Rereading the Palestinian constitution from a feminist perspective


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Rereading the Palestinian constitution from a feminist perspective. A research by Hild Issa from the Palestinian Center for Peace and Democracy (PCPD)

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Rereading the Palestinian constitution from a feminist perspective

  1. 1. REREADING THE PALESTINIAN CONSTITUTION FROM A FEMINIST PERSPECTIVE By: Hilda Issa I- Introduction: A quick reading of the third draft of the Palestinian Constitution leaves the reader with the impression of gender sensitivity; a thorough reading however creates awareness that the Constitution does not give the Palestinian women their full citizenship rights on an equal basis as men. On the contrary: it creates the feeling that women are treated as second-class citizens. To achieve equality and social justice, it is preferable to reread the third draft of the Constitution from a feminist perspective. “Women’s rights have to be approached from citizenship rights.” (Saeed: 2004: 213) Some of the articles of the third draft of the Palestinian Constitution, especially the ones related to women are based on the classical theories of citizenship. These classical theories with the exception of Hobbes claim “women naturally lack the attributes and capacities of individuals” (Pateman, 1988: 6) which entitles that women are mothers and should be confined to the private sphere. Thus citizenship was attributed to women “as mothers, educating their sons in the virtues of citizenship but simultaneously excluding them from the status of citizenship.” (Voet, 1987: 19) The Palestinian Constitution adopts the liberal theories by adopting the free market economy, and when it concentrates on the Palestinians as individuals presuming them to be equal regardless of gender, ethnicity or class. The word individual is a controversial one and was considered by feminists to be “actually the bourgeois male and that this liberal individual has relied upon the role of women as wives, mothers and carers” (Yual Davis & Werbner, 1999: 42). States are divided politically, economically and socially and this division is reflected in the Constitution (the highest legal referendum) where one power in society will have more power than any other and this power is represented in the Constitution of the State. According to Shirin Rai, the state is “a network of power relations existing in cooperation and also in tension.” (Rai, 1996: 5) My 1
  2. 2. interest is in the position of women amidst these different powers in the State and in the Constitution that organizes the relationship between the authority and the citizens and is considered as the social contract that guarantees that both parties will abide by the rule of law. Marxist feminists have been hostile towards the State and they regard it as giving privileges to men and to elite women, while the liberal feminists believe in the importance of the state in the life of women and in the fact that it will reduce gender inequality. States in the Third World however, are regarded as “of critical importance in women’s lives both public and private” (Rai, 1996: 11) since in these countries women are regarded the markers of the nation and the states exert a great pressure on them, since these states are in favor of subordinating the family and in intervening through family legislation. Thus women are left with no other option other than working from inside the State. II- Literature Review: I believe that the third draft of the Palestinian Constitution is characterized by generality, ambiguity and contradictions between the different articles especially in issues related to citizenship rights, social justice and equality between the sexes. This generalization, ambiguity and contradiction affect Palestinian women in the first place. I believe that the Palestinian Constitution is not offering women the same citizenship rights as men, which made me interested in rereading the Constitution from a feminist perspective. And even some call it the father of laws since it dominates over all the legislation of the state. In short, the Constitution lays down the general legal framework of all aspects of legal activities in the state and any activity that exceeds or violates this framework is considered null and 2
  3. 3. void. (Hammad, 1:2003) William Nassar (2004) believes that the articles of the Constitution are unclear and are prepared in a general way that causes ambiguity. “What is striking is the dispersion in the distribution of the articles in the Constitution, the lack of connection between similar articles, lack of clarity of some articles, thus leaving them in a loose text that enables more than one explanation.” (Nassar, 2004: 44) Asem Khaleel (2004) also describes the Constitutional system of Palestine as ambiguous, diverse and changing. (Khaleel, 2004: 1) Prof. Nathan Brown (2003) translated and analyzed the third draft of the Constitution. Although he claims that the “Palestinian Constitution is remarkably strong on gender equality” (Brown, 2003: 3), he was unable to deny that “it is not devoid of generalities, while it does provide for a strong parliament and prime minister, the Constitution does leave some room for interpretation.” (Brown, 2003: 2) This generality, ambiguity and contradictions in the different articles affect women because some articles regard Islamic Sharia as a source of legislation while at the same time other articles adopt the international conventions and charters. Women in post colonial Muslim societies were caught up in ambiguous terms “as part-beings caught between the contradictions of universalist constitutions defining them as citizens and of Sharia derived personal status codes limiting their rights in the family.” (Kandiyoti, 2001: 52) These two issues stand in contradiction to each other and affect women because family laws are dealt with according to Islamic Sharia and not in accordance to the Universal Declaration of Human Rights. The Palestinian experience with a Constitution is highly similar to the Arab countries who, although the have experienced different experiments in their state building projects and in their constitutions which ranged from socialist principles to monarchic rules, they still all shared their adoption of Sharia and in confining the family law in accordance to it. “Despite reforms permitting educational, juridical and state institutions greater autonomy from religious authorities, Sharia inspired legislation in family and personal status codes persist even when secular laws have been adopted in every other sphere.” (Kandiyoti, 1991: 10) The different drafts of the Constitution have raised some discussion in Palestinian society and have raised the interest of some NGOs, writers, scholars and feminist academics who have written and published their comments. Of course, these writings have concentrated on many different 3
