Saturday, March 17, 2012

Women & Draft Constitution of Palestine

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

A report titled Women and the Draft Constitution of Palestine, recently was released by the Women’s Centre for Legal Aid and Counselling, a nongovernmental organization with offices in Hebron, Ramallah, Jerusalem, and Bethlehem. (logo below right)
The report, for which I served as author, examines the Revised Third Draft of the Constitution of Palestine (text available here) from a feminist perspective. It focuses on the provisions most relevant to women. The goal of the report is to ensure that Palestinian women are not overlooked when setting the social, political, legal and governmental framework contained in a constitution for a state of Palestine.
► Part I of the report provides the necessary context for understanding the meaning and implications of the provisions of the Draft Constitution.
►► Chapters I through III provide the general background of the “Palestinian Context.”
Starting with the legal context, the last 100 years of occupation have created separate laws applicable to the West Bank, East Jerusalem, and the Gaza Strip, most of which are outdated. While law reform in other Arab and Muslim countries has begun to advance women’s rights, these reforms were largely ignored in the Occupied Palestinian Territories. Colonialism and the Israeli occupation also have undermined the formal legal system, which created a societal preference for resort to the customary legal system and religious courts for conflict resolution. These informal systems severely discriminate against women.
As to the social context, Palestinian society as a whole faces enormous difficulties, including violations of human rights by Israel, the indignities of occupation and poverty, and uncertainty under the Palestinian leadership. Women experience these difficulties differently from men and often differently from each other.
The Palestinian women’s movement reflects the diversity of Palestinian women and their experiences. Politically, this diversity has made it difficult for women to unite behind a common development and equality agenda. This lack of unity provides politicians with an excuse to ignore women’s demands for greater rights. Added to this, the Palestinian leadership regularly resorts to patriarchal nationalist rhetoric to maintain the status quo that limits women’s rights in the home and in wider society.

► Part II of the report analyzes the Draft Constitution.
►► Chapter IV describes the drafting process that included no women drafters and received little input from women’s rights activists.
In fact, few Palestinians have had the opportunity to participate in the drafting, which means the document does not reflect a societal consensus. Rather, the Draft Constitution appears to be a political compromise between the secular nationalist movement in control of the government at the time of the drafting, in 2004, and the fundamentalist religious movement that was gaining power. Instead of expressing a strategic vision for the future of Palestine, the constitution reflects the current social and political climate of insecurity, instability and danger created by the Israeli occupation. The provisions reflect a society taking comfort in tradition, culture and religion and one willing to sacrifice its rights for a sense of security.
►► Chapters V and VI provide the conceptual background for understanding recurring themes in the analysis of the Draft Constitution such as equal citizenship, the public-private divide, equality, socio-economic, cultural, civil and political rights, group rights, individual rights, negative and positive rights and the horizontal and vertical application of rights.
►► Chapter VI develops one of the most important concepts necessary for understanding the impact of the Draft Constitution on women’s rights – relational rights.
As a result of the codification of Shari’a personal status law, Palestinian women have few individual rights. Rather, they have relational rights as they receive (or are deprived of) their rights not as individuals or as members of groups, but through their personal relationships. For example, married women owe their husband a duty of obedience under Shari’a law, which means that they are not permitted to leave their homes without the permission of their husbands. Women’s access to the right to freedom of movement and the right to work then depend wholly on whether their husbands permit them to exercise the rights. (For those interested in reading more about relational rights, see my article "Relational Rights Masquerading as Individual Rights," published in the Duke Journal of Gender Law & Policy in 2008.)
►► Chapters VII-IX provide a detailed analysis of the provisions most likely to affect women keeping in mind the context of their lives.
On its face, the Third Revised Draft of the Constitution of Palestine appears to create a strong framework for women’s rights through four provisions protecting women’s equality. When read with the provisions protecting religious law, the framework crumbles.
Article 7 places personal status law under the authority of religion, which governs marriage, divorce, custody and maintenance and Article 23 expressly protects Shari’a rights. As explained in Part I, religious law severely discriminates against women. Whether the four equality provisions can be used to tackle this discrimination will depend on whether their interpreters treat religious law as ‘private’ and outside the control of government as the current government does now. Two family-related provisions of the Draft Constitution suggest that this public-private divide will remain regardless of the equality provisions, particularly as Article 35 expressly prohibits government interference in family matters with a few limitations and Article 48 protects maternal and family rights.
The Draft Constitution does not appear to transform women’s relational rights into individual rights enforceable by the state. It neither provides explicitly for the enforcement of human rights guarantees against non-governmental bodies and actors nor restricts religious law when it violates women’s rights. Read against Article 7’s protection for religious family law, women are not guaranteed, for example, access to Article 51’s right to work or Article 42’s right to education as Shari’a law grants families the right to determine for women whether they can work or study beyond a primary school education.
Overall, the report concludes that the Draft Constitution fails to address the inequalities, disadvantages and discrimination women face in accessing their rights, particularly within the family, and fails to guarantee equal citizenship including through equal access to economic and political power.

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