B. Constitutional Legal Reforms

This part of the article discusses major possibilities for constitutional legal reform. In revising, Palestinian leaders might consider whether they are interested in adopting tinkering, following, or leading law reform in each of the areas under consideration. Tinkering basically implies accepting the legal status quo, and merely making tiny adjustments around the margins, e.g. hiring more judges if the backlog becomes overwhelming. Following law reform responds to societal change, such as lowering the voting age to reflect the perceived increased maturity of youth. Tinkering and following reforms are least likely to be resisted by the public since they do not greatly impact the existing legal regime or social customs. Leading law reform, on the other hand, utilizes law to implement societal change rather than merely respond to such modifications. While leading law reform characterizes the bulk of modern major law reform, it is often the most likely to be resisted since it greatly impacts existing societal customs and religious norms. In some instances, Palestinian leaders may prefer tinkering or following reform to minimize societal upheaval in a population that has undergone massive disruption over the twenty-five years of occupation. In other cases, leaders may decide that the particular legal principle is important enough to undertake leading reform, in spite of predictable opposition, especially from traditionalist groups.

In addition to the equality and anti-discrimination clauses already in the Draft Basic Law, I propose that Palestinian decisionmakers adopt additional examples of leading law reform. There should be a clause that discusses the need for affirmative action or positive measures to improve the status of women. Since there is going to be substantial resistance to these proposals as a necessary component to democracy, I propose three types of justifications: reinterpretation of Islam; compliance with international human rights norms; and building upon changes wrought in Palestinian society by the intifada.

1. Islamic Reinterpretation

This subpart of the article discusses whether and how can sharia be adopted for to enhance constitutional arguments in favor of women's equality. The modern dilemma is that many Muslims have a strong commitment to sharia. Many people may resist proposed reforms because these reforms challenge centuries of male political, economic, and social dominance and patriarchy. On the other hand, secularization, external cultural influences, and international human rights conventions, have transformed the minds of many women and men to accept less inequality between the sexes. They grapple with how to bring the balance down on the side of equality in the face of proponents of more conservative interpretations of sharia.

As early as the nineteenth century, Muslim feminists, liberals and leftists called for sharia reform, especially in the area of personal status. Today, there is a dialectical relationship between religion and government in which Islamic doctrines, and clerics espousing conservative reform, are impacting governments and legal systems, but in which the governments are also increasingly able to exert reforms and control over many aspects of Islamic law and religion. With the exception of Saudi Arabia, nations have revised these laws in a piecemeal fashion. In a few places, the modifications have been quite extensive examples of leading law reform. Due to both fundamentalist pressures and an increasing realization of and respect for the influence of religion in Muslim society, many current reformers feel the need to ground their demands for change not in calls for secular modernism, but in a re-examination of the sharia principles and other sources of law. This could be viewed as attempts to characterize legal change as mere tinkering, rather than the leading reform most likely to inspire organized opposition. The reformers believe that Islam cannot be abandoned to the sole province of traditionalists. They want to show that the rights of women are consonant with Islamic law, rather than merely alien western notions. They know that they must use imaginative techniques that maintain and enhance the legitimacy of Islam and still provide for improvement in the status and rights of women.

Some reformers are thus involved in reappraising the theological justifications for restrictions on women's rights, and have found these justifications are "patriarchal attitudes and cultural traditions disguised as religious norms." But they realize that facile adoption of western feminist notions that would constitute clear examples of leading and alien law reform is not appropriate. Instead they are attempting to theorize methodologies based upon the historical and cultural realities of Muslim women that could be interpreted as tinkering or following reform.

Counterbalancing this push to liberalize, fundamentalists and other traditionalists have been calling for strict interpretation of Islamic principles, rejecting new reform and repealing pre-existing reforms. There has been arise in Islamic fundamentalism throughout the Islamic world, including among the Palestinians, for several reasons. First, there has been disenchantment with western and socialist ideologies that stress individualism and modernism as the way to solve problems. These "solutions" are viewed as alien intrusions, as well as neo-colonial, or imperialist. Second, secular Arab nationalism, as espoused by leaders such as the late Egyptian president Gamal Abdel Nasser, failed to solve economic and political problems. Third, there is the continued importance of the oil rich regimes that stress Islamic as opposed to nationalistic solutions. These regimes can fund Islamic groups in various countries. Fourth, there is the pride in a system of indigenous law which might be considered representing the genius of the Islamic community. Fifth, there is the belief that the sharia is the will of God, which must be obeyed.

Fundamentalists reject the secular reforms of the twentieth century as "heretical innovations inspired by western examples that lead to decadence, immorality and the destruction of the family." The reformers have often thus been attacked as western lackeys and agents of western cultural imperialism. The fundamentalists want women to wear veils or head scarves and long dresses, and attend all female schools. They want to exclude women from public functions, repeal any reforms in the area of marriage and divorce, and restrict female education to suitable subjects such as religion, nursing, teacher training, home economics, and gynecology. One of the problems confronting any progressive reform attempt is the restrictive views of individual qadis who may constitute latent opposition to change. For example, it was not until 1964, eight years after the Tunisian Personal Status Law was adopted that prohibited polygamy, that the courts were prepared to declare a polygamous marriage invalid. They refused to implement leading law reform. In many countries, the ideological battle continues today between the forces for liberal reform and the fundamentalists.

Palestinian decisionmakers interested in justifying the equalization in the status of women can examine the reinterpretations of sharia that have been adopted by various countries. For example, Tunisia found an Islamic justification for abolishing polygamy. Under the Koran it is stated that men must treat each wife equally. Since it is actually physically impossible to treat separate unique individuals in an identical fashion, polygamy cannot be rationalized. Palestinian leaders would have to deal, however, with the traditionalist response that polygamy would not be permitted in the Koran at all, if it were impossible to effect in an appropriate manner. A potential rejoinder is that the prophet Muhammad was not generally in favor of polygamy, and therefore meant it to be extremely difficult to undertake.

In another example of leading law reform, Tunisia also abolished the talaq, the unilateral divorce by the husband without judicial intervention. The Islamic justification given was that several Koranic verses stress the undesirability of divorce and the need to seek arbitration whenever there is spousal discord. Since a husband's desire to pronounce talaq was certainly evidence of marital discord, Tunisian jurists reasoned that judicial intervention was always required. Therefore, Palestinian framers could adopt similar reasoning and justify banning talaq.

In addition to examining the experience of various countries in reinterpreting the sharia, Palestinians can also peruse the writings of the relatively few scholars that advocate more rights for women. For example, the conservative Egyptian thinker Muhammad al-Ghazali believes the oppression of women is not based on Islam but on misinterpretation of sharia. While he does not reject the inequality of the sexes in the Koran, he does not find it problematic if women occupy political positions. Since he is a conservative, al-Ghazali's views may be acceptable to a broader spectrum of the Arab public, conservatives as well as progressives. It would be useful for Palestinian leadership to cite to conservative thinkers who hold progressive views in certain subjects, in order to increase support for reform in traditional quarters.

Professor Abdullahi An-Na'im of Sudan offers a reinterpretation of qawama, the male guardianship provision. The Koranic verse presents qawama as based upon two conditions: male physical superiority and financial support of women. Physical strength however, is not relevant in the modern era where the rule of law governs over brute force. Also, in the present more women are able to work outside the home and become economically independent of men. Thus since neither of the two historical conditions is necessarily applicable today, the concept of qawama could be revised. Professor An-Na'im also thinks that reform efforts can be justified today given that there are aspects of the sharia that have been modified and generally accepted. For example, Muslim scholars quoted from the Koran throughout the Middle Ages to justify slavery. No one would justify it today. Thus, Palestinian framers could use the reasoning of Professor An-Na'im to modify qawama as well as other concepts.

Another possibility for Palestinian decisionmakers is to engage in reinterpretive justifications of their own devise. In March 1993, I traveled to Egypt, Israel and the Occupied Territories and held discussions with various Palestinian lawyers, academics, and activists, both male and female. They indicated that Palestinian Islamic scholars have either not addressed reinterpretive issues regarding women's rights at all, or that they have not done so in public fora or journals. Informants indicated that this failure to address these issues may be due to: the conservative and powerful influence of traditionalists like Hamas, who are dominating the public fora, and calling for restricting women's rights; and the crushing nature of the ongoing occupation which does not afford these scholars the luxury of theorizing about the future.

The existence of other sources of Islamic law in addition to the Koran would aid Palestinians in their reform efforts. For example, the sunna are the words and deeds of the founder of Islam, the Prophet Muhammad, his closest companions and the first generation of believers. The sunna are collected in reports written in the ninth century known as the ahadith. The process of interpretation by the four jurisprudential schools of the Koran and ahadith is known as ijtihad. The third source of law is the ijma, which represents the consensus of the Islamic scholars of that era in each school. Qiyas, the fourth source of law, are the interpretive method which uses analogy. The door to new interpretation technically closed around the ninth century, leading to devastating consequences for family law, which has remained unchanged for nearly one thousand years. Palestinian reformers could thus claim a modern right to ijtihad and qiyas to establish enlightened ijma. Therefore, revisions to personal status and inheritance rules could be justified on this basis, such as the polygamy and qawama reforms discussed previously. Other potential revisions would include using ijtihad to justify the raising of the age of consent for marriage, which is not specifically stated in the Koran. Thus for example, the Palestinians could raise the female's age of consent from fifteen to eighteen, which would insure that more girls would finish high school, be more employable, and have later births. All these attempts could be formulated as mere tinkering, permissible under Islamic law.

One of the theoretical problems with this approach is that ijtihad cannot be used if the Koran or sunna plainly speak on the issue. Thus traditionalists could claim that the Koran definitely permits a man to have four wives, and therefore ijtihad cannot be used to limit this right. A possible response to the traditionalist argument would necessitate adopting the approach of Tunisia in interpreting the polygamyprovision.

The fact that custom came to be part of Islamic law can also help Palestinian reform efforts because "the inclusion of modern social standards or customs can be viewed as consistent with the manner in which law had been formulated to meet particular social needs in the past." Using the qawama example again, an argument could be made that modern custom does not sanction either a physical or social need for all women to be under the control of the physically stronger sex. Thus, it would be consistent with how custom and religion have been intertwined to conclude that Islamic practice no longer requires the implementation of customs such as qawama that have outlived their relevance for the Palestinian community.

In conclusion, reinterpretation of Islam holds some promise for Palestinian decisionmakers interested in constitutionally justifying the equality of women. Muslim nations and scholars both provide some examples for consideration. Any push for change, however, will be countered by fundamentalists and traditionalists, who will resist progressive interpretations as examples of inappropriate leading law reform that do not reflect the social consensus of the community. In spite of such opposition, proposed reforms could either be justified solely through non-codified interpretations as suggested above, or they could be justified based upon implementation of human rights norms as discussed in the next part.

2. Adoption of International Human Rights Norms

This subpart discusses the possibilities for justifying gender equality based upon the adoption of international human rights norms. The Palestinians could engage in leading law reform by adopting wholesale revision of various laws on the basis of international human rights conventions (huquq al-insan) norms. This could be done by an independent state of Palestine signing the relevant agreements and undertaking methods to make either the treaties self-executing or to pass domestic legislation to execute them. Even if there is no independent state capable of signing treaties, an interim government with rule-making authority, could enact the substance of these norms under the Basic Law and other domestic laws.