  4. 4. issues of the Constitution but what is of interest to me in this research is what has been written on women’s rights in particular. Thus throughout my review of the different articles written on the Constitution, I found that some writers (Nathan Brown, Essam Abideen and Ali Khashshan) were mainly interested in controversial political issues and were not aware of any inequality targeting women; on the contrary, they claimed that the constitution has been strong on gender issues. Ali Khashshan (the secretary general of the Drafting Subcommittee) described the Constitution as “having a lot of special articles related to women” (Khashshan, 2004: 16) and Essam Abideen believed that “the different drafts of the Constitution have emphasized the importance of the role of women in decision making and that it had clearly asked for the removal of all the obstacles that prevent women from participating in the building of their societies.” (Abideen, 2004: 7) Still others have discussed the Constitution without taking women’s issues into consideration, such as the workshop that took place in Lebanon on October 2003 with the cooperation of the Development Studies Program/BirZeit University. One of the speakers at the workshop (Murie Naser) even objected to the fact that the Palestinian nationality can pass from mothers to their children, due to the lack of a nationality law that gives this right to women and his dislike of imitating the Zionist ideology in this matter. (Murie, 2004: 30) From a feminist point of view though, the Constitution has not given the Palestinian women their full citizenship rights as it did give the Palestinian men. Academic Professor Islah Jad describes the Constitution saying: “The Constitution draft lacked a clear and systematic vision to women. The Constitution contains fragments here and there, aiming to please conflicting parties” (Jad, 2002: 11) She goes on to comment on article 19 (All Palestinians are equal before the law. They enjoy civil and political rights and bear public duties without difference or discrimination, regardless of race, gender, color, religion, political opinion, or disability………) by saying that these articles “have confined equality to the political and civic rights and did not refer to social rights. What contradicts full citizenship for women is the lack of equality in social rights” (Jad, 2002: 10) 4
  5. 5. It accommodates between bases that are hard to be accommodated. Accordingly, this association creates a state of chaos and contradiction between the various values and opinions. Most importantly, this formula shows that the most prominent form of inequality between men and women in issues related to marriage, divorce and heritage, for instance, are due to the Sharia laws. (Jad, 2002) "The proposed Constitution applies Sharia only to women and not to men. Why does the Constitution stipulates rights and duties for women according to the Sharia while men are excluded from the circle of this commitment?" (Sa'id 212:2002) 5
  6. 6. The complexity of sharia and universal laws prevails in all Arab states, because the sharia is a fundamental basis of the Islamic framework. According to Hijab, “articles of personal status codes often conflict with the constitutions of Arab countries. While the latter guarantee equal rights for all their citizens, the former extend privileges to men in the family (in the areas of marriage, divorce and child custody) which are denied to women.” (Hijab quoted in Kandiyoti, 1991:5) "These constitutional provisions are vague and strange to the constitutional text that is: it does not contain meaning. They did not clearly discuss the rights of women according to the international conventions. (Nassar, 183:2004) 6
  7. 7. "The state appears as a neutral party. It wants to incur a change but it cannot due to the opposition of the religious powers in addition to all the stereotyping about the relationship of women with Islam and the view of Islam towards women… this logic contains a lot of accommodation and hypocrisy. (Jad, 2002) "This article contradicts with what the Palestinian factions announce about their secular commitment without ignoring the role of religion in the human souls." (Hawari, 21:2004) Abu Fakher believes that stating Islam as the official religion of Palestine is a withdrawal from the idea of the democratic and secular state that was proposed by Fateh party in its famous announcement at the United Nations in October 1968, and it is a withdrawal of the speech of Yasser Arafat at the United Nations on the 13th of November 1974” (Abu Fakher, 2004: 17) A general review of the political programs and internal systems of all the Palestinian Political Parties under the PLO shows the contradiction between their secular programs and the Constitution. I believe that the growth of the Islamic Movement after 1989 created a new political situation that forced itself on the leadership of the PLO and thus on the Constitution. 7
