsive non-custodial measures, with a special focus on the specific circumstances and needs of women in contact with the criminal justice system.  UNODC is mandated to promote the use and application of the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules, General Assembly Resolution 65/229), the Convention on the Elimination of all Forms of Discrimination Against Women and other relevant instruments through the development of relevant technical tools such as handbooks, training manuals, programs and modules.  The importance of measures to promote gender equality and access to justice for all was reaffirmed in the 2030 Agenda, particularly Sustainable Development Goals 5 and 16, respectively on “Gender Equality” and “Peace, Justice and Strong Institutions.” In line with these policy priorities and relevant international standards and norms, UNODC developed the toolkit to support Member States in their efforts to build up the capacity of police, prosecutors, and judges to apply non-custodial measures.[1] The toolkit which was reviewed at the expert meeting follows a gender-responsive[2] and human rights-based approach, with a view to ensuring that women are not left behind in criminal justice and prison reforms.

The meeting, attended by approximately forty (40) experts from all over the world which included lawyers, a senator, judges, prosecutors, justice officials, parole and probation officers, jail officers, non-government organizations – reviewed and added practical insights and case studies related to the challenges of women’s imprisonment worldwide. Generally, women offenders rarely pose a risk to society: they are imprisoned for minor offences or for offences that are gender-based (e.g. adultery, prostitution, abortion or witchcraft). During trial proceedings, they are often exposed to harmful stereotypes and biases in a male-dominated criminal justice system, often facing a heavier burden of proof than men or are convicted of “moral offences” even when they are victims themselves. Prior to entry to prison, most are already victims of gender-based violence. Equally important is the reality that female incarceration comes at a huge social cost. Women being the primary caregivers in the family, their incarceration results in abandoned children and uncared for elderly relatives and overall, the breakdown of family ties.     

During the meeting, the participants explored available alternative measures to detention or incarceration, whether prior to trial (pre-trial), or during trial and sentencing, which are tailored to meet the needs of women offenders and reduce the gender-specific risks of recidivism as well as allow them to continue with their indispensable role of primary caretakers of very young children and elderly relatives. The aim of the meeting was a challenge in itself – to draft a toolkit that was concise and practical enough to be of useful application to all the concerned actors in the criminal justice system, yet universal enough to be of practical application to varied criminal jurisdictions. The expert meeting which proved to be a vibrant exchange of ideas and experiences from actors in the various criminal justice systems all over the world was both an opportunity to learn, as well as share.

The three-day meeting included a site visit to the Women’s Correctional Institute for Drug Addicts in Pathum Thani, which is Thailand’s model prison for female drug offenders. During the visit, the participants saw the various initiatives that combined measures aimed at rehabilitating women offenders from addiction and smoothly reintegrating them into society by equipping them with livelihood and social skills. The participants saw a well-resourced library of various reading materials as well as well-appointed medical facilities. Trainings included remote, on-line, as well as actual instruction, on various vocational skills – table decorating services, computer-transcription, handicraft-making, traditional Thai massage, hairdressing, and operation of industrialized sewing machines. At the end of the training, the inmates are issued certificates of completion which will be useful in helping them find employment after their release. There were also valuable partnerships with private companies which provided actual employment to some detainees including the production of rubber spare parts for an automobile company and the employment as call center agents for a communication company. A portion of the earnings from the foregoing endeavors comprise income to the prisoners which they may utilize either to buy items at the “Prisoner Welfare Shop” or to send home to family members.        

The International Association of Women Judges (IAWJ) was represented at the expert meeting by two judges, Judge Fiona Atupele Mwale from Malawi and Judge Marlo Magdoza-Malagar from the Philippines. These judges were specifically selected by UNODC in view of their work and experience on gender-responsive non-custodial measures.  

From left to right, Judge Fiona Mwale, Judge Marlo Malagar, and Senior Magistrate Cherol Ringane, Department of Justice and Constitutional Development, South Africa.

Judge Fiona Mwale is the National Training Coordinator for the Woman Judges Association of Malawi (WOJAM). Malawi is not currently running any official program on gender responsive non-custodial measures and WOJAM seeks to address the issue by holding a number of camp courts in prison. Since 2013, Judge Mwale has presided over a number of these camp courts for women serving prison sentences with their children as part of a wider prison decongestion program and as part of her mandate to ensure that no children are in jail.  Due to resource constraints in the probation system, Malawian judges do not routinely get a pre-sentencing report on the accused and as such, end up sentencing mothers with very young children to prison. With no one with whom they can leave their children, these mothers often end up bringing their children with them to jail. As the National Training Coordinator for WOJAM, Judge Mwale has devised trainings aimed at improving gender-sensitivity in the sentencing of women. To address the rampant non-availability of pre-sentence report in every trial due to the dearth of probation officers in Malawi, Judge Mwale has developed a curriculum aimed at making judicial officers aware whether the woman they are sentencing has a small child or other responsibilities. The curriculum aims at getting judicial officers to enjoin other criminal justice stakeholders to gather relevant information about the accused before sentencing. The curriculum also ensures that gathered information is credible and neutral by mandating that it outline reputable sources. Because WOJAM operates on specific project funding, Judge Mwale always ensures that “whenever we conduct training on our other projects, we mainstream issues of gender sensitive sentencing and so my work has largely focused on maximizing opportunities and available resources to ensure that women are recognized for their gender care role in the criminal justice system.”

