INTRODUCTION

Must feminists support entrenchment of sex equality? Although an affirmative response might appear self-evident, recent events in the Canadian province of Quebec might give feminists pause. The issue was not whether the province should entrench its first sex equality provision; the Quebec Charter of Human Rights and Freedoms (“Quebec Charter”) prohibited sex discrimination from its inception in 1975. Tensions arose among Quebec feminists over the proposal to add a second sex equality provision to the Quebec Charter. They did not articulate their tensions in terms of competing visions of sex equality: discrimination versus equality. Instead, the dominant theme was conflicting constitutional rights: sex equality versus religious freedom. Accordingly, an analysis of Quebec's experience may be instructive for feminists who are interested in issues of constitutional design in other jurisdictions.

In what follows I describe the constitutional setting, the origins of the proposed amendment to the Quebec Charter, and the tensions it exposed among feminists in Quebec. Although they disagreed over the all-or-nothing question of whether to entrench the second sex equality provision, I approach the issue of constitutional design from a different perspective, namely that sex equality provisions serve multiple functions. I argue that Ayelet Shachar's theory of joint governance illuminates the identity of feminists who are not served by Quebec's proposal, because they require a sex equality provision that protects intersectionality. After reviewing how such a provision might be designed, I suggest nevertheless that this second function could be performed by Quebec's amendment.

INTRODUCTION

As this chapter went to print, the Gaza Strip and West Bank Palestinian Territories were under the authority of two different Palestinian governments. Gaza was under the control of the Islamist group, Harakat al-Muqawama al-Islamiya (Hamas or the Islamic Resistance Movement), which unexpectedly won the majority of seats for the Palestinian Legislative Council (PLC) in January 2006. The West Bank was under the control of the Palestinian Authority (PA) under the leadership of President Mahmoud Abbas, head of the mainstream Fatah party. President Abbas appointed an alternative cabinet and received support from the international community in 2007, after brutal internecine fighting between the two parties led to a Hamas takeover of Gaza in June. Palestinian political conflict and ongoing problems in the peace process with Israel have prevented any focus by either Hamas or Fatah on the internal legal regime. At some point, the situation may improve and the dream of an independent state of Palestine may become an imminent reality. If so, Palestinians may return to a constitutive process that has been at a standstill for many years. Hopefully, women will be demarginalized and play a greater role than they did in the past. This chapter provides some potential guidance for those unknown founding mothers of the new Palestinian state, assuming that some of them, regardless of their political affiliation, will have a special interest in the plight of women.

INTRODUCTION

In 2006, the Constitutional Court of Colombia declared unconstitutional a statute criminalizing abortion under all circumstances. The Court ruled that abortion should be legally permitted when:

1. the continuation of pregnancy presents a risk to the life or physical or mental health of the woman;

2. there are serious malformations that make the fetus nonviable; or

3. the pregnancy is the result of a criminal act of rape, incest, unwanted artificial insemination or unwanted implantation of a fertilized ovum.

The Court held that banning abortion to protect fetal interests in these cases would violate women's fundamental rights, because criminalization under such circumstances places a disproportionate burden on women's exercise of human rights protected by the 1991 Colombian Constitution and by international human rights law.

This paper analyzes how the Court protected the rights of pregnant women in the abortion context by incorporating regional and international human rights law within its judicial review of the abortion legislation, giving constitutional status to human rights treaties ratified by Colombia. It also describes the reasoning of the Court regarding the status of the unborn under Colombian and international law, the way the Court balanced the constitutionally required protection of the unborn with the rights of women, and the borrowings the Court made of comparative law and jurisprudence. It explains how the Court enriched the meaning of the dignity of women by interpreting constitutional provisions in light of international human rights sources with a feminist perspective, and laid a foundation for protecting the reproductive rights of women in countries that are parties to the treaties on which the Court relies.

INTRODUCTION

Constitutions and laws have recently been recognized by feminists as an important site through which decision making, influence, and power are organized and exercised. Given that laws contribute to the shaping of gender attitudes and values, laws could also be used as an instrument by which to create change. One example of constitution making in terms of gender is the adoption of electoral gender quotas. During the past ten years, an increasing number of states have enacted statutes to promote the number of women in public decision making. Today, forty-eight countries have introduced special measures in the form of legislative quotas stipulated in their constitution and/or electoral laws. In addition to these legal reforms, in more than fifty other countries at least one political party represented in parliament has adopted voluntary party quotas stipulated in its party statutes. This recent and rapid diffusion of gender quotas has been labeled a “fast track” to equal representation.

