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

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. 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. 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
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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)
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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)
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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)
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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.
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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?
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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
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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
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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
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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
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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. 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
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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
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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.
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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
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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.
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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. 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)
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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.
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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. 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
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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.
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