Professor Louis Henkin notes however, that the strongest challenge to the universality of the application of human rights has been culturally based resistance. In the Middle East this resistance comes from the traditionalists and fundamentalists. While there are those who support the full endorsement of international human rights standards, there are many who find these principles antithetical to Islam. Likewise, there have been regimes like Iran that have wholeheartedly embraced Islamization. On the other hand, there have been other regimes like those led by Saddam Hussein in Iraq and Hafez al-Assad in Syria, that have successfully crushed opposition groups calling for Islamization. Some scholars have postulated that the adoption of some form of Islamization is a "strategy adopted by beleaguered elites in an attempt to trump growing Muslim demands for democratization and human rights."

There are also arguments by cultural relativists that international human rights are western in nature, and not suitable for those in the developing world. The cultural imperialism argument can be countered by noting that cannibalism and slavery were once hallowed traditions in certain cultures, and no one attempts to justifying them today. Despite opposition from cultural relativists, Professor Abdullah An-Na'im of Sudan states that the Muslim world must undertake the struggle to reconcile Islam with modern human rights standards.

This section now examines selected aspects of the twenty-two international documents related to the status of women in order to highlight potentially suitable provisions for implementation in Palestine. The Islamic nations have devised some mechanisms. In September 1968, the Arab League established the Permanent Arab Regional Commission on Human Rights, which is supposed to advise the League on the means by which states could protect human rights. It has yet to generate an Arab Convention on Human Rights, and has done more in the realm of promoting rather than protecting human rights. There is, however, a draft Charter on Human and Peoples Rights in the Arab World, which is a product of the Islamic Conference, to which all Muslim countries belong. The Charter does endorse human rights as compatible with Islam.

The major protections of rights, however, are to be found in: the United Nations Charter; the Universal Declaration of Human Rights; the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention); the International Covenant on Civil and Political Rights (ICCPR); and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Preamble of the United Nations Charter reaffirms "the equal rights of men and women." Among the purposes of the United Nations is "promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, and religion." Article 13 of the U.N. Charter directs the General Assembly to "initiate studies and make recommendations for the purpose of . . . assisting in the realization of human rights and fundamental freedoms for all without distinction as to . . . sex." The Universal Declaration elaborates on the Charter. It is not a treaty, nor does it seek to enforce legal obligations, but rather delineates "a common standard of achievement for all peoples and all nations," rather than enforceable legal obligations. The Preamble of the Universal Declaration recognizes "the equal and inalienable rights of all members of the human family" and reaffirms "faith . . . in the equal rights of men and women." Despite its lack of treaty status, the Declaration has over time acquired a status greater than anticipated, and domestic courts have utilized it as a way to determine compliance with the United Nations Charter.

The ICESCR asserts a right to sexual equality. The state parties "undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights." Women are "guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work." It includes a provision that marriage must be entered into with the free consent of the intending spouses. The ICCPR also has provisions forbidding discrimination on the basis of sex and ensuring the "equal right of men and women to the enjoyment of all civil and political rights." It also guarantees to all citizens, without distinction on the basis of sex, the right to take part in public affairs, to vote and be elected, and to have access to public services. Another section requires parties to "insure equality of rights and responsibilities of spouses as to marriage, during marriage and at dissolution." Among the Middle East countries ratifying ICCPR and ICESCR are Afghanistan, Egypt, pre-1979 Iran, Jordan, Libya, Morocco, Syria and Tunisia, and Algeria is a signatory intending to ratify. Some authorities would say that these norms have become a part of customary international law and therefore bind states regardless of whether they are signatories.

The Women's Convention contains the most extensive provisions. Yemen, Egypt, Iraq, Libya, and Tunisia were among the 103 countries ratifying it as of February 1991. Article One of the Women's Convention defines discrimination as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.

This document is critically important because it covers the private sphere where a large amount of discrimination takes place, i.e. the "areas in whicthe majority of the world's women live out their days." The Convention contains fifteen articles detailing the fields where states must take "appropriate measures," including: education; health care; nationality; cultural; familial and personal; legal and political activities; employment; recreation; and mortgages and other forms of credit. Affirmative action is permitted, but "shall be discontinued when the objectives of equality of opportunity and treatment have been achieved." Palestinian decisionmakers should consider adoption of some of these provisions, including those affecting the private sphere.

One of the major problems with all these international documents is that although a majority of nations have ratified the various covenants protecting the rights of women, inequality nevertheless persists. With respect to the Women's Convention in particular, a major impediment to equality is that many signatories have made reservations to the text; at least 23 of 100 states making 88 substantive reservations. The conflicts between the status of women under religion and custom, and their status under the Convention seem to be the major cause of so many reservations. Some of these reservations, in essence, gut the Convention. For example, Egypt ratified the Convention, but made a substantive reservation "concerning the equality of men and women in all matters relating to marriage and the family," thus purporting to ratify "without prejudice to the Islamic Sharia's provisions."

Palestinians must examine the experience that the rest of the world has had with the Convention. Following the Egyptian approach turns the document into an exercise in mere tinkering, since the major areas of discrimination in the private spheres would be left untouched. On the other hand, the acceptance of just such a reservation on religious grounds might increase support from traditionalist sectors.

Professor Theodor Meron has observed serious problems with the Women's Convention's intrusion into the private sphere, particularly infringement of religion. Although he recognizes that much of women's oppression is located in the private spheres, he is opposed to regulation as a solution, since it "might require invasive state action to determine compliance, including inquiry into political and religious beliefs." He recommends the modification of cultural and social patterns through education and government incentives, rather than state encroachment into the private sphere. Meron attempts to reconcile the Women's Convention with the Declaration on Religion and finds that he cannot. Therefore, he believes that both women's rights and religious freedom will suffer. "The attainment of the goal of equality of women may therefore require encroachment upon religious freedom."

Palestinians should balance the interference with religious norms

against the realization of equality, and come down on the side of equality, a self professed goal of the national movement. They can adopt Professor Meron's recommendations for changing social and cultural patterns through education and government incentives, coupled with tinkering, following and leading law reform of the kind envisioned by the international human rights agreements.

