The obligation to engender the constitution is a firm legal obligation under the international law. International law does not permit States to evade the implementation of their international obligations under the pretext that their existing domestic laws do not allow it or are incompatible with these obligations. The main international instruments which provided for the issues of gender equality, non-discrimination and engendering the constitution are: the United Nations Charter; Universal Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and Security Council Resolution 1325.
A gender sensitive constitution is a constitution that:
adopts a gender perspective and pays attention to how issues of gender are dealt with and how provisions of the constitution impact on gender,
ensures substantive gender equality, theoretically and practically,
prohibits discrimination based on gender, ethnicity, class, color, sexual orientation, age, and other characteristics,
adopts gender sensitive language, and
contains rules and guarantees to activate this equality and empower women to exercise all their rights, including the possibility of having affirmative action measures to counter discriminatory practices against women.
There are basic principles that constitutions have to stand on and also clear criteria that no democratic constitution can ignore, especially if it is intended to be gender sensitive. Those are the principles of freedom, dignity, equality; constitutions must explicitly forbid discrimination as a basic principle that may not be ignored or disregarded. Respect for the separation of powers principle also has positive implications for women’s rights because it prevents the different branches of power from cooperating to restrict or ignore gender equality. For example, if the legislative power failed to enact laws related to women’s rights, or if the executive power insisted on ignoring the application of these rights, the independent judicial power would be the real guarantor to resort to.
A constitution must be built on a basis of full equal citizenship and on the acknowledgement that the people is the source of authority, and that no individual or group of individuals have sovereignty on it.
Secularism is very important and has serious repercussions for women’s rights and freedoms. Women also differ in terms of religion and beliefs, which makes them subject to different, and sometimes contradictory, legal systems in countries where religious or traditional authorities also exercise legal and political power.
Additionally, refusing the principle of secularism would lead to a confused formulation of the constitutional text and incongruity between the adoption of the principle of equality and the subjection of individuals to different personal status laws according to their religious belonging (which in itself amounts to discrimination).
A constitutional document must state women’s rights to exercise the freedoms they have traditionally been denied, such as their sexual and reproductive rights, the right to hold political and judicial positions. Their right to equality regarding other rights such as (the labor-related rights, rights of inheritance, freedom and equality within marriage, and the freedom to choose a spouse/partner) must not be violated. It must also ensure the protection of women from the violation of their rights under the pretext of religion or customs and women’s right to participate in public and political life.
Special bodies to ensure the exercise of the rights enshrined in the constitution, such as the sexual and reproductive rights and physical integrity and independence, must be established.
The gender sensitive nature of a constitution is also reflected in its language. The choice of words is not neutral but may instead reflect gender stereotypes which are then perpetuated by the constitutional text.
A gender sensitive constitution making process must be inclusive because:
It can be a model for future political interactions,
An inclusive gender sensitive constitution making process is more likely to result in a more inclusive constitution, and
An inclusive gender sensitive constitution making process is more likely to be sustainable.
A constitution making process must be engendered, especially in peace agreements; women and women’s rights defenders should participate in peace negotiations at all levels and have a say on the long-term peace strategies.
Whatever form they may take, interim legal regimes governing the transition period until a new constitution is adopted should themselves be gender sensitive. There should be timetables for the constitution making process. Longer constitution making processes tend to allow for higher levels of inclusion and are thus likely to result in more robust protections for women in the constitution. Certain methods of selection of the drafting body, such as proportional representation and gender quotas, are likely to yield a higher proportion of women members.
Rules such as those on the working hours of the body, its decision making method, available training, and recognition of caucuses will have an impact on the degree and quality of women members’ participation. Facilities such as sanitation, child care, transportation, and security are all likely to have a gendered impact. Both technical expertise on women’s rights and that of women’s rights defenders should inform the work of the body.
Gender sensitive civic education and awareness raising has an important impact on constitution and ratification processes. women’s rights defenders must seek to affect all public consultation opportunities in order to actually support gender equality and non-discrimination agendas and represent the interests of wide categories.
Ratification a constitution by popular referendum is risky for women if the views of the majority of the voters are not gender sensitive.
Women should remain vigilant once the constitution has been adopted and call for developing, adopting and implementing legislation on gender equality and non-discrimination.
Dr. Maya Alrahabi
Director of “Musawa/women studies center”
General coordinator of “Coalition Syrian Women for Democracy”