  8. 8. Article 16 (the economic system in Palestine shall be based on the principles of a free economy) bases the Palestinian economy on the liberal theories adopted by capitalism. This policy encourages citizens to act freely and empowers the strong on behalf of the weak. Almost always the strong are men and the weak are women. “Capitalist society is one in which men as men dominate women, yet it is not this, but class domination that is fundamental to the society. It is a society in which the dominant class is composed mainly of men; yet it is not as men but as capitalists that they are dominant” (McIntosh quoted in Pringle and Watson, 1992:58) Samara (2003) believes that the weak Palestinian economy has been associated with the international economy and the trans-continental companies that increased poverty in Palestine, affected orphans, divorced women and widows. Other writers -Omar Shaban (2003) and Ahmad Majdalawi (2003) have criticized the proposed economical system in the Palestinian Constitution and have showed the risks of such an economy on the marginalized sectors in society and the poor. However, they did not refer to the effect on the situation of women nor did they refer to the fact that there are many female-headed families in Palestine. Majdalawi also discusses the market and its dependence on the individual to take over economical responsibilities. There are also some feminist scholars who criticized the free economy from a gender perspective and its effect on women. Jad describes this article as “the most dangerous and the most influencing on women especially the ones from the poor sectors.” (Jad, 2002: 9) The question that arises is: Why is the Constitution adopting the free market economy when the Palestinian national economy is weak and dependent on the Israeli economy? 8
  9. 9. III- Methodology: My research: Rereading the third draft of the Palestinian Constitution from a feminist perspective requires a text analysis approach which deals with the different articles in the Constitution related to human rights. I have chosen the methodology of qualitative research through text analysis where I study the words, the language and the different expressions that are used in the third draft of the Constitution and which reflect the ideology of the Constitution drafters. This kind of analysis does not require observation of the people, nor does it require conducting meetings or interviews. This analysis is based on studying the text without the need to communicate with the people who drafted this text. (Lindsay 1997) Constitutionalism is often associated with the political theories of Locke and Hobbes, “that government can and should be legally limited in its powers, and that its authority depends on it observing these limitations”. (Waluchow, 2004: 1) The analysis of the draft of the Palestinian Constitution is important due to the fact that the government should be legally limited while it is the one that has created the laws in the constitution. At the same time the constitution “serves as the agreed, stable framework within which controversial decisions are made”. (Waluchow, 2004: 1) Thus there is special importance to the actual wording that was chosen in drafting the constitution and which is used in decisions that affect the lives of the citizens on a daily basis. Although the literal meaning of the articles is important, it still is important to consider the factors behind the text that lead to the drafters’ intentions and the power relations behind the Constitution. The goal of a feminist approach to text analysis is to “provide a basis for challenging those textually mediated social, political and economic inequalities that continue to exist” (Walsh, 2001: 28) This analysis will challenge the text paragraphs that call for inequality in the Constitution, while they should call for equality and recognize and protect the rights of women on an equal footing as men. There is always a fear that a Constitution will be used by a dominant group in a society to secure their superior status and maintain their power. This group usually consists of men. I will begin my analysis by studying the way in which the Palestinian Constitution was drafted and the power relations behind drafting it and how some articles were written for particular powers in the society at the expense 9
  10. 10. of others. According to Foucault the state is a sovereign being from which power emanates: “the state is an overall effect of power relations, it cannot be assumed to act coherently as the agent of particular groups.” (Foucault,1980: 55). Thus this analysis has to target the power relations that had an impact on the evolution of the Constitution throughout its different drafts. It is important to give attention to the coherence and connection between the different phrases and articles of the Constitution to make sure that the articles are going on smoothly and are related to each other. His is why I will argue the generality of the Palestinian Constitution: the mixture, ambiguity and contradictions that prevail in the different articles. The Constitution should use clear language with no chance for any interpretation other than the real meaning. At one point the Constitution is secular, at another it is Islamic and in other texts it is a mixture of both. There is a lack of consistency and cohesion and the reader feels that the Constitution is riven with tensions, accommodation and contradictions. The third draft of the Palestinian Constitution tries to create some kind of accommodation between different powers in the Palestinian society. The question that arises is: who said what 10
  11. 11. and what are the reasons behind saying that? Feminists have responded to Foucault’s treatment of power and its relation to the body and sexuality. Foucault has identified the body as the principle target of power and this has been used by feminists to analyze the social control on women’s bodies. This is central to the understanding of the causes of women’s subordination. According to feminists, the oppression and subordination of women is due to the patriarchal and social structures that give power to men. Feminists believe that increased and better knowledge of patriarchal power can lead to liberation from oppression. This research does not try to establish an alternative text nor to give recommendations for changing some articles; it is just an attempt to bring up and emphasize the discrimination that is directed towards women in the Constitution, while this Constitution “is expected to be the fundamental text regulating the society and protecting the individual and not only as a visit card presented to foreigners” (Aldeeb, 2003: 2). I hope that this attempt will call 11