Legislative quotas have often been introduced at times when new constitutions were being written and structures of government were being rebuilt or as part of broader constitutional reforms. These situations have opened windows of opportunity for quota proponents to place questions of gender representation on the political agenda. The women's movement's long advocacy of and lobbying activities for more women in elected positions have also found more resonance, because international reputation is becoming increasingly important for political elites.

Burma currently suffers under one of the worst governments in the world. Over the course of the past year, the world has watched in horror as the military dictators ordered the army to shoot down peaceful demonstrators, including monks, in the streets of Rangoon. People around the world struggled to get word from inside Burma when the military government tried to close down all communications and rounded up the demonstrators in nighttime raids. And, the world stood aghast while this military junta refused desperately needed aid for its people when they were devastated by a cyclone.

The people of Burma have been living under repressive military rule for almost fifty years, but they have never accepted this fate. They have struggled for their freedom, both with arms and with words, and they continue to do so. The democracy movement has come to realize that peace for Burma will require a constitutional arrangement that can guarantee freedom and equality to all of Burma's people. The women of Burma have been active in all aspects of the democracy movement, including the turn to constitutionalism, and have worked to assure that the constitutional settlement will include meaningful guarantees of women's equality. This chapter describes the history of constitutionalism in Burma and women's role in that history. It then turns to the current constitutional processes, both within the military government and in the democracy movement. Next, the chapter briefly explains the sources of women's inequality in Burma and the barriers to women's empowerment.

INTRODUCTION

Women have suffered a wide range of discriminatory practices and abuses that have given rise to the global concern about the gross inequality and inequity existing between the genders. Gender inequality is indeed a global phenomenon, and the need to address this inequality has become urgent and compelling. Women all over the world have been deprived in one way or another of their rights to education, reproductive health, property, employment, economic opportunities, and most importantly, their rights to participate in the making of laws that directly affect them. These inequalities have subjected women to the whims of the male gender and have resulted in a huge disparity between the genders with respect to illiteracy and poverty. It has been reported that an estimated 60 to 80 percent of teenage girls in Liberia sell their bodies to fund their educations. Women's impoverishment and lack of education, in turn, contribute to their lower status in terms of health, property and economic development, employment, and politics. Thus, a circle is formed in which inequality breeds more inequality.

Gender inequality is not, however, limited to inequalities between the male and female genders. Intra-gender inequalities are also very significant issues that exacerbate the inequality of women by leaving some women in a particularly disadvantaged position. Laws sometimes draw distinctions between different groups of women, as was evident in the Liberian laws that classified and categorized women in Liberia into two groups, “civilized,” referring to urban and/or statutorily married women, and “native,” referring to rural and/or customarily married women.

INTRODUCTION

If asked what should be done to constitutionalize gender equality, most people are likely to propose a constitutional provision for gender equality. Undoubtedly, there would be variations in the form suggested for this provision. It might be expressed “negatively;” that is, as a prohibition on laws that discriminate with respect to “sex” and/or “gender.” Or, it might be positive, asserting the right of women and men to equality. It might be broad and generalized, prohibiting arbitrary or unreasonable discrimination across a range of classifications, or alternatively, more closely tailored, with specific reference to women.

Some people might want to qualify a simple prohibition on laws that discriminate with respect to gender, to include other related bases for discrimination: sexuality, marital status, and pregnancy, among others. Still others, anxious about the prospect that formal equality provisions may be drawn on by the courts to invalidate laws or programs for substantive equality, will seek to add a provision quarantining affirmative action from the prohibition on gender discriminatory laws. However, whether or not with qualifications, it is reasonable to assume that most people would begin with a constitutional equality rights provision, and some would also end with it.

Feminists should question this approach. Before relying on a constitutional rights provision for achieving equality, or campaigning to amend a constitution to incorporate such a provision, they should proceed with eyes wide open. They should understand the “downside” of constitutional rights strategies.

