Updated: Apr 28, 2021
Women’s lives are constrained and enabled by numerous factors and can obviously not be reduced to a matter of national or international law. But as a human rights activist with a background in law, it is clear to me that law does play an important role in our lives. It envelopes our daily lives in ways that are sometimes very visible, but more often than not deeply embedded in the structures of our societies and the work of our authorities in ways that we tend to take for granted. Constitutions play a particularly important role since they govern how national law relates to international conventions, including human rights. Any new national law is measured against the constitution before it is passed, just as outdated laws are revised to respect the constitution or constitutional revisions.
The following is a presentation on this topic that I gave at the Roundtable on Engendering the Constitution, organised by the EuroMed Feminist Initiative IFE-EFI at Paris, 11-12 August 2020.
“The question of discriminatory laws with a constitutional basis must be understood within the wider context of how national legislation (including the constitution) relates to international treaties and mechanisms to support rights, including human rights and women’s rights. It is also necessary to consider how such laws relate to instruments such as ILO Conventions, international social services, or international law governing the protection of civilians in situations of armed conflict, protection of migrants, displaced persons and refugees.
It concerns how rights are ensured across the constitution - not only with explicit reference to women – and how various parts of the constitution are structured with respect to others; the mechanisms that enable citizens, non-citizens and organisations acting on their behalf to enforce conformity of other bodies of law with the constitution (eg public interest litigations or social interest litigations, the ombudsman system etc.). It also concerns the mechanisms and provisions that will allow legislation to constantly evolve in the direction of increased gender equality and equity, and which will prevent any future loss of progress that has been made, as guaranteed in the Tunisian constitution.
Importantly, the question of whether the constitution can actually prevent discrimination additionally concerns the different obstacles that women face in obtaining legal protection even for those rights that are stipulated by law. This includes for instance lack of information due to obscure language and excessive complexities, lack of financial means to take legal action, place of residence or geographical distances, delays within which action should be taken, prescription or not fulfilling conditions with respect to citizenship, residence or marital status, age, ability, as well as other restrictions.
Fear of reprisals by spouses, perpetrators, family, community or employers play an important role, as well as the lack of institutions ensuring the safety of women appealing to the law. Ensuring that women actually have access to any rights stipulated by law concerns media and how public opinion is shaped. But it also concerns how appointments of judges are made, the composition of members of courts or bodies of recourse, and the education of administrators and legal professionals.
Women are half of the world, and gender equity can therefore not be reduced to a limited tokenistic set of references to women’s rights. As caregivers to the elderly, children, the sick or people with disability, women are disproportionately affected by discrimination of all vulnerable groups. Particular attention is also needed with respect to groups that suffer multiple forms of discrimination, such as discrimination based on age, ability, personal or residence status, religion, ethnicity, income or class.
Women’s rights and gender equity cannot be separated from the wider issue of economic equity and guaranteeing dignity and livelihoods to the weakest sections of the population. Among the points that merit special attention is therefore to which extent the constitution and specific laws allow entering agreements on trade and tariffs that preventative measures to ensure the well-being of the population. Similar arguments hold for stipulations on the national debt, and the extent to which creditors or international financial bodies can impose austerity measures.
An excessively narrow definition of “discrimination” and “women’s rights” will therefore limit any real benefits. It is not enough to pay lip-service to a rights discourse if the constitutional basis for legislation does not address the issues that matter in women’s lives. For instance, if inheritance and land ownership is reserved to boys, farmers’ wives have to produce enough children and enough boys to make sure that a son can take over the farm. If there is no social insurance system (including retirement and the expensive health care of old age), economic dependence means that girls have no option except marrying and having numerous children who can support them when they get older. If rents and housing are not regulated, women will be forced to stay in violent marriages because there is nowhere else to live.
For all of these questions the question of hierarchies among the various legal provisions, applicable law, which laws have precedence, which courts or arbitration bodies will settle disputes, according to which procedure, and to which courts or bodies appeals can be made, all play an important role. Another important point is provisions within the constitution that may suspend rights, for instance for reasons of security and states of emergency, or if a person has been accused or convicted of some crime.
Nationality laws tend to define women as dependent on their spouse, but also affect the nationality of their children. Penal law does not effectively protect women from domestic abuse, sexual violence, sexual exploitation and harassment, or so-called “honour killing”. Penal law on public decency can specifically target women who challenge gender roles. Family law can prevent women from escaping to safety, retain custody over their children, or build new lives by moving, travelling, renting apartments, or remarrying. Laws may force rape victims to marry perpetrators, criminalise abortions after rape, or harshly punish the victims of rape for what is categorised as extra-marital sex. Besides specific discriminatory provisions in family law, continued discrimination against women is largely based on a lack of economic independence. Laws restricting inheritance, ownership of land, property, the right to run businesses, have their own bank accounts or exercise certain professions, all affect women’s situation considerably. Weak labour laws allow systematic exploitation of women as cheap labour, affecting income, pension or retirement savings, the ability to provide for their dependants, as well as affecting health.”
As in other areas of our lives, women’s issues are often understood in a restricted way, for instance looking only at the clothes we wear, questions of harassment or violence against women. In the countries of the Middle East, family law is one of the areas where women feel targeted since it governs aspects such as minimum legal age for marriage, conditions of the divorce, and the highly sensitive question of child custody. Beyond all these important issues, however, access to jobs and labour laws are fundamental for any progress in women’s conditions, since an independent income is one of the most basic questions for women’s rights globally.