  12. 12. for a kind of resistance in society through further discussions, workshops and writings which might lead to exerting further pressure and thus exerting further changes in the third draft of the Constitution, which is still a draft not approved yet. According to Foucault, “there are no relations of power without resistance; the latter are all the more real and effective because they are formed right at the point where relations of power are exercised” (Foucault 1980: 142) Analysis: IVThis research is about the Palestinian Constitution, which is an important document in the Palestinian case. The Palestinian Constitution preceded the establishment of the State and included some political issues that do not usually appear in other constitutions. It represented the changing and unstable political situation that we as Palestinians are witnessing. The question is to what extent do we, as Palestinians need a Constitution, at a time when we have not yet established our state and when the Palestinian Authority has actually approved a Basic Law in Palestine! Supporters of this perspective argue that there is no need to draft a Constitution when Palestine is not a full state yet and does not have complete sovereign power. Adding to that the fact that not all of the Palestinian people are in Palestine, but are scattered all over the World. Although this group “believes in the importance of a Palestinian Constitution and regards it as an important step in itself, still they are aware to the foreign pressures that ask for the Constitution as a condition to the Palestinian State, in addition to the fact that the Constitution is being drafted under the presence of the Israeli occupation.” (Jad, 2002: 10) This, while others have a different perspective and believe that a written Palestinian Constitution is of special importance to the Palestinians who are on the verge of establishing a State. They believe that this Constitution “is needed to institutionalize the State and unite it in one political entity, to institutionalize the Palestinian political system, to reinforce the principle of the separation of the Authorities, to have a comprehensive relationship between the Palestinian civil society and the political public organizations.” (Abideen, 2004: 1) In spite of these two arguments about drafting a Constitution, a Palestinian Constitution will determine the kind of state the Palestinians will have will regulate the relationship between the Authority and the citizens and will determine the rights and freedoms of women. In fact “the first Palestinian call for a Constitution came in Algiers on November 15th, 1988, when the Palestinian National Council declared Palestinian independence and undertook to set up a democratic government 12
  13. 13. and a Constitution.” (The Middle East Media Research Institute, 2003: 1) In 1993, Yasser Arafat set up a committee to draft a Basic Law. Here a number of drafts were prepared, but were not approved. Due to international pressures, Arafat approved the Basic Law on May 29th 2002, which “was regarded as a provisional Constitution until the completion of the actual Constitution upon the establishment of an independent Palestinian state.” (The Middle East Media Research Institute, 2003: 1) Nevertheless, the involvement of the Palestinian Authority in drafting a Basic Law was not enough for reform and the international pressures continued to demand a Constitution. The Palestinian Authority has already begun working on a Constitution in the year 1999 when a legal committee headed by Dr. Nabeel Sha’at was appointed to draft a Constitution and the first draft was completed on February 14th, 2001. In July 2002, the Palestinian President issued a presidential decree to renew the work of the Committee for Drafting the Constitution who produced a second draft in February 2003, and a third one in March 2003, which was later, revised in May 2003. According to Prof. Claude Klein “the Constitutional power is first the framing power, which deals with the power to frame the Constitution and the second is the amending power.” My interest is in the framing power of the Palestinian Constitution, in analyzing it from a feminist perspective. The drafting of the Palestinian Constitution faced a lot of international pressures asking for reform. This pressure mainly came from the American government and the Quartet, as well as from the Arab countries that had an interest in the Palestinian Constitution. “According to the London Arabic language daily Al-Sharq Al-Awsat, a version of the Constitution was also given to several Arab countries.” (The Middle East Media Research Institute, 2003: 3) The fact that the Palestinian Authority shared its Constitution with several Arab countries is justified by the will of the Authority to be in accordance with Constitutions of the Arab countries in different political matters but my interest here is in those issues related to stating the religion of the State and the adoption of the Sharia as a source of legislation. Almost all the constitutions of the Arab countries have stated that Islam is the religion of the State, while they differ slightly in their adoption of the Sharia as the source of legislation. Some regard Sharia as the main and only source, while others stated that it is a major source, even others stated that the people are the source. The Palestinian Authority was unable to be much different from the constitutions of the Arab countries in issues relating to religion, to Sharia and to women’s rights and freedoms. However the Palestinian Constitution “provides for a far stronger 13
  14. 14. parliamentary system than is the norm in the Arab world.” (Brown, 2003: 3) Nonetheless, a modern Constitution “should take into consideration the modern legal development, be in conformity with the principles of human rights in their most modern formulation, and avoid the problems confronted by other Middle-Eastern countries instead of being a copy of the existing Constitutions with their defaults.” (Aldeeb, 2003: 2) On the other hand the USA and the European countries did not refer to religion in their constitutions and they stated that they are secular states and have separated religion from the state. The Committee for Drafting the Constitution that consisted of eleven men was later enlarged but still no women were added, although there are competent Palestinian women activists who could have enriched the Constitution. There was a Consultancy group that consisted of Arab and foreign experts but these were all men. Although the Palestinian Consultation Committee included 8 women out of 40 members there is no record that these women had any influence on the drafting of the Constitution, and they were not authorized to approve or disapprove any of its articles. Dr. Nabeel Shaeth (head of the Committee for Drafting the Constitution) “assured that the Committee received a lot of support from the Arab and foreign countries, such as Saudi Arabia, Egypt, Lebanon, Ireland, South Africa and Russia; the Arab support was given by prominent political personalities such as Houssni Mubarak (President of Egypt), Rafeeq Hareri (Prime Minister of Lebanon), Sauod al-Faesal (foreign minister of Saudi Arabia), Amar Musa and Esmat Abed al-Majeed.” (Abideen, 2004: 9) The Constitution drafters have declared that they have produced many different drafts of the Constitution and have published them in the local newspapers for the public to read. They declared that they have conducted 200 workshops on the Constitution with different groups, NGOs, legal and foreign figures. The prominent NGO that adopted the Constitution workshops was the Palestinian Centre for Policy and Survey Research. Throughout my review of some of the minutes taken in these workshops, I noticed that the discussion centered on various political issues but not on issues related to women. In the workshop that took place on the 16th of April 2003, one female participant asked about equality in citizenship rights in the Constitution, but no one commented. At the end of the workshop, Dr. Ali Khashshan said: “My final point is about women. There are a lot of articles concerning women and about the removal of all the obstacles that prevent women from taking part in 14
  15. 15. the political activities.” (Khashshan, 2004: 16) Although such workshops did take place, the question remains to what extent the different parties involved in these discussions were able to modify the articles in the Constitution, or were able to make it more egalitarian. "The draft constitution stressed the constitutional and Sharia rights. However, the only reference to inheritance mentioned is the Sharia one. Therefore, any controversial issue about heritage is solved in accordance with the Sharia provisions as stated by the chairman of the Constitution Drafting Committee. (Kaid, 39: 2004) Another major change between the first and third draft was the one that gave women the right to transfer their citizenship to their children, which in addition to some phrases that violated against women in a direct way were omitted, such as the phrase that concentrated on the natural role of women. A phrase which discriminates against women and which justifies the presence of women in the private sphere, depriving them of taking part in the public sphere on an equal basis as men. Although, the above mentioned modifications are a success for the women activists, I will argue that they do not guarantee the full citizenship rights of women and do not place them on an equal footing as men. Although the Constitution acknowledges the rights of women in a general and vague way; “it just gave rights and freedoms that should be given to the citizens of any state that acknowledges the right of the citizens in political participation, and these rights and freedoms as stated in the draft of the Constitution are main headings that cannot be judged on being democratic or not except when 15
  16. 16. we get to know the details in the particular laws that will be issued later.” (Kayed, 2004: 37) Article 19 states (the term Palestinian or citizen wherever it appears in the Constitution refers to male and female). In spite of this clear statement, the Constitution goes on throughout the articles to use other terms when addressing the Palestinian citizens. There is no language consistency in the articles nor is there sensitivity to gender issues. Only once did the drafters use the term Palestinian. In other articles they used ‘person’, ‘individual’ and ‘refugee’ – all used in the masculine form as if addressing men only. To avoid this sensitivity, they could have used the plural form when addressing the Palestinian citizen as the singular form is meant to address the male Palestinian only. My first point is related to the fact that the majority of the Muslim states have signed the United Nations Charter in 1945, and “thus found themselves ruled by two contradictory laws. One law gives citizens freedom of thought, while the Sharia, in its official interpretation based on obedience, condemns it” (Mernissi, 1992 : 60) The fact that the Arab States have signed this Charter indicates that they accepted what this Charter contained. The United Nations obliges any state signing the Charter to recognize that “the charter is superior to their national constitutions.” (Mernissi, 1992: 63) The dilemma begins here. Article 18 of the Universal Declaration of Human Rights states freedom of faith, which from a philosophical perspective asks for a secular state. 16