When I arrived in Germany a few years ago to look more closely at the application of the German abortion laws, I did so with a feminist chip on my shoulder. I was convinced that the application of the laws was disrespectful of women's dignity and autonomy, in ways that should be equally troubling to supporters and opponents of abortion rights. I was also, as a constitutional lawyer, convinced that the compromise the German legislature and Constitutional Court had reached after the reunification of East and West Germany was hopelessly incoherent and rife with contradictions, such that it made no logical sense from any jurisprudential perspective. What I heard from the Germans I talked to gave me pause, however. No matter what their ideology or level of engagement with abortion questions, all sorts of people, from government officials, scholars, and activists to ordinary citizens, old friends, and relatives, had the same reaction when I told them of my project. “Abortion?” they said. “Why are you looking into abortion? That used to be an interesting question. It's not interesting anymore.”

This put my project in a whole new light. When it comes to abortion, the United States throughout my lifetime has been a victim of the proverbial Chinese curse, “May you live in interesting times.” If the Germans, who through much of the twentieth century debated abortion questions as fiercely as the Americans did, had found a way to lift the curse, perhaps there was something to be said in favor of the German approach.

Constitutionalism is sweeping the world. Since 1990, at least 110 countries around the globe have been engaged in writing new constitutions or major revisions of old ones. In many of these countries, issues of gender equality have been a central concern in the constitutional process. Women have been active participants in these constitutional projects, and they have worked for the inclusion of a broad range of constitutional provisions and mechanisms to promote gender equality. One might expect that this phenomenon of worldwide constitution drafting would have generated a rich literature concerning gender-equality issues in comparative constitutional law, but, in fact, it has not. As the editors of one of the very few books on the subject put it, “there is a huge gap – a gender gap – in contemporary comparative constitutional analysis.”

The lack of attention to these issues in the literature became painfully clear to me in 2003, when I began to work with women's groups from Burma and Liberia on constitutional reform addressing gender-equality issues. For the past several years, I have been working with constitutional drafting teams in the Burmese democracy movement to write state and federal constitutions that will, hopefully, one day soon, provide the legal frameworks for a free and democratic Burma. As part of this work, I have acted as an advisor to the Women's League of Burma (WLB) – an umbrella organization for many of the women's groups in the democracy movement – helping them draft constitutional provisions addressing most of the issues in this book, write position papers, and design advocacy campaigns in support of these provisions.

As Katharine Bartlett has written, being a legal feminist entails “asking the ‘woman question’” in law. This essay asks the “woman question” about constitutions and constitutional law, largely with the purpose of generating areas for future research. I focus neither on particular subject areas nor on doctrinal issues, but rather on three areas of constitutional theory: the idea of constitutions as entrenched law under difficult-to-amend provisions, the allocation of jurisdiction in and among different levels and branches of government, and the idea of interpretive theory in constitutional law.

First, I want to acknowledge the wide range of subjects in and around constitutions that are amenable to analysis through the lens of gender. Women in many parts of the world now participate in constitution making – the title of a recent collection of essays, Women Making Constitutions, would have been almost inconceivable a century ago. As Vivien Hart notes, greater emphasis on participation in constitution making has in many countries offered opportunities for women to place their mark on and in constitutions. Many questions are embraced in this topic: How have women organized to participate? What have women sought to include in their constitutions? What have women disagreed about? What are the relationships among women's participation in constitution making, the constitutional texts that emerge, and the changed conditions for women in the years thereafter? How much do women participate as office holders, judges, and in other government positions under these constitutions?

The present chapter will consider the EEIG (European Economic Interest Grouping) and the SE (European Company). The EEIG is partly governed by Community law, i.e. Council Regulation (EEC) No. 2137/85; and this will also be true of the SE. After these two entities have been considered, the European Cooperative Society is dealt with in outline. The consideration of this proposal will be followed by a brief treatment of the proposal for a European private company, which does not emanate from the Commission, but which may from the basis of or influence further Community legislation.

European Economic Interest Grouping

History and scope

The Regulation on the European Economic Interest Grouping (EEIG) was inspired by a French entity called the groupement d'intérêt économique, which was introduced in France in 1967, and which is regarded as an intermediate form between the société (company or partnership) and the association (club). The Regulation provides a somewhat original framework for natural persons, companies and firms within the meaning of Article 48(2) EC and other entities governed by public or private law to enable them to cooperate effectively when carrying on business activities across national frontiers. An EEIG must have at least two members from different Member States. The registered office of a corporate member must be in a Member State. Furthermore, either the central administration or the principal activity, of at least two of the members must be within such a state.