Human Rights of Women

However, today there are warnings of deviating from the revolutionary path. Some have even admitted the difficulty of achieving a successful result in the transition towards democracy amid an aggravated violent situation on all levels: political, economic, social and intellectual. Amid the prospects of hope and disparity, a speech purporting the observation of events and understanding reality singly advanced.

Analysts think that we are amid a historical dilemma because protesters still raise slogans that do not reflect an awareness of the specifications of the historical moment. They (the protesters) are calling for toppling the regime instead of calling for the alteration of styles, tools, practices and perceptions. They also still think that replacing a political faction with another will resolve the problems. They are also still discussing who is eligible to rule and who has legitimacy to assume power instead of discussing mechanisms to build state institutions which will continue to exist regardless of who rules.

The second dilemma is political. It was represented in the absence of rational realism because the new rulers thought that the state must be based on partisan “quotas” and controlled by the logic of zealous partisanship, swags and loyalties for those who gained legitimacy and represented the majority. So the daily political controversy in Egypt and Tunisia has become an example of making accusations, insulting, mocking, doubting intents, derogating others and desiring to exclude everyone who had any links of cooperation with the previous regimes as if the revolution’s path requires elimination and revenge. Those responsible for managing the democratic transition did not discern the seriousness of not keeping up their promises when they said they will work hard to achieve social and transitional justice to eventually establish a civil state or a citizenship country. Each month, it is confirmed that those running this phase understood democracy as a tool and a procedure not as a practice based on an upbringing that respects rights and values. They did not understand that democracy is a collective readiness to be implemented and that it is a commitment to strengthen its institutions.

The third dilemma was represented in a psychological structure which can at least be described as one living in confusion because it suffers of contradictory feelings: love and hatred, belief and doubt, optimism and desperation, mercy and vengeance… The details of the past continue to upset souls and are preventing the establishment of social interactive relations that allow coexistence and looking ahead. We are not exaggerating if we consider that the crisis of doubt has become structural: crisis between the ruler and the people, between the politicians and the people, between media figures and the people…

One must admit the seriousness of the fourth dilemma represented in an economic collapse that targeted the countries of the “Arab Spring.” A number of factors, like the absence of security and political stability and the spread of violence, has led to blocking the path of economic development and the obstruction of encouraging foreign investments. It also became difficult to convince capitalists not to flee the country. This is why poverty increased, public income rate decreased and the problem of unemployment escalated.

Since many analysts thoroughly addressed this dilemma, the intellectual dilemma was barely addressed. This pushed us to wonder: Can all these dilemmas be separated? Isn’t the youths’ (who accomplished Arab revolutions) lack of a political and intellectual background that helps them influence the people one of the reasons the revolution deviated from its aims? To what extent can the path of revolutions, whether in Egypt or other Arab countries, be analyzed using traditional lecturing tools? Why has the ideological and intellectual structuring remained absent until today as if astonishment froze the elites and made them incapable of producing new perceptions? Is it possible to speak of a state of intellectual vacuum? Why has the phenomenon of restoring the old regime and its practices and tools worsened? What did the supervisors, officials and participants in carving the milestones of the transitional path toward democracy miss?

Since it is difficult to scrutinize all aspects of this intellectual dilemma, we chose to resolve the dilemma of the difficulty of embodying the value of citizenship in the transitional phase toward democracy. We preferred to focus on the Tunisian experience which is facing difficulties in providing a suitable atmosphere that can form the concept of citizenship and that can recognize women’s citizenship despite all legislations that made Tunisian women lead by example.

Formulating a new constitution for Tunisia requires thinking of several issues that the Tunisian society addresses for the first time. They are issues that cannot be thought of in the same old manner. Their solutions cannot be inspired from old constitutions. Some of these issues are: defining the concept of citizenship and figuring out how to clarify this definition considering the immigration of several Tunisian categories. What is the situation of the Tunisians who have several nationalities? What is their relation with the country especially that we currently face a phenomenon of ‘people loyal to a certain country becoming loyal to something else’ ? What are those individuals’ social, political and economic rights? How is women’s citizenship achieved through the constitution and laws that must be amended?

