PART IV: CASE STUDY: WOMEN'S RIGHTS
The human rights record in the Middle East is not a good one. Constitutionally, some states do not meet international human rights norms. For example the 1992 Basic Law of Government issued by Saudi King Fahd ibn AbdelAziz codifies the largely unwritten legal system. It does not ban discrimination on the basis of gender or religion; nor does it protect free speech, assembly or association. It does not ban torture or cruel and inhuman punishment. It simply states that the government protects human rights in accordance with the sharia.
There are many human rights issues that will have to be addressed by the Palestinians. They have already begun the process of establishing institutions that will be able to monitor human rights compliance. For instance, an independent Commission for Human Rights is being created and developed by Dr. Hanan Ashrawi, which will be independent from the government, and serve as a investigative watchdog over the conduct of various government agencies. Dr. Ashrawi has refused any official position in the new regime to work with the Commission, which will be controlled by an appointed Board. Of course its effectiveness will depend on its willingness to act independently and criticize the new government as necessary. It is only natural to anticipate that there will be numerous problems when there is no tradition of respect for human rights that any of the new decisionmakers have experienced. In addition to this quasi governmental agency, there will of course be nongovernmental watch dog groups, including the Democratic Development Unit of the Gaza Centre for Rights and Law, and the new Palestinian Institute for the Study of Democracy. Arafat has also announced the formof the Palestinian Higher Commission for Human Rights, and prominent intellectuals have formed the Palestinian Institute for Human Rights. The Institute may do public education and train public officials as well. Furthermore, the Basic Law establishes the Office of the Ombudsman where citizens can complain about government actions, as well as the right of any citizen, not only the one affected, to file suit with the judiciary.
Although there are many human rights issues, this article focuses now exclusively on a discussion of the provision of constitutional rights for the majority of the Palestinians - women. The tension for constitutionalism is evidenced by the fact that both customary and Islamic traditions sanction differential treatment on the basis of gender. But the 1988 PNC Declaration of Independence expresses the desire to improve the legal status of women. Additionally, the Draft Basic Law contains an article that men and women are equal under the law, as well as a provision that there shall be no discrimination on the basis of sex. Furthermore, a women's technical committee headed by leading activist Zahira Kamal is designing a draft women's bill of rights, "which is seen as a mobilizing tool to show the interests and strength of women prior to the introduction of key pieces of legislation, like a constitution."
The issue of improving women's constitutional status is a profound one because deeply rooted customary and religious attitudes are difficult to eradicate through the passage of new laws, even if imposed by newly elected popular regimes. Efforts to grant women a legal status not on par with their social and cultural status often fail due to lack of legitimacy in the community. Often women's actual social status under custom gives women more equality than their status under religious law, but less equality than their position under secular law. While some sectors of the society will favor equalizing women's status, other sectors may vehemently oppose such reformation. In the Occupied Territories, sizable communities of Islamic fundamentalists and other traditionalists fall into this latter category. Even the analysis of women's current status is intricate because of the complex intertwining of the customary and religious heritages. Much of what is considered Islamic was drawn from pre-existing seventh century customary law, and much of what is considered custom has been influenced by Islamic precepts. The "fusion of religiously introduced standards and precepts with customary law [has been] central to the general process of legal development in Islam." Also, both Islam and custom have been impacted subsequently by colonial law, making what today is called custom or religion, in actuality, a response to that impact as well. It is therefore difficult to delineate clearly the influence of the two traditions as opposed to other influences.
Nevertheless, Part IVA of the article attempts to appraise the role that custom and religion have played historically with respect to women's rights. Regarding the role of religion, this part details the impact on women's legal status of the Islamic heritage of the vast majority of Palestinians. While there are probably many possibilities for improving the status of women, Part IVB examines three interrelated options. Part IVB 1 begins the discussion for ameliorating that status by focusing on the potentiality for reinterpretation of Islam as proposed by Islamic and feminist scholars. Part IVB 2 highlights options for codification of constitutional rights through the adoption of international human rights norms. Part IVB 3 proposes building upon the changes wrought by the intifada, and concludes that successful constitutional reform is only likely to occur to the degree it reflects other societal change.
A. The Impact of Custom and Islamic Heritage on Women's Rights