Professor An-Na'im, however cautions that legal reform must not move too rapidly. "It is irresponsible and inhumane to encourage these women to move too fast, too soon and to repudiate many of the established norms of their culture or religious law, without due regard to the full implications of such action." While one can always argue that the moral force of international agreements signed by a majority of the world is powerful, the reality is that "without a translation of the rhetoric of human rights into enforceable legal rules the individual is in a very weak position in respect of a very powerful state." At one extreme, women may find themselves confronted by a backlash from traditionalist forces that causes them personal danger, in the form of harassment or stoning as "loose women." This actually happened in the Palestinian hijab campaign described below. Alternatively, women may find progressive rights are not backed up by government enforcement, thereby negating whatever substantive value provision of the rights was supposed to achieve.

In selecting which internationally recognized rights to adopt, Palestinians must use care in evaluating proposed rights schemes. Because of the increasing international acceptance of human rights norms, opponents of such norms use sophisticated rationales often cloaked in the language of human rights.

The patterns of diluted rights in Islamic human rights schemes should not be ascribed to peculiar features of Islam or Islamic culture but should be seen as part of a broader phenomenon of attempts by beneficiaries of undemocratic and hierarchial systems to legitimize their opposition to human rights by appeals to supposedly distinctive cultural traditions.

As an example of a nuanced attempt by opponents of implementation of international norms, consider the following. The Universal Declaration of Human Rights states, "Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and found a family." The 1981 Universal Islamic Declaration of Human Rights, which was prepared under the auspices of the private organization known as the Muslim World League, which represents the interests of conservative Muslims, contains a similiar provision. "Every person is entitled to marry, to found a family, and to bring up children in conformity with his religion, tradition and culture." The language concerning conformity with religion actually means that sharia still governs for a Muslim. Sharia restricts Muslim women from marrying non-Muslim men. Thus, the unlimited restriction of the Universal Declaration has been subtly limited by using language that may appear innocuous to the unknowledgable, but maintains the discriminatory strictures of Islamic law.

Professor Mayer also notes that the English and Arabic versions of this document vary considerably, with the English version attempting to approximate western notions of human rights in some cases, that are not carried over at all in the Arabic version. Thus, Palestinians and various scholars need to consult bilingual versions of proposed reforms in great detail, to be sure that English versions written for western audiences are not providing greater rights, than the Arabic versions prepared for domestic constituencies that include traditionalist elements. If documents are printed in both languages, there must be a clause asserting the validity of both versions.

It is also important to note that some alleged proponents of reform, who actually oppose change, may write extensively about the equality of all Muslims. But a careful reading of their proposals indicates that they are not referring to equality between men and women. Professor Mayer analogizes this to the western notion of not considering equality as inclusive of children's rights. For example, young people do not have the right to vote or marry. She goes further and provides the example of the American founding fathers of the Constitution whose notion of political and social equality did not include women, blacks, or Indians. The broad sweeping leading law reform that the U.S. Constitution represented was seen st the time as having no relevance to the status of these particular groups. Thus, it is critical for Palestinian leaders to differentiate between proposals calling for true equality between the sexes and those that are merely calling for equal treatment of all men among themselves and equal treatment of all women among themselves. They should not enact leading law reforms that are intended to have no applicability to half the population, while appearing to be facially valid for everyone.

Another problem facing the Palestinians in the adoption of international human rights norms is that of enforcement. There are several institutions to enforce the international conventions, inclthe Commission on Human Rights, the Human Rights Committee, the Commission on the Status of Women, and the Committee on the Elimination of Discrimination Against Women (CEDAW). The Commission on the Status of Women, established in 1946 by the UN Economic and Social Council has a mandate to prepare reports for ECOSOC on promoting women's rights. The Optional Protocol to the ICCPR empowers the Human Rights Committee to act on individual complaints. None of these institutions has properly handled enforcement of women's rights.

The Women's Convention enforcement mechanisms are unusually insubstantial, even for human rights agreements, which are notorious for their weak enforcement. A twenty-three person committee meets for not more than two weeks annually to review reports submitted by parties. These parties must submit their first report within one year after the Convention enters into force for them, and then every four years thereafter. There are several major failings with this procedure. First, two weeks is totally insufficient, and the committee is so backlogged with reports that a member has estimated that it would take until the year 2000 just to hear the reports submitted as of 1986. No other human rights treaty organ is subjected to such a constraint. Second, the Committee has no authority to do anything other than hear reports. It can not hear individual complaints. The Committee can not even pronounce a party in violation, but instead relies on the public reporting system and on the ability of parties negotiating their disputes. Finally, the Committee is isolated geographically since the Commission on Human Rights meets in Geneva, not Vienna.

Thus, Palestinian decisionmakers can not rely on the international enforcement mechanisms if they adopt the various human rights agreements. They must take care to have domestic enforcement mechanisms that will be accountable to the new government's policies. A court that holds the new rights invalid, as was the case in Egypt, is ineffective. Reliance on Islamic qadis or sharia courts that also feel the reforms are anti-Islamic, will not work either. Instead, executive branch officials who are politically appointed by the new decision makers could create new administrative institutions to enforce the implementation of rights. This could be backed by stiff penalties and prison time indicating the serious nature of the offenses. An Ombud office could be established to investigate government failures to enforce rights and hear individual human rights complaints. Appointment of additional secular or religious judges could help ensure that the pre-existing institutions are more amenable to implementing new government policy as well. This could be coupled with national educational campaigns in the schools, workplaces, and other parts of civil society to gain additional support and societal change. The ultimate aim would be for the leading law reforms of today to come to be regarded as following reforms that were ultimately only in need of tinkering.