Citizenship on the legal and cultural levels is very important in the modern practices of democracy. The more a state provides opportunities that enable people to perform their duties and enjoy their rights, the more it succeeds in being a citizenship country. Since previous regimes were not concerned in guaranteeing the rights of citizenship for everyone, those who took to the streets voiced how much they long to replace authoritarian regimes with civil ones that provide a system of values of freedoms, social justice, equality and dignity. Most social segments effective in the revolutionary path have confirmed their concern that new constitutions must reflect these humanitarian requests.

It turns out that understanding the complete membership citizenship is not possible without looking at the modality of the regularity of the relation between the individual and the state. This is a relation that the constitution and the laws, which are based on the former, specify. The relation includes approving equality among all citizens. Those who observe the path of formulating the Tunisian and Egyptian constitutions notice a deviation from the revolution’s requests. It is also observed that there are indications that warn of abstaining from embodying the values of citizenship.

By looking at the first and second drafts of the Tunisian constitution, we notice the difficulty of internalizing the concept of citizenship. This was shown in Article 28 in the first draft of the constitution which stipulates: “the state guarantees protecting women’s rights and supporting her gains considering she is a real partner to the man in building the country and considering that her role and his role complement one another in families. (The state also) guarantees equal opportunities between men and women in bearing different responsibilities. The state also guarantees eliminating all forms of violence against women.” If it had not been for the pressure of a group of civil society activists against the Constituent Assembly, it would not have been possible to withdraw this wording of the Article which proved most of Ennahda’s rejection to particularly approve of the principle of equality between men and women. Equality is in fact considered to be a guarantee for a solid base of legal and constitutional support that paves the way toward cancelling laws that include discrimination between men and women.

Legal experts and activists rendered faulty Ennahda MPs’ attempts to specify the relation between the man and the woman on the basis of partnership and complementation instead of treating the Tunisian woman on the basis of parity since she is after all a human self just like the man is. But the definition of the woman expressed the contrary thinking that is concerned over defining the woman as opposed to the man and not as considering her a citizen who enjoys all rights.

It can be said that these stipulations on complementation is understandable considering the Islamic background of the party and the fear of the party’s supporters that constitutionally approving of the principle of equality between men and women will lead to equality between the genders in inheritance especially that women have demanded this right before the revolution. Keep in mind that Taher Haddad was the first to bring up this issue at the beginning of the past century. In his book “Our Women in the Sharia and Society,” Haddad called for equal inheritance between females and males and considered that the “granting the male twice as the female” mentioned in the Qur’an was not among the principles of ruling. He also said that the Maqasid analysis allows considering this ruling (of granting the male twice as the female) to be linked to a special context in which the woman’s situation was fragile and that there is nothing that leads to thinking that this social legal situation of the woman is eternal.

What is certain is that accepting the principle of equality between male and female citizens and rejecting discrimination based on gender, religion or race is an embarrassing issue for Ennahda Party. The language used in the draft constitution revealed a specific understanding of equality. An understanding linked to the clashing relations based on the struggle between the genders. Therefore “complementation” was a solution or one of the legitimate tricks and a means to limit the stubbornness of women who desired to enjoy their entire rights based on parity and who wanted their rights to be constitutionalized according to a gender perspective.

Although Article 28 was amended, the wording expressing equality was controversial because there is a difference between equality in law and equality before the law as mentioned in the article and which only means enjoying the personal moral and does not necessarily mean substantially enjoying equality by law. It was behooving for those who amended the first draft of the constitution to use this wording: “all citizens have equal rights and duties, and they are equal by law and before law.”

In addition to this, the phrase “women’s rights” was not accurately stated in the draft constitution. The phrase, as we know, is used in feminist literature and by extremist movements opposing women. The phrase is also not specified through a clear reference. Legal experts and activists have advised to link the phrase to the universal legal system and to clearly include the concept of equality among citizens like it was clearly included in Article 19 of the Moroccan constitution issued in 2011. Experts also called for separating women’s rights from the issue of families because they are different. The family includes the man and the children, and the woman gains her rights as her own self and her entity is not linked to a family identity. The state has to protect women’s rights despite the women’s legal, social or marital statuses. Perhaps the transforming context also imposes stipulating the importance of the constitution’s protection to Tunisian females’ rights, especially those attained after independence.

