The Future of Women’s Rights in Tunisia
On January 14th Tunisians will mark the third anniversary of the “Jasmine Revolution.” Three years ago, three weeks of popular protests sparked by the self-immolation of a Tunisian street vendor culminated in the ouster of former Tunisian President Zine El-Abedine Ben Ali and triggered a series of events that would come to be known as the “Arab Spring.”
Also on that day, political parties hope to announce the ratification of Tunisia’s new constitution, the most recent draft of which has been widely lauded as a victory for gender equality. But, one of its key accomplishments — the establishment of a Constitutional Court — has been overlooked notwithstanding gender implications.
Notably, the constitution depicts Islam as the country’s official religion and provides for equality between men and women. For instance, Article 5 describes both sexes as enjoying equal rights and status under the law, while Article 7 expresses support for women’s rights and achievements.
Further, Article 37 guarantees equal opportunity, presumably in education, employment and political participation, and calls for the elimination of violence against women. The draft constitution also speaks of women as equal to men in its preamble as well.
Interestingly, the final draft also establishes an independent Constitutional Court — the first in Tunisian history — on which twelve (12) judges will serve. The panel will determine the constitutionality of laws and lower courts’ rulings. While not immediately apparent, this development carries significance in the gender rights context as well — still, it has gone unnoticed in popular discourse.
From divorce and child custody cases to education and employment matters, the Constitutional Court is positioned to wield considerable influence in the lives of Tunisian women and girls. Its decisions will give meaning to the above gender provisions, and this fact underscores the significance of having a diverse judiciary representative of the country’s population as a whole.
More to the point, it speaks to the importance of female judges who may offer a perspective unique from their male counterparts.
To be sure, Tunisia has long been heralded as a leader on women’s empowerment in the Middle East and North Africa. For instance, it reformed its family laws in the 1950s, prohibiting polygamy, permitting family planning and requiring that both girls and boys attend school beginning at age six.
In 1968, Tunisia saw its first female judge ascend to the bench. Later, its laws were reformed to allow citizenship and nationality to pass through a mother (married to a non-Tunisian) to her children. More recently, in 2013, the government instituted the country’s first domestic violence hotline while opening women’s shelters for abuse victims.
In fact, late last year, Tunisia was ranked sixth out of 22 Arab states in an expert poll conducted by the Thomson Reuters Foundation about women’s rights. But, in comparison to other countries around the world, it ranked 102 out of the 128 nations surveyed.
Indeed, the road to women’s empowerment is a long one.
For example, Tunisian women continue to be underrepresented in political and public life, including key decision-making posts like judgeships. Presently, women comprise just 27 percent of the entire judiciary.
As the UN Development Program (UNDP) observed in its 2005 Human Development Report on Arab States, the ”business of writing the law, applying the law and interpreting the law in the Arab world is governed above all by a male-oriented culture.”
Generally, a number of arguments are leveraged to dissuade women from entering into the judiciary. Sometimes religious reasons are used even though the Quran and Hadith, Islam’s primary textual sources, do not explicitly bar women from serving on the bench. Other arguments are grounded in false assumptions about women’s nature as inherently emotional and incapable of making objective decisions.
Physiological differences between men and women are also cited to support the contention that judicial administration is not a proper role for women to fulfill. Some (men and women) actually believe that women are intellectually inferior given their gender and thus, ill suited for the bench.
Still others make a protectionist argument, maintaining that women’s exclusion from the judiciary guards their reputation and dignity from bad men (rather than challenging the bad behavior of those men).
It is interesting to note that a number of these flawed arguments were once made in the American context prior to female ascension to the bench. Indeed, this serves as an apt reminder that patriarchy transcends physical, cultural and religious boundaries.
In the Tunisian context, there are no formal barriers to women’s entry into the judiciary. The currently low number of female judges may be attributed to both external and internal challenges.
With regard to the latter, gender rights advocates should continue to empower women and girls with the confidence and tools to succeed in a judicial career. Indeed, some women and girls may first have to grapple with their own understanding of proper female roles vis-à-vis the political, social and economic sphere.
To overcome discrimination — the external challenge — the Tunisian government should consider employing formal quota systems.
Ultimately, both women and men must understand the value of successful professional women including female judges.
According to a number of research studies, for instance, there is a positive correlative relationship between female empowerment and peaceful, prosperous societies.
Regarding women judges specifically, their presence enhances perceptions of impartiality and equality by making the judiciary more reflective of society’s diversity. That diversity translates into a potentially wider, more representative spectrum of official opinions on legal issues, including those that touch the lives of women and girls.
As Tunisia continues its democratic transition, its leaders should remain mindful of these considerations. And, to make sure that the ideals and values enshrined in the final draft of the constitution are realized each of the men and women selected for Tunisia’s Constitutional Court should be committed to gender equality irrespective of their gender.
Engy Abdelkader is a Legal Fellow with the Institute for Social Policy and Understanding.
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This article was published on the Huffington Post on January 9, 2014. Read it here.