  17. 17. According to Mernissi, those Arab states that have signed the Charter and the international conventions had either to choose to adopt these new universal laws, or to hide them. “Hiding these laws, putting them behind a hijab, became the strategy and the objective” (Mernissi, 1992: 64) Mernissi believes that these Arab countries did not take the United Nations Charter and the international conventions seriously. On the contrary, “it was an arena for manipulation and hypocrisy.” (Menissi, 1992: 67) In the Palestinian Constitution there is a general reference to the universal declarations without any further details and without mentioning which of these declarations it will abide by. The Constitution drafters did not refer to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which gives women certain rights that contradict with the religious laws adopted by the Palestinian Authority and which are against the religious courts that are the main courts in Palestine. Article 2 of CEDAW states that countries have (to embody the principle of the equality of men and women in their national constitutions or other legislation if not yet incorporated therein and to ensure through law and other appropriate means the practical realization of this principle.) The drafters of the Palestinian Constitution tried to camouflage legal texts that came in conflict with freedoms of the citizens, by being very general when referring to these Conventions. Article 18 states (The State of Palestine shall abide by the Universal Declaration of Human Rights and shall seek to join other international conventions and charters that safeguard human rights.) The Constitution also refers to these conventions in article 79 stating (The government shall have the authority to conclude international agreements and treaties that the state contracts or adheres to.) Since only these two articles refer to the universal declarations, it seems that the Palestinian Constitution is not strong on adopting them and “it would be necessary to add to this article (18) “without any reservations” because the Arab countries presented so many reservations on many international conventions related to human rights, thus emptying these documents from their actual content” (Aldeeb, 2003: 5) According to Sharia “women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them.” (Hijab, 1998: 47) The Islamic law is based on complementarily, rather than equality; equivalent rather than equal right. This is justified by believing that men are responsible for the maintenance of their wives, exchanged for obedience as well as limits on her autonomy outside the home. The issue of maintenance shows inequality 17
  18. 18. between the sexes, and frees women from working; thus preventing them from getting access to the labor market. In addition, this limitation on women’s movement might prevent them from continuing their education. The constitution drafters are aware of the contradiction between the universal declarations and the Sharia, but in spite of that go on in the second part of article 23 to state: (the constitutional and Sharia rights of women shall be safeguarded; their violation shall be punishable by law. The law shall also protect their rights to Sharia inheritance) The Constitution thus guarantees both the constitutional and Sharia rights: two sources of legislation based on different principles, put together in the same article. Although it seems that both sources are legal, the Sharia laws were given priority since they are stated in a previous article in very clear wordings, and are backed in article 5 and 7. This attitude is not strange to the Palestinian Authority, which is unable to state a definite position concerning women’s rights. In a previous event, during the closing session of the model parliament, the Palestinian Authority had a similar position: “the governor arrived with a message from the President and said that they upheld freedom of thought and expression as crucial to Palestinian democracy and affirmed the President’s support for women’s rights and legal reform as long as they do not contradict Sharia.” (Hammami and Johnson, 1999: 17) At another event when the Palestinian women drafted the Declaration of Principles on Women’s Rights on the basis of equality in the hope that this document would be incorporated into the Constitution of the new Palestinian state, the response of the leadership was that such a document could be adopted unless it contradicted the Sharia. This indicates that the Palestinian Authority did already have a position on women’s rights and this position was adopted by the Constitution drafters and was reflected in the Constitution. 18
  19. 19. The same article goes on to state (The law shall strive to abolish restraints that prevent women from participation in the building of family and society). This law is supposed to apply to the citizens of Palestine who can either be male or female. So why is this law interested in women’s participation in the building and does not refer to such participation by men. Is the participation of men a right they are born with, while this same right is given to women by men? Are men first class citizens and women second class? “What feminists are confronted with is not a state that represents men’s interests as against women’s, but government conducted as if men’s interests are the only ones that exist” (Pringle & Watson, 1992: 57) This section of the article is vague and does not specify how the state (through the Constitution) is going to abolish those restraints that stand in the way of women. Giving priority to religion in the Constitution of any country violates the principles of equality in citizenship rights especially women’s rights. “If the purpose to maintain Islam as the official Palestinian religion in the Constitution is to take a partial position in favour of one group against other groups, it would be contrary to the last part of article 5 which guarantees equality. It is also contrary to article 19, which describes the Palestinians as equal without discrimination and to article 20, which provides that human rights and liberties are binding. If those who would like to maintain this expression in the 19