It seems that backing up on promises and gains is a cautery present while drafting the constitution. The sharia controversy in the constitution’s foreword, the usage of complementation, the requests to constitutionalize the principle of parity in the elections and supporting this principle with that of rotation and maintaining it as one of the gains achieved by the revolution sparked reactions of officials from Ennahda Party and democratic blocs. As a result, the principle of parity was rejected in the structure of constitutional committees. This shows the absence of political will to stipulate the parity principle in the constitution. It also shows the male resistance to this principle that empowers women and makes them feel of their complete citizenship. In addition to all of this, what was mentioned in Article 43 of the second draft of the constitution is considered an announcement of intents but it does not show how to guarantee the right of voting and running for elections equally between the genders. It would have been more useful to mention the complete equality between men and women and that real legal measures will be taken to activate this equality. However those who wrote the draft only mentioned the state’s “guarantee of women’s rights and supporting her gains” and the “guarantee of equal opportunities between men and women in bearing different responsibilities.” Although these articles are important as they improve women’s rights, they are not up to the aspired level of approving the principle of parity which represents one of the demands of legal and women movements in Tunisia.

The principle of equality among citizens is considered the basis of the legal system, and it calls for the constitutional stipulation of not discriminating among citizens regarding rights and duties no matter what the citizens’ differences are. The Constituent Assembly represented in the constitution contradicts with the dedication of the principle of equality. In some articles, it only speaks of male and female citizens while in other articles, in only speaks of male citizens. This leads to different interpretations that may go as far as not granting women some rights particularly the rights of running for presidency. The deputies responsible for the current drafting of the second constitution justified this by saying that the plural male word of citizen in Arabic includes both men and women.

The decision makers in the committee of rights and freedoms justify their overlooking of the feminist activists’ recommendation to genderize the legal text by recognizing the male and female wordings by alleging that this is a formal issue. They also allege that most deputies are unaware of the presence of the argument of gender in legal studies, unaware that the principle of genderization is mentioned in international conventions of human rights.

What calls for attention here is the hesitation of the followers of the dominating bloc and others to adopt a language not based on being biased to males’ interests and the insistence to underestimate the matter. Scrutinizing the draft confirms mentioning phrases like “religion of the president,” “position of the president,” “the citizen,” “the Muslim,” “the Tunisians…” This is similar to the social cultural bias revealed through the speeches of the “new rulers” and others who speak of “lawmen,” “men [in] media,” “businessmen,” “the president” in the aspired political system, “heads of parties …” and the list goes on and on. Language based on this wording has become an institution that supports male domination which there is an aspiration to restore after “the Islamic awakening.”

This is how the male inheritance was present in the constitutional drafting. It sometimes appears spontaneously, and other times it appears despite attempts to hide. This upbringing is based on exalting the man’s value and degrading the woman’s rights. Women contributed to reproducing this upbringing because of their adaptation with the masculine thinking. Since the situation is as such, it is not strange to see that the partisan alignments of Ennahda female supporters when they vote in dedication to following orders of a party at the expense of their own selves.

What is also certain is that mysteriousness and terminological hesitation is clear in the constitution. It is shown especially on the level of principles and freedoms as we find foggy and inaccurate usages of the words “individual,” “person,” and “citizen,” and we notice the absence of using the term “human.” This causes rights and freedoms to lose legal reference known internationally and weakens them in the constitution and laws that later follow to organize them. This prudence of using the word “human” cannot be understood unless we link it to caution of universal human rights references in the constitution. This is shown clearly in Article 15 of the draft constitution which stipulates respecting international pacts unless “when it opposes the constitution’s provisions.” This wording may pace way for receding the implementation of international pacts, including, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which Tunisia agreed on in June 1959 based on the constitution back then.

It is worth noting that many concepts are being stated in political, social and cultural speeches, like equality, freedom, social justice and dignity. But the connotations of these abstract concepts are differently perceived by groups. Freedom and equality are two examples of these concepts. Therefore, it is important to define these concepts in the constitution, in addition to thinking of standards (public interest, utilitarian, legitimate right…) which are observed in order to link abstract concepts with optimum absolute values and practical reality and eventually reach consensus. It is no secret that these issues assume the presence of a cognitive structure that depends on modern tools which allow constitution makers to produce articles that reflect the aspirations and the urgent requests of the Tunisians.

