Research and Training Collectives on Lebanon Development-action
In collaboration with
New Women Foundation
Cairo, 18-19 September 2013
Workshop on
Towards Integration of Economic and Social Rights of Women in
The Constitutional Reform Process in Egypt
…………………………………………………………………………………………
Presenting leading Models of the world Constitutions
Abd Allah Khalil
Cassation Lawyer
International Law Expert for Human Rights
Introduction
This paper proceeds from the firm base that human rights are interdependent and indivisible, and women's dignity and rights are persistent and cannot be divided into two areas, to the area of civil and political rights on one hand, and economic, social and cultural rights on the other, as they should enjoy freedom from want and fear, where the ultimate goal of ensuring respect for the individual's dignity cannot be realized without the enjoyment of all their rights.
Therefore the related texts about the prohibition of discrimination, gender equality stated in the two International Covenants on civil, political, economic, social and cultural rights with the close link between them were reviewed taking into account that the principles of prohibition of discrimination and equality before the law are actually the rights of citizenship of any human rights deserved by women. Which are rights that enable the individual as a human being, whether man or woman, to live with dignity and are guaranteed by the State and all its institutions that entail a positive obligation to ensure economic and social rights, justice distributive of wealth, and equal job opportunities to women on equal terms with men, and imposes negative obligation on the State to refrain from any practices that hinder the enjoyment of civil and political rights or its diminish. However, the need is a requirement but is not necessarily – even if it was project – the commitment by the State to ensure it because the human rights are linked with the "existence" and the needs are linked with the "possession".
Headings and sub-headings are used to indicate the main and subsidiary ideas, to clarify the reference of constitutional models, and in text analysis into elements to facilitate linking it with the constitutional language to avoid prolongation and display many examples of relevant constitutional provisions.
Entrance
The Researcher stated in this entrance several important things in integrating the inalienable women's rights in the constitution:
First: The Skill of converting the inalienable rights to constitutional and legislative sentences
Note: The Law and the Constitution are tolls for social change.
So
What is the inalienable right that you want to be proved, committed or ensured?
What are the behavior patterns that you want the constitution to change or block it?
Second: The legislative sentence basics:
Who: Actor
What: Action / verb (Who will do what)
The Actor should be eligible to act.
The Use of Active voice instead of Passive voice
Identifying the Actor (The State- People- Judicial Authority… etc)
Deletion of the Actor from the legislative sentence to hide the real Actor
First Sector
Prohibition of Discrimination, Access to Justice, and Fairness Right
Article 2 of the International Covenant on Civil and Political Rights:
A- Paragraph 1: Concept of Prohibition of Discrimination
Paragragh1: Each State party undertakes respect to the rights recognized in the presented Covenant and to ensure these rights to all individuals within its territory and subject to its jurisdiction, without any discrimination as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other reasons.
(Article 2) of the International Covenant on economic, social, and cultural rights
1- The State parties ensure the practice of the stated rights of the presented agreement without any type of discrimination because of race, color, sex, language, religion, political opinion or other, national or social origin, property, birth status, or any other reason.
The developing countries, with sufficient consideration of human rights and their national economy, could decide on extend to ensure the economic rights, recognized in the present Convention with regard to the non-citizens.
Samples of World Constitutions
Formulation of the Prohibition of Discrimination determines (the Actor) and (the verb)
South Africa Constitution 1996:
Article 9:
Equality:
1- All shall be equal before the law and everyone has the right to equal protection and benefit of the law.
2- The State may not discriminate unfair directly or indirectly against anyone because of race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth or a combination of these reasons.
3- No person shall discriminate directly or indirectly against another person for one or more reasons stated in paragraph (3). National laws must be issued to prevent or prohibit unfair discrimination.
4- Discrimination for one reason or more which are stated in paragraph (3) considered as unfair till the opposite is proved.
B- Legislative and Non-legislative Measures to Prohibit Discrimination of All the Recognized Rights:
Article 2, Paragraph 2 of the International Covenant on Civil and Political Rights:
Each State party in the present assures - if it's applied legislative measures or non-legislative does not guarantee the rights recognized in the present Covenant- adoption in accordance with constitutional procedures and provisions of this present Covenant, as may be necessary for this work from the legislative or non-legislative measures.