  20. 20. Constitution say that this article has no legal consequences, we find ourselves in front of a chattering expression which has no place in the Constitution.” (Aldeeb, 2003: 3) According to the universal declarations of human rights, women are treated on an equal footing as men. However under religious laws such as the Sharia, women are subjected to various different interpretations of the Quran, Hadeeth and Sunna, “an issue that might lead to different interpretations, as well as mixing up principles of the Sharia with the juridical judgment which often reflects social and cultural concepts.” (Habashna, 2003: 52) Sharia is applied to family law only and not to all matters related to every day life, which implicitly means that it applies to women and not to men. Kayed Azeez believes that “the text in the Palestinian Constitution which states that Islam is the formal religion, is just a slogan carried by the state, as do the other Arab countries (and) is just used for emotional reasons that are meaningless from the practical side………this raises questioning concerning the text which actually applied to the family law, from marriage, divorce and inheritance, but not applied to government, politics, economy, money and other matters.” (Azeez. 2004: 12) At the same time, these Constitutions call for the adoption of the Sharia as a main source of legislation. Although the Islamic Constitutions differ among them on how Sharia is incorporated and on the importance attached to it, all of these sates still regulate family laws according to Sharia, which is regarded as a kind of fundamental principle. “Family laws that regulate rights and responsibility in marriage, divorce, child custody and inheritance, do not provide for equality between the sexes because they have been developed within the Islamic framework in all Arab countries” (Hijab, 1998: 46) In addition to that, the Sharia has different interpretations and one of these prevents women from achieving judicial positions due to the claim that women are emotional and incapable to have such jobs. “It is well known that Islamic law, according to some interpreters, deprives women from their rights to access judiciary functions, equality in the court as witness and in inheritance.” (Aldeeb, 2003: 7) Since the Constitution confirms that Islam is the official religion, it contradicts the aspirations of the Palestinians to have a secular State and contradicts with the Palestinian Declaration of Independence which did not refer to the religion of the State of Palestine but it committed itself “to equality between the sexes, reflecting recognition of rights gained by women as well as paying tribute to the brave Palestinian woman guardian of sustenance and life, keeper of our people’s perennial flame.” (Palestinian Declaration of Principles, 1988) 20
  21. 21. My final point is related to the free market adopted by the Constitution in article 16, which states (the economic system in Palestine shall be based on the principles of a free economy, and the protection of free economic activity within the context of legitimate competition. The state may establish public companies to be regulated by law, without prejudice to the principles of a free economy and in accordance with the interest of the Palestine people) This article adopts the liberal theory as do the Capitalist states in contrast to the Arab constitutions written between the 1960s and 1970s that adopt a socialist principle. Adopting the liberal theory is due to the decrease in the profit, which decreases the role of the state in economy and is used as a reason for the reduction in the welfare given to citizens. This leads to structuralism leaving the state without public property, which will be in the hands of the rich. Services will not be given to the citizens who will be affected negatively and become poorer. Such a situation will create classes in the state; the richest will be the capitalist class who usually represent the interests of the government and the people in authority. It seems that the Constitution drafters emphasized on the free economy and the protection of companies in order to keep rights for the Authority who own these companies in Palestine. A free market gives the capitalists the chance to formulate and to dominate the Palestinian economy. Such an economy will have a negative effect on the majority of the poor, where equality and social justice will not be achieved. If poor men will be affected negatively by this proposed economy, what will happen to women in the middle and poor classes? Men will become secondclass citizens, while women will become third class citizens. Job opportunities will be open to men on the expense of women who will be prevented from taking part in the economical process in Palestine and will stay at home as a substitute and are taken into the labor force only when there is a need for them. 21
  22. 22. The Constitution acknowledges the political and civil rights of women. However, it does not concentrate on the social and economic rights, which will cost the State obligations and commitments. This attitude in the Constitution regards “women as dependents and the Constitution is unable to view the triple role of women, assuming that the man is the head of the family and the one who is responsible for work, while women are dependent financially and socially on men.” (Jubran, 2003: 200) Article 45 states (the law shall regulate the services of social security, disability and old age pensions, care for families of martyrs, prisoners, orphans, and care for those injured in the national struggle……) this article ignored the female-headed families, the unemployed women who suffer from clan and patriarchal mentality in the Palestinian society. It is worth mentioning that the Palestinian economy is weak and is dependent on the Israeli economy due to international agreements conducted between the two sides, “especially after the Paris Convention that reinforced the dependency of the Palestinian economy and restrained its development in the future.” (Majdalan, 2003: 7) V- Conclusion: After analyzing the articles of the third draft of the Constitution related to women, it was clear to me that there are a lot of contradictions between the articles, which are subject to different interpretations and might be used by some groups to manipulate other, weaker groups. The generality of the articles might give some stronger political groups the chance to produce laws that can be unfair and that protect the interests of the powerful group at the cost of others. After all, the draft of the Constitution remains simply the work of a Committee assigned by the Palestinian Authority to produce a Constitution that this Authority will approve and authorize; to produce a Constitution that is made to fit the political system that serves the Palestinian President at that time. However, the Constitution is a social contract between the citizens and the ruler, where the citizens should have the right to take part in the drafting process, either by electing a Drafting Committee to represent them or by constitutional referendum. Not one of these two options was chosen in the Palestinian case, since the citizens did not elect the Drafting Committee in the first place and the Constitution was not presented to popular referendum. Even if this present draft of the Constitution did pass to referendum, it would be passed as a whole entity, where citizens will either have the chance to accept it 22