If the leading law reform approach of constitutionally enshrining women's equality is considered too progressive at this time, then various alterations could be proposed to amend the Jordanian Personal Status Code. These options consist of tinkering or following law reform because the fundamental patriarchal structure of the law based on religion and custom would be retained. In other Muslim countries, codes have brought changes in several areas. Some nations, for example, have introduced legislation establishing minimum ages for the capacity to marry. States have also restricted or banned the husband's right to be polygamous. Restrictions have also been placed on the husband's right to unilaterally terminate the marriage. Mothers have been granted longer custody of children. Inheritance codes have been amended as well.

Egypt provides an interesting case study of the dynamics of tinkering law reform in the area of women's rights. The Egyptian Family Law Amendments of 1979 were passed by a Presidential decree of Anwar Sadat. These laws gave women some additional rights such as: requiring the husband to register his divorce and notify his wife; increasing alimony; increasing the mother's custody period of minor children; requiring the husband to provide housing for his ex-wife and children; permitting the wife to obtain a divorce if court mediation failed to reconcile the couple; obtaining an automatic divorce if the husband took a second wife; and permitting wives to work without spousal permission. The Amendments came under attack by fundamentalists who derisively called them (Mrs.) Jihan's (Sadat) laws. The implication was that the First Lady of Egypt was stepping beyond her proper customary role to influence her husband and the Parliament to make unsuitable revisions to the law. Under great pressure from traditionalists, the Constitutional Court overturned these amendments on procedural grounds in 1985. The Parliament subsequently passed a nearly identical law, with one major exception. The wife no longer received an automatic divorce after a spouse's second marriage, but had to get a court decision. Given the conservative nature of the judiciary, it therefore became likely that the judiciary might rule against a woman seeking such a divorce. Thus the law retained its fundamentally polygamous nature.

The example of Algeria is instructive as well, although the outcome has not been resolved. The 1984 Personal Status Law embodied sharia principles that relegate women to an inferior status. The law conflicts with the current 1989 Constitution, which includes provisions for equality before the law without discrimination on the basis of gender; a commitment to ensure equality in rights and duties among all citizens; and a guarantee of fundamental liberties and human rights. It has yet to be determined if the new Constitution will empower women to challenge the 1984 law on constitutional grounds, or whether the 1984 law will in practice be treated as inviolable.

The Palestinians could similarly reform the Jordanian Personal Status law. For example, the minimum age for marriage could be raised to eighteen as discussed above. The unrestricted talaq power to unilaterally terminate the marriage could be limited by requiring court mediation, registration, or other intervention. Qawama and mahr could both be modified as well. As in the Egyptian case, alimony could be increased and the wife could be given the right to work outside the home without spousal permission. Since many Palestinian women must work outside the home for economic reasons, amending this provision may be seen as following law reform. The wife's custody of the children could also be extended past puberty.

Attempting to provide the right of automatic divorce if the husband takes a second wife, might meet the same resistance in the Occupied Territories as it did in Egypt. An alternate approach would be to make the current ability of women to make stipulations in the marriage contract more widely known through educating young women about this option. On the other hand, it is difficult to generalize about societal reaction based upon the experience of other countries. The Palestinian rate of polygamy may be sufficiently lower than in Egypt, therefore evoking less societal reaction. In the alternative, even if the rate is low, Palestinian culture may see polygamy as such a fundamental custom and religious right, that attempts to further restrict it would be resisted vigorously.

3. Intifada

This subpart discusses a third major way that constitutional reform equalizing women's status can be justified - by building upon societal changes introduced by the intifada. Changes wrought by the intifada must be put into the context of the women's movement's historical fight for reform. This movement has been aimed primarily at obtaining political rights along with men, and only secondarily at obtaining specific women's rights.

The political involvement of Palestinian women began after World War I durthe British Mandate, whose first goal was to create a Jewish homeland in Palestine. The Palestine national movement developed in protest. The focus of the upper class Palestinian women's efforts, like those of the movement in general, was to end the occupation. In addition to charitable projects to assist the poor, the members of women's groups also occasionally marched in demonstrations. After the first women's conference in 1929, a delegation of women went to the British governor's house and said, "To serve our homeland we shall take off our veil!" This indicated a desire to break with religious and customary norms in order to comply with nationalist needs. The Arab Women's Committee was subsequently formed consisting primarily of upper class women and students. There were also women who participated as messengers and fighters during the 1936 revolt against the British. After the founding of the State of Israel in 1948 resulted in the dislocation of thousands, turning them into refugees, women expanded their involvement through charitable organizations. After the forming of the Palestine Liberation Organizationin 1964, one of the mass organizations formed was the General Union of Palestinian Women.

Since the beginning of the Occupation in 1967:

the national question [has been] a major factor which both supports the movement for women's liberation and simultaneously limits its further development. It supports liberation by calling on women to move beyond the household realm and to face the occupation (side by side) with men. But it deters further development by emptying it of its feminist and class content and limiting it to the confines of the national liberation struggle.

The various Palestinian political factions formed women's political groups with the same programs as the charitable organizations. These groups established day care, training programs, and literacy projects. The groups avoided many gender issues either because they truly believed such issues were not a priority, or because they were afraid to sow seeds of disunity in the movement. In 1978 college educated women activists established the Women's Work Committee in Ramallah. This group attracted and sought out professional, clerical, and factory workers for the first time. Other groups split off based on factional alliances with one of the four political parties affiliated with the PLO: Fatah, DFLP, PFLP, or the Communist Party.

Custom and religion have been greatly influenced by the intifada. For example, Palestinian legal actors have traditionally been highly respected men of senior stature who have served as religious or customary law mediators, qadis, and lawyers (muhamein). The numbers and types of legal actors have expanded during the intifada. The Underground Leadership of the Uprising (UNLU), popular justice committees, and private individuals now mediate such issues as spousal quarrels and regulate mahr reductions. They do so based upon the legitimacy they have gained for the roles they have played during the intifada, rather than through customary or religious status. Of course there are individuals such as Faisal Husseini who have enjoyed great respect both before and during the intifada. He continues to hear disputes as well.

Women's participation in the intifada has been "comprehensive, direct and active." They were encouraged by the underground UNLU to become involved in executive functions of the newly formed popular committees, especially those functions relating to their traditional role as "sustainers," such as medical relief, food distribution, and fund raising. Women collected donations, ran blood banks, passed out leaflets, watched for soldiers and looked after families of the dead, arrested and wounded. They have been arrested, killed, and wounded as well. In addition, women became the core of the home economy movement to develop Palestinian self-sufficiency and boycott Israeli goods. Women also organized and operated income-generating projects outside their homes. Among the efforts to mobilize women have been a December 1990 conference by the Bisan Center in Jerusalem entitled "The Intifada and Some Women's Social Issues." It was attended by nearly 500 women who discussed such critical issues as the hijab campaign, marital age reduction, and comparative family law.

Representatives of the women's committees actively intervene in domestic disputes if a woman requests it. Their interventions have met with mixed success. These are all instances where an enhanced awareness about the perceived inegalitarian treatment of women has led to a delegitimation of the traditional approaches under custom and sharia.

According to Professor Joost Hiltermann, women have not been able to take prominent roles in the leadership of the uprising. This is partially due to a combination of customary norms and community values restricting leadership to males, and the growing influence of Islamic fundamentalism in the Territories. It is also due to women's major responsibilities as de facto heads of large households in which several male family members may be in prison, in hiding, injured, dead, or deported. Although the UNLU may have included women at various times, an analysis of the communiques and the pattern of arrests and deportations suggests the leadership is generally male.

The most striking international evidence of women's participation in the intifada was the PLO's selection of Professor Hanan Mikhail Ashrawi, Birzeit University Dean of the Faculty of Arts, as the principal spokesperson for the Palestinians during the peace negotiations that started in 1991. While her western-educated, urbane demeanor has won admiration in many circles, there are vociferous critics at home that feel these very characteristics and her minority Christian status make her an inappropriate representative of the Palestinian masses. The fundamentalist group Hamas has called her a "loose woman." This is consistent with fundamentalist philosophy that regards women's public participation as anathema to Islamic principles. Thus, the significance of her selection as a female should not be overstated. It is aberrational at this point in time.

Professor Philippa Strum provides an example in the women's rights area that illustrates the relationship between a pre-intifada institution that has retained some legitimacy in this area, the sharia court, and the intifada institutions. When a husband in the Aqbet Jabr refugee camp refused to permit his wife to find a new job or to participate in the women's groups, she consulted a committee concerning her desire to leave him. The committee encouraged her, and when her spouse threatened to take the children the committee told her to go to the sharia court to obtain custody. Knowing she would not go to the Israeli police for enforcement, he said he would ignore a court order. The committee assured her that local popular committees would enforce the court's decisions. Women's committees have also started to give lectures about personal status and divorce law. Various ad hoc groups of women have also been attempting to draft a family status law to replace the traditional laws that govern divorce, inheritance, and other matters. Two of the main women's groups have demanded a progressive family status code. The three socialist women's committees (excluding Fatah) have made the abolition of the sharia courts and the institution of civil marriage part of their nominal agenda. Since Fatah may be representative of the vast majority of Palestinians, its failure to endorse these reforms may be ominous. It may signal a willingness to adhere to customary and religious norms for the sake of national development at the expense of women's rights.

Women's groups have also tried to regulate or eliminate the mahr. Since many men have been unable to work in a consistent fashion during the intifada, they have been unable to raise the large sums customarily required. Breaking with tradition, some committees have encouraged some couples to refuse to permit the male to pay mahr on grounds that payment for women is a burdensome custom that is not compatible with the goals of the intifada in improving the status of women. Individual women and couples have refused as well, or lowered the amount paid. One Gazan lawyer indicated that he and his wife agreed that he would only pay 5,000 U.S. dollars, instead of the $10,000 that would have been required for someone of her high educational status before the intifada. It should be noted that even before the intifada, there were communities where the mahr had been almost abandoned. This occurred in some areas near refugee camps where the family did not have the capital. It also occurred where work was available for both sexes, so women did not need the protection of large marriage gifts.

In December 1989, the four women's organizations affiliated with Fatah (the Women's Committee for Social Work), the DFLP (the Palestine Federation of Women's Action Committees), the PFLP (the Palestine Federation of Women's Committees), and the CP (the Association of the Palestine Working Women's Committees) formed the Higher Women's Council. These groups "perceive themselves to be fully equal participants in the national movement, not mere adjuncts to the male leaders and combatants." The aim of the Council is to strike a balance between the national liberation struggle and women's social struggle. Thus, there remains an incredible tension between the need to assert a feminist agenda and the need to support a nationalist agenda pushing for independence. While some approach the subordination of women from a feminist perspective, others link women's oppression to the "collective weaknesses that impede liberation." There are some women, like Palestinian negotiating team member Zahira Kamal, an activist formerly aligned with the DFLP and now prominent in the Democratic Union, FIDA, who do not adopt the word feminism, but say, "When we are talking about feminism, it is the right of women to work and to get an education." The feminist discourse might alienate many male and female traditionalists who would view it as western cultural imperialism. But they can relate to the very concrete need to obtain an education in order to obtain a job, whether male or female. There are also many women who do not want to suffer the fate of the Algerian women who were restricted again to the private sphere after the Algerian struggle for independence in the 1950's. After the grueling liberation struggle, custom and religious norms reasserted themselves as an affirmance of Algerian culture and patriarchy.

In addition to the factional groups and charitable societies, there are a number of women's resource centers that have formed in Ramallah, Nablus, and Gaza. Their purpose is to disseminate materials and educate women from different backgrounds about their legal rights, in order to prepare them to participate in a future Palestinian entity. Suha Hindiyeh, director of the Women's Resource Centre, has stated:

We have to start thinking of laying the basis for a strong women's movement. That's why we're planning to . . . attempt to put forth women's legislation in every aspect - family law, women workers, and many other issues related to women - drafting these legislations and discussing them with the other Women's Committees, with the Palestinian women's movement as a whole, so as to present it to our government when it comes.

The intifada has not been successful in eradicating customary and religious norms about a woman's role in society. After the initial upsurge in political activity described above, women's position had basically stagnated or reversed. An important illustration of this retrenchment was the hijab campaign launched by Hamas in 1989 which resulted in the imposition of head scarves on all women in Gaza. The traditionalists portrayed wearing of the hijab as a sign of political commitment to the intifada, cultural struggle, and national heritage. This is consistent with the use of custom and religion as a bolstering force against the cultural and psychological ravages of occupation. Women who refused to wear the scarf were subjected to graffiti attacks and verbal attacks as well. Some men threw stones at these women. This is ironic given that the stone had come to symbolize the Palestinian struggle against the Israelis. In effect, use of stones against such women was saying that they were the enemy, not a Palestinian. There is a potential double meaning to the stoning as well since stoning is a traditional Islamic punishment used against "loose" people who may be adulterers or fornicators. These women were thus being regarded as "vain, frivolous, or anti-nationalist."

The situation reached a crescendo when traditionalists threatened two activist women who had only recently donned the hijab, telling them that their heads were not completely covered. When one woman attempted to protect herself by claiming possession of a knife, and began to unzip her bag, the men retaliated. The group shouted that the women were collaborators and had a tape recorder in the bag. This is the ultimate insult to a Palestinian nationalist, and invokes the most serious consequences for the accused. Numerous alleged collaborators have been killed by their fellow Palestinians on frequently unsubstantiated grounds. Thus declaration of a potential collaborator by the crowd could have easily resulted in the death of the women. The crowd chased the women and grabbed the bag, but found no recorder. They subsequently dispersed.

An intifada justice committee tried the three men who had instigated the incident and sentenced them to pay a fine of 3000 JD ($4500) to the women and their families. The next UNLU communique (bayan) condemned "attacks by radical groups on Palestinian women in Jerusalem, Hebron and Gaza." An appendix attached to the communique elaborated on the role of women in the intifada:

Woman as we perceive her, besides being a mother, daughter, sister or wife, is an effective human being and full citizen with all rights and responsibilities . . .

We specify the following points:

1) We are against excessive vanity in personal dress and use of cosmetics during these times. This is applied to the same degree for men and women.

2) We believe that any dispute outside the purview of the occupation and its various offices should be resolved and settled in a democratic way with any suggestions offered in the course of normal constructive discussion or advice.

3) We should value highly the role women have played in our society during these times in achieving our national goals and confronting the occupation and they should not be punished without cause.

4) The phenomenon of harassing women contradicts the traditions and norms of our society as well as our accepted attitudes about women. At the same time it denigrates the patriotism and humanity of each female citizen.

5) Nobody has the right to accost women and girls in the street on the basis of their dress or the absence of a headscarf.

6) The Unified National Leadership will chase these hooligans and will stop such immature and unpatriotic actions, especially when it is found that many such hooligans consistently engage in their own suspicious activities.

This appendix provides a snapshot of the intertwining of custom, religion, and rights during the intifada. The preamble clearly establishes that women are entitled to the full array of human rights. It does not limit itself to the public arena as did the Palestinian Declaration of Independence. While the hijab is not required to be worn under sec. 6, modest dress that comports with custom and religion is still implied by sec. 1. Sec. 4 clearly states that harassment of women does not comport with Palestinian legal and social norms. What it does not state is that social custom does permit harassment, whistling, and ogling of women who are not modest in dress. Thus one counter interpretation of the appendix is that it does implicitly authorize harassment of women who are excessively vain in dress.

Patriotic graffiti appeared soon after, proclaiming "[t]hose caught throwing stones [at women] will be treated as collaborators." In a demonstration of the legitimacy and penetrative ability of UNLU rules, the atmosphere changed dramatically in a few days "and women without headscarves no longer felt so threatened. Few men dared tell a woman to cover her head, and those who did could be accused of considering themselves greater than the unified leadership."

Nevertheless, it has proven impossible to eradicate traditionalist tendencies. Despite the warning by the UNLU to permit women flexibility in their dress or face sanctions, no action was taken to enforce the provisions in the appendix of bayan no. 43. Thus, in February 1990, fundamentalists felt unconstrained to renew the hijab campaign, and attempted to impose the jilbaab (full length dress) as well. Hamas activists have continued to patrol the Gaza streets looking for inappropriately attired women and dousing them with vegetable dye as punishment. In March 1993, informants told me that women had been attacked with acid. Many secular women told me that they dared not leave the house without the headscarf. One elite woman refuses to leave her family compound because she did not want to wear the hijab. The only women I saw without scarves were Christian. In addition to the Gazans, women in parts of the West Bank feared being attacked with stones and pelted with fruit as well. The UNLU and other nationalists have been clearly unable or perhaps unwilling to counter the growing fundamentalist tendency. Feminists have tried to justify the inability of the UNLU to defeat the fundamentalist forces by stressing the ongoing theme of not wanting to create internal differences while fighting the occupation. Once again, however, it is the rights of women which are sacrificed to accomodate nationalist aims, including the continued existence of restrictive customary and religious norms.

The UNLU and justice committee's handling of the hijab campaign, using both customs and new norms espousing women's equality to resolve a societal problem, has both positive and negative implications for women's status. On the beneficial side, the UNLU defined attacks on women as a political and social crime. On the detrimental side, "the sulha only feeds into traditional conceptions of women by [involving] the women's families and treating the issue as a question of honor and the women not as political individuals but as family property."