The Constituent Assembly was elected to come up with a constitution that agrees with the principles of the revolution. But those who wrote the draft did not notice that the issue of not discriminating is considered a priority in every legal system. This led to including discrimination by keeping discrepancies among people on the legal and practical levels. It is not enough that the phrase “not discriminating” is mentioned in the foreword of the draft constitution. This phrase also does not represent a commitment before the state.

Background on obstacles confronting the dedication of women citizenship

It is known that those who formulate the constitution base their work on different ideological and cultural references. The severe atmosphere of ideological attraction affected their speeches and their styles of writing, formulating and amending suggestions to the extent that we find juxtaposition of concepts, terminologies and styles in an attempt to please a political party as a result of the latter’s pressure. The image of “majority” in the assembly was therefore embodied in the text of the foreword without objectivity. Objectivity is important for drafting a foreword of a democratic constitution capable of surviving. The foreword must also be above the current map of balances which will not last because there is no escape from change.

This draft constitution speaks of the different balances in the Constituent Assembly and of the difficulty to establish a participatory democracy since it is easy to figure out the logic that dominated in choosing the members of the committees, making decisions and voting. It is as easy as noticing the psychological features which ruled the people’s representatives while they wrote the first lines. The social context is ruled by logic of the winner and the loser, the superior and the inferior and the majority and the minority, along with the marginal attraction between the people of the left-wing and the people of the right-wing did not provide a healthy atmosphere to exchange points of view, listen to different opinions and understand the meaning of different visions. This situation led to inking words on paper and thus scandalizing intents and fears and indicating acrobatic tricks used to leave opportunities to decode what was written mysteriously and vaguely on purpose.

The dominating bloc seized an opportunity to run the country’s affairs and draw its future. It sought to implement its own visualization of the Tunisian constitution. It is not strange in this case that the bloc mobilizes its entire efforts to surround itself with a defensive wall that protects its interests, expresses its hopes and dreams deviating from the rule of consensus and breaking the promises to write a constitution where every Tunisian sees him/herself. The group has its excuse. After all, being a decision maker tempts to practice authoritarianism.

In addition to what was mentioned, the draft constitution implies the dilemma of reconciling between the requests of the modernists, whether they are part of Ennahda or not, and the calls made by the Salafi movements which request the establishment of the Islamic state that implements sharia and clearly announce that they are against democracy in all its forms as a system for political and social life and only adopts the “democracy of polls” as it sees in them an opportunity to gain power.

These different Salafi movements represented a visible pressuring force especially after it took out to the streets and practiced all forms of violence. This dominating bloc took this factor into consideration so it added an Islamist touch while drafting the constitution. This was clear in phrases like “criminalizing assault against sanctities,” (this was mentioned in the first draft constitution) “principles, “complementation,” the state’s handling “of facilitating marriage” and the “religion of the president.”

But Ennahda’s concern to position itself among the modern Islamic movements, like the Turkish Justice and Development Party, and its desire to provide proof that the Islamists in power does not go against democracy and human rights made its representatives at the Constituent Assembly accept including articles in the constitution that reflect this modern orientation, while envisaging a pragmatic speech full of contradictions, according to the change of the balance of powers. This led the draft constitution to swing between the Islamic reference and the modern reference. It also led to the lack of harmony in it. All of this expressed the embarrassment that Ennahda supporters find in getting involved in a universal legal system that must be accepted as a whole.

It is also not possible to overlook the patriarchy which is strongly present in formulating the constitution. The state replaced the father/leader/sheikh and became the facilitator of marriage, the sponsor of rights and guarantor of freedom of belief..This makes us wonder: Doesn’t this orientation, whether intentionally or not, reflect a visualization for the Tunisian society that goes along with the father managing the family? Doesn’t the notion of criminalizing assault against religious sanctities in the constitution go along with the father taking over the task of disciplining astray children? These politicians who were supposed to come up with amended roles in society turned into preachers mobilizing people and imposing tutelage on them under the excuse that it is the father’s responsibility to guide. This contradicts with what Arab revolutions proved. These revolutions provided proof of the extent of the citizens’ maturity and their abandonment of tutelage and speeches that aim to control them.