  23. 23. or not, which makes it blind to some articles that will not have the chance to be discussed, accepted or refused. The third copy of the Constitution is still a draft and it is not clear how it will be brought into operation, or how it will be given a form of official endorsement as a provisional constitution. The second important point is the position of women in the Palestinian society, which is a controversial issue. According to the Arab culture and traditions, men are superior to women, are regarded as stronger, more powerful and thus they control women. The Palestinian woman is slightly different from the other Arab women due to her active involvement in the liberation process, in the political parties and in the civil society organizations. In response to the peace process between the Palestinians and the Israelis, the Palestinian women got engaged in the creation of a Woman’s Charter (1994), in which citizenship is based on the principle of equal rights, where men and women have equal rights as equal citizens. These Palestinian women worked hard to try to impose this equality strategy on the Palestinian Constitution. The question is whether they were successful in achieving the equality strategy in the third draft of the Constitution? Another question might be: why did the Constitution adopt the free market economy in accordance to the international economic agreements but was unable to adopt the Convention for the Elimination of All kinds of Discrimination against Women? VI- A Final Recommendation: There are different positions towards the Palestinian Constitution. The first position represented by the Drafting Committee believes that the Constitution text is a good one, the second position asks for changes and amendments on some of the articles, the third position is skeptic to the idea and importance of such a document that was drafted as part of the Road Map and is not a Palestinian priority nor a Palestinian demand. I believe in the importance of a Constitution for the Palestinians, a Constitution that is drafted by the will and participation of the Palestinian people wherever they are, a Constitution that expresses their aspirations and expectations, and a Constitution that guarantees the rights and freedoms of women and treats women as equal citizens to men. Although the Constitution needs a sovereign state, the presence of a Constitution for the Palestinians at this time when we are on the verge of establishing our state is an essential step that will preserve the rights of the 23
  24. 24. Palestinians wherever they are and will all have the chance to participate in the drafting of that Constitution whether through elected representatives or through popular referendum. Thus my recommendation is that we have to start drafting the Palestinian Constitution all over again and do it in a democratic way this time around. 24
  25. 25. Bibliography Aldeeb, Sami. 2003. Report on Third Draft of the Constitution of the State of Palestine. Lausanne: Swiss Institute of Comparative Law. Brown, Nathan. 2003. The third draft for a Palestinian State: Translation and Commentary. Ramallah: Palestinian Centre for Policy and Survey Research. Foucault, Michel. 1980. Power/Knowledge: Selected Interviews and Other Writings 1972-1977. Colin Gordo, eds. New York: Pantheon Books. Hammami Rema and Penny Johnson, 1999. “Equality with a difference: Gender and Citizenship in Transitional Palestine.” Social Politics. Oxford University Press. Hijab, Nadia. 1998. “Islam, Social Change, and the Reality of Arab Women’s Lives” in Haddad and Esposito, eds. Islam, Gender and Social Change. New York: Oxford University Press. Kandiyoti, Deniz. 2001. “The politics of Gender and the Conundrum of Citizenship” in Jospeh and Slyomovies, eds. Women and Power in the Middle East. United States of America: University of Pennsylvania Press. Kandiyoti, Deniz. 1991. Women, Islam and the State: London: Temple University Press. Khalil, Asem. 2004. Which Constitution for the Palestinian Legal System. http:// Lindsay, Prior. (1997). “Following in Foucault’s Footsteps: Texts and context in Qualitative Research Theory, Method and Practice”. David Silverman (ed), Pp62-79. London: Sage. Mernissi, Fatima. 1992. Islam and Democracy: Fear of the Modern World. Cambridge: Perseus Books Publishing. Pateman, Carol. 1988. The Sexual Contract. Cambridge: Polity Press. Pringle and Watson. 1992. “Women’s interests and the post-structuralist state” in Barrett and Phillips, eds. Destabilizing Theory: Contemporary Feminist Debates. Standord: Stanford University Press Rai and Lievesley. 1996. “Women and the State in the Third World” Rai and Lievsley eds. Women and the State: International Perspectives. London: Taylor & Francis. Ruth Lister. 1997. Citizenship: Feminist Perspectives. New York: New York University Press. 25
  26. 26. The Middle East Media Research Institute MEMRI. 2003. “About the Palestinian Constitution,” Inquiry and Analysis Series (126) 1-8 Unterhalter, Elaine. 1999. "Citizenship, Difference and Education". Yuval-Davis and Werbner, eds. Women, Citizenship and Difference. London: Zed Books. Voet, Rian. 1997. Feminism and Citizenship. London: SAGE Publication Ltd. Walsh, Clare. 2001. Gender and Discourse: language and power in politics the Church and organizations. Great Britain: Pearson Education Waluchow, Wil, “Constitutionalism”, the Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL = < archives/spr2004/entries/constitutionalism> 26
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