In addition to the handling of the hijab, UNLU communiques indicate support for the continuance of patriarchy. Participants in the intifada are usually "our sons," "brother doctors," "brother workers," or "brother businessmen and grocers." When bayanat mention women, it is usually as among the people "who are suffering," or as "mothers," rather than as women in their own right. Some communiques exclude women altogether, despite the ongoing activity of the women's committees.

A few bayanat depart from this marginalizing pattern. For example Communiqué No. 5 called on "mothers, sisters, and daughters to work side by side with their husbands, sons, and brothers." In August 1988, the UNLU reminded women's committees that they had to "shoulder a special responsibility in organizing sit-ins and other appropriate activities" in solidarity with male and female prisoners. Furthermore, the UNLU has consistently recognized International Women's Day. Each year of the uprising the emphasis on this day has increased. In 1988, the UNLU merely called for demonstrations on March 8 as part of its weekly schedule. The following year the UNLU expanded its references to "salute the Palestinian woman" and to declare its "admiration for her heroism in the national struggle." The UNLU also urged "strengthening the unity of the women's movement in the State of Palestine within the framework of the Unified Women's Council."

PLO leadership outside of the Occupied Territories has also issued documents that can be interpreted as restrictive of women's rights. As previously discussed, the Palestinian Declaration of Independence states that "[g]overnance will be based on principles of social justice, equality, and nondiscrimination in public rights on grounds of race, religion, color or sex." The problem here appears to be that the call for equality is limited to the public sphere, maintaining the dichotomy between private and public realms that the Women's Convention seeks to destroy. Thus change in personal status matters most impacted by religion and custom is apparently not contemplated.

The Declaration later "render[s] special tribute to the brave Palestinian woman, guardian of sustenance and life, keeper of our people's perennial flame." Professor Hiltermann interprets the Declaration to mean that "the only roles assigned to women in the new state are to protect, preserve, and procreate." A preferable interpretation might be that women are free to participate in public life and obtain the public, civil and political rights in addition to, but not instead of their traditional roles.

Women activists continue to express concern about how to solidify and expand the few gains in women's status that have been achieved during the intifada, so as to prevent the Algerian experience from being replicated in the Occupied Territories. Many women want to be active participants in developing legislation and a constitution, which will promote equality. It is unclear whether any women are members of the High Legal Commission, but is Chair, Dr. Al-Qasem did meet with women's groups on his visit to Palestine to discuss the draft Basic Law.

Additionally, Professor Hanan Ashrawi has said that "there is an urgent and concentrated need to crystallize a feminist perspective and ideology." Yet female Palestinian academics expressed great frustration to me concerning their inability to get scholarly, financial, or emotional support from their male colleagues when attempting to write on feminist issues. The political outlook is somewhat unclear. Heightened economic and political problems in the future make it less likely that concerned women's rights supporters will be able to vigorously pursue a separate feminist agenda.

The stagnation and decline in women's participation in the intifada is further evidence of fundamentalism's increasing power. Reinforcement of the family unit and the role of maternity has occurred to the detriment of female political organization. It appears that there are increased pressures on women to assume a more traditional lifestyle. The number of early marriages is increasing, and the average age of marriage has dropped from 21 to 17. There have also been both incessant attacks on coeducation and calls for gender segregation.

The women's movement continues to have the "inability to bring a balance between the national conflict needs on the one hand, and needs of women stemming from their class oppression and their oppression as women by a patriarchal system of social organization on the other." With respect to the future role of Palestinian women, President Yasser Arafat has stated they will not suffer the fate of the Algerian women because Palestinian women have a higher rate of education which enables them to obtain professional positions. He noted that there were 37 female members in the 301 member Palestine National Council, a percentage that compares favorably to developed nations. "I would say that in the new state female representation in parliament and official jobs will (be comparable) to the most advanced nations in the world." While admirable in the Middle Eastern context, this statement does not address the private/public dichotomy in the Declaration of Independence. While some Palestinian women may certainly want to participate in the public spheres, some will certainly also be concerned with the private sphere where they spend the majority of their lives.

In conclusion, it appears that while social change has taken place in the nature of customary and religious norms in the women's rights area during the intifada, there has been retrenchment due to fundamentalist pressures as well. There is the need to determine the full scope of legal extension and penetration of the changes that have occurred in order to evaluate the nature of future modifications needed. Legal extension is the social reach of the law, how society defines and differentiates what is legal from what is non-legal, i.e. that which is left to custom, tradition, religion, informal negotiation, social convention, peer and familial influence. Legal penetration is the social grasp of the law, the degree to which the system actually penetrates and controls social life. Often what the legal system proposes to effect and what it actually does may be entirely different. As an example, the United States legally prohibits: prostitution; drug use; smoking and drinking by minors; and not wearing seatbelts. Yet all these activities exist and flourish to varying degrees depending on the law's penetrative ability. An evaluation of the situation in the Palestinian community is especially complicated, since much of the legal decisionmaking is based on customary and religious law that involve informal negotiation and settlement. These are elements that other societies might consider outside the legal system altogether. The potential extension of the legal decisionmaking is limited by the existence of: the military occupation which criminalizes participation in any aspect of the intifada; imposed legal traditions and court systems; and Palestinian inability at this juncture to totally control the prior two limitations. Due to the denial of freedom of the press by the Israelis, need for secrecy, and difficulty in conducting research, it is impossible to know how far the new process actually penetrates into the society. I would speculate that it penetrates to a far greater extent than the Israelis or even the Palestinians may realize. The very fact that compliance was high in the pre-Gulf war period, may provide some indication of penetration at that time. On the other hand, it is possible that the compliance with the new rules was and is very sporadic, due to its embryonic nature and inability to publicly evolve and flourish. Thus, its penetrative ability may be quite limited at present.