CCPR/C/114/D/2234/2013
Appendix I
Individual opinion of Committee member Dheerujlall Seetulsingh
(partly dissenting)
1.
In paragraph 7.6 of the Views, the majority of the Committee found that the State
party violated article 26 of the Covenant in that when the author was in police custody in
2005, she was raped by three unidentified men and in 2008 authorities of the State party
caused the author to undergo without her consent a surgical operation whereby her uterus
was removed (resulting in a forced sterilization). The majority found that these two acts
constituted a specific aggression against the author as a woman. Thus the author was
discriminated against on account of her gender. There was no further elaboration on the
issue or any in-depth analysis on how article 26 was applicable to such a case. Although the
State party submitted its observations, the Committee noted that the State party had not
refuted these allegations specifically. I would respectfully disagree with the view that
article 26 finds its application in this case.
2.
In paragraph 7 of general comment No. 18 (1989) on non-discrimination,
discrimination is dealt with as follows:
the Committee believes that the term “discrimination” as used in the Covenant
should be understood to imply any distinction, exclusion, restriction or preference
which is based on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, properly birth or other status, and which
has the purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise by all persons, on an equal footing, of all rights and freedoms.
3.
Article 26 provides that all persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. The existing jurisprudence of the
Committee on sex discrimination covers laws and applications of laws which have favoured
one gender against the other, placing one at a disadvantage where such differentiation is not
reasonable. The duty of the State is to ensure that all citizens are treated equally. When it
comes to gender, men and women must be afforded the same treatment whether it concerns,
among other issues, immigration law, deportation law, matrimonial property, nationality,
income tax or unemployment benefits. Laws must be enforced in a non-discriminatory
manner. Where laws discriminate, then the legitimacy of the laws is itself in question.
These were well expatiated upon by the Committee in communications No. 35/78, Cziffra
and others v. Mauritius and No. 172/84, Broeks v. Netherlands.
4.
In the present communication the author was subjected to treatment which was
absolutely illegal and outside the law. She was arrested and imprisoned because of her
political opinions. The question of reasonable and objective criteria does not even arise as
the acts complained of are illegal acts of torture and inhuman and degrading punishment.
5.
There is little justification for the view that the author was a victim of discrimination
when she was raped in 2005 by three unidentified persons. True, she was the victim of a
severe violence of sexual nature but which had no connection with sex discrimination. In
2008 the author was a victim of another act of a sexual nature when she was operated
against her will and her uterus removed. It is not known whether men in the State party too
could have been victims of sexual violence and subjected to cruel punishment. There is also
no evidence that all women in similar circumstances in the State party are subjected to such
horrible treatment. The fact that one individual undergoes such treatment by force is no
pointer towards discrimination as such under article 26. It is difficult to connect these acts
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