For Judge Fiona Mwale, the experts’ meeting provided her with the opportunity to meet like-minded people from other jurisdictions as well as inspired her to make the Malawi Community Service gender-responsive. “I was very happy to meet with such a diverse group of experts who have helped me conceptualize a project aimed at making the Malawi Community Service gender-responsive. I met and interacted with an official from the Probation and After Care Service in Kenya who with the assistance with the Thai Institute of Justice have completely revolutionized the use of community service as a gender responsive approach. I have learned so many practical lessons on the relation between the court and other stakeholders that I will be taking home. The best part about the meeting for me was meeting a congresswoman from Canada who has used her expertise and position to change the plight of many women. I also met an ex- woman prisoner from Australia who is now a legal practitioner and a passionate advocate for the rights of women in custody.  She certainly brought the saying “nothing for us without us’ to life with her experiences and the programs she has been running for women over the years.”

Judge Marlo Magdoza-Malagar, a trial court judge of the Regional Trial Court of Manila witnesses the daily the plight of women undergoing trial, particularly those who are pregnant or are mothers of very minor children and sees that they are treated like any other prisoner, regardless of their “inherently different” circumstances. In November of 2018 (last year) she presented a paper before the plenary during the Women’s Rights Summit on Lisbon, Portugal, the only one from Asia to do so. Her paper, entitled “Reproductive Rights of Women in Detention in the Philippines”, highlighted the dire conditions of detained Filipino women and examined them against the standards set forth in the Bangkok Rules and the Mandela Rules. Her paper also explored the possibility of alternatives to incarceration for women, owing to their special status, as primary caregivers of minor children and elderly relatives. 

From 2011 to 2012, as the Executive Judge of the Metropolitan Trial Court of Manila, she regularly visited the prisons of Manila which is among the biggest and the most congested in the country. She also co-chaired the “Task Force Katarungan”an initiative of the International Committee of the Red Cross (ICRC) during its pilot stage. The task force was aimed at decongesting detention facilities through faster trials achieved through better coordination among the several stakeholder-agencies: the judiciary, the prosecution, the public attorneys’ office, the police, the jail staff, and the parole and probation officers. The initiative has proven to be a success and is presently being rolled out to the rest of the courts of Metro Manila as well as in other prime cities in the country. An advocate of alternative dispute resolution in place of adversarial litigation, Judge Malagar is also a lecturer/trainer in skills-based training on Judicial Dispute Resolution (JDR) aimed at fellow judges and held under the auspices of the Philippine Judicial Academy (PhilJa) of the Supreme Court. Judge Malagar acknowledges the necessity for speedy trials particularly when detention prisoners are involved, and more so, when these detention prisoners are women. 

Judge Marlo Magdoza-Malagar recognized that while to an extent, the discretion of Filipino judges particularly in the sentencing process is limited, owing to the fact that in her country, the corresponding penalties for specific crimes are already provided for in the penal statutes, judges still have discretion in the pace with which trials are conducted. She believes that trials in cases involving women with caretaking responsibilities must be given high priority. While her country is relatively developed compared to other countries in gender equality (as seen in the increased numbers of women political representatives, educated women and more gender-specific legislation aimed at workplace discrimination, domestic violence, sexual harassment and human trafficking) which has earned her country the 10thplace out of 145 countries for gender equality (see Global Gender Index of 2017), she acknowledges that strides have yet to be felt among the poorest of the poor. The gap between women who politically, academically and financially excelled and women who are domestically abused, financially unstable and who are exploited through prostitution and migrant work still remains wide. During the expert meeting, Judge Malagar, taking a cue from the law of her country, the “Anti-Violence Against Women and Their Children Act” suggested that the portion of the toolkit pertaining to gender violence should contain a more encompassing definition of “gender violence” to include not just sexual or physical violence but psychological and economic violence as well. 

Both Judge Mwale and Judge Malagar saw the meeting as a wonderful opportunity to connect with other actors in the judicial system and both are hopeful for a continued collaboration between the International Women Judges Association (IAWJ) with other agencies in the development of policies that involve their work as jurists. They believe that these opportunities provide an arena to further improve their judicial work, learn from others, as well as share their learning to others. 

This blog post was prepared by IAWJ members Judge Fiona Mwale and Judge Marlo Magdoza-Malagar.

[1]The term “non-custodial measures” refers to a wide range of measures, including pre-trial diversion and alternatives to detention before and during trial, alternatives to imprisonment at the sentencing stage, as well as to post-sentencing dispositions such as early release. See the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), General Assembly resolution, 45/110, annex, adopted on 14 December 1990.

[2]According to one definition, gender-sensitive measures merely consider and raise awareness on gender norms, roles and inequalities, whereas gender-responsive measures also include action to actively address them. See WHO, Integrating Gender into HIV/AIDS Programmes in the Health Sector: Tool to Improve Responsiveness to Women’s Needs(2009).