Samples of World Constitution
Punishment for Discrimination
Constitution of Brazil:
Article 7, paragraph 42: The law should punish any discrimination which would prejudice, or threatens fundamental rights and freedoms.
Constitution of Ecuador:
The Law punishes any discrimination and the state should take positive procedures to promote the effective equality of rights for marginalized or vulnerable groups.
•Direct Application of Human Rights:
Constitution of Ecuador:
Article 11:
3- The rights and guarantees stated in the Constitution and the international conventions concerning human rights which can be applicable immediately upon request of any officer whether public official, or administrative, or judicial.
Article 426:
All persons, bodies and institutions are under the constitution as well as judges, administrators, public officials are bound by direct constitutional and obligations contained in the international human rights conventions if they were better than those provided in the Constitution. Besides that any group or parties cannot claim that there is no law or explicitly not stating or ignoring the Constitution or the international human rights agreements on any of the rights of immediate non-compliance and the enforcement of rights or as an introduction to self-defense to justify violations of the rights and guarantees enshrined in the Constitution or to refuse its work, or to deny its recognition of such rights, also, the Prohibition of any discriminatory behavior or any practices that obstruct or compromised the enjoyment of the rights.
Constitution of Bolivia:
Article 14:
First: The State admits a legal personality and capacity for everyone in accordance with the laws and the enjoyment of the recognized rights in the constitution without discrimination.
Second: the State punishes and prohibits all forms of discrimination based on sex, color, age, sexual orientation, sexual identity, origin, culture, nationality, citizenship, language, religion, political or philosophical ideology, marital status, economic or social status, level of education, disability, pregnancy, or any other forms of discrimination aims at or involves, or impairing the recognition, enjoyment or exercise, admitting the principle of equal rights for all people.
Third: The state ensures to all individuals and institutions without discrimination the actual free practice of the stated rights in the constitution, laws, and international human rights conventions.
Fourth: The exercise of rights required the Constitution and laws commitment, and may not be forced to relinquish what is prohibited.
C- Access to Justice as well as Legal and Judicial Assistance to the Poor and Access to Courts:
Article 2, Paragraph 3 (International Covenant on Civil and Political rights)
Each State party is committed to in this covenant:
A- To ensure the availability of an effective remedy system for any person whose recognized rights or freedoms have been violated in the present covenant even if, the violation has been committed by persons in their official capacity.
B- -To ensure to any person claiming such a remedy, shall have his right determined by judicial, or administrative or legislative authorities, or by any other competent authority provided by the legal system of the State, and to develop the possibilities of the judicial remedy.
Samples of World Constitutions
Constitution of Venezuela:
Article 26:
Paragraph 2: The State guarantees the fairness for free, accessible, impartial, efficient, transparent, independent, free, responsible, equitable, unimpeded, (), and without useless formalities or delays.
Constitution of Italy:
Article 24:
Paragraph 1 :Any person can raise a case before the Court in order to protect his rights under the civil and administrative law. On the other hand, defense is an inviolable right at every stage and degree of the legal procedures where the poor have the right to obtain a suitable means to take an action or to defend themselves before the courts.
D- Right of redress
Article 2 Paragraph 3 (International Covenant on Civil and political rights)
C- The competent authorities ensure the enforcement of the verdicts in the interest of complainants.
Models of world constitutions
The Constitution of India:
Article 32:
Redress ways to save the provided rights granted under this section:
1- The Supreme Court has the power to issue directions of judicial orders, including orders like bring habeas corpus, or note, or prohibition , or inquiry and suspense orders, or order confirmation as required to enforce any of the rights granted under this section.
2-Without prejudice to the Supreme Court powers under paragraphs (1) and (2), Parliament may be entitled by law to any other court authority where within its local limits of jurisdiction, all authorities exercised by the Supreme Court under paragraph (2), or to exercise any of those powers.
3- The right guaranteed is not attached under this article except as provided in this Constitution to the contrary.
The Constitution of Japan:
Article 16:
Every person has the right to seek peacefully redress of inflected damage and the dismissal of the responsible public officials, procedural legislate or regulations, or cancellation or amendment, and other affairs. Discrimination should not occur against any person by any way, if a petition like this was adopted.
Compensation for victims of human rights violations
The Constitution of Venezuela:
Article 30:
The State is obliged to a full compensation for victims of human rights as they deserve or from their rights including payment forbreakdowns and damages.
The State adopts legal procedures and other procedures for the payment of compensation prescribed in this article. The State protects the victims of general crimes and seek for repair the damage that caused by the culprits.
Second Sector
The Correlation of the principle of equality between men and women, and the principle of the prohibition of discrimination, and the principle of equality before the law
Article 3 of the International Covenant on Civil and political rights:
The states parties in this convention ensure the right of equality between men and women in the enjoyment of all the civil and political rights set forth in the present Covenant.
(Article 3) of the International Covenant on economic, social and cultural rights:
States parties in the Convention to ensure the equal rights of men and women in the enjoyment of all economic, social and cultural rights enshrined in the Convention.
Article 26 of the International Covenant on Civil and political rights
First paragraph: the equality before the law and having equal law protection and states that:
All individuals are the same before the law and are entitled -without any discrimination- to the equal protection of the law
Paragraph 2: ensure effective protection from discrimination and states that:
In this respect, the law prohibit any discrimination and guarantee to all equal and effective protection against discrimination on the basis of race, color, sex, language, religion, political or any other opinion, national or social origin, property, birth or other any other basis.
Models of world constitutions
The Federal Constitution of Germany:
Article 3:
1- Men and women have equal rights. The State encourages the application of equality between women andmen seeking to remove any unfairness exist in this field.
2- No discrimination or causing any damage to anyone including the disable persons, on the basis of his gender, race, language, homeland and origin, his faith, religious or political opinion.
The Constitution of Brazil:
Article 5: All individuals are equal before the law, without distinction of any kind. Brazilians and foreigners residing in the country enjoy the same guarantees of inviolability of the right to life, freedom, equality, and property security, under the following conditions:
1-men and women are equal in rights and duties in accordance with the provisions of this Constitution.
The Constitution of Turkey:
Equality before the law (as amended on May 22, 2004)
Article 10 (as amended on February 9, 2008)
All individuals are equal without any discrimination before the law, regardless of language, race, color, sex, political opinion, philosophical and religion belief, or any other considerations.
Men and women shall have equal rights and the State has an obligation to ensure equality in practice.
No privilege is granted to any individual, family, group or class. Beside, state agencies and administrative authority operate according to the principle of equality before the law in all its practices.
The Constitution of Canada:
Article 28:
Although to what had mentioned in this Constitution, the rights and freedoms that set out in it are guaranteed equally to male and female.
Third Sector
Effective protection of the prohibition of discrimination
A-A speedy trial of the perpetrators of violence and hate:
Constitution of Ecuador:
Article 81:
The law provides special and urgent measures for the prosecution and punishment of crimes of sexual violence perpetrators, hate crimes and those committed against children, adolescents, youth, older persons, the disabled and first Categories for care and protection. Assigned prosecutors, defenders, human rights advocates and specialists for these reasons, in accordance with the law
-This is based on the right to the legal certainty to respect the constitution and the existence of clear legal rules, and its implement by the public authorities.
B- The State is obliged to investigate the crimes committed by its system against human rights and sentence a legal punishment.
The Constitution of Venezuela:
Article 29:
The punishment procedures against humanity, serious assaults on human rights and war crimes do not become obsolete. Attacks on human rights and crimes against humanity investigated and governed by the ordinary courts and are excluded from the benefit of tolerance, including forgiveness and amnesty.
B-Constitutional institutions in support of the principle of equality and prohibition of discrimination (Committee of gender equality).
The Constitution of South Africa:
Article 175- 187, functions of the Committee of gender equality
1- Committee of gender equality promotesrespect to this equality, protection and development of gender.
2- Under the national legislation, the committee of gender equality hasthe necessarypowers for the performance of its functions, including powers of observation, investigation, research, outreach, and pressure.
Forth: The Right of Women to Hold Public Office
The Constitution of South Africa
Article 174: Appointment of judicial officers
1-Any suitable and qualified person, man or woman, may be appointed as judicial officer. The constitutional court employer of should be from South Africa.
2- Take into account that, the judicial authority should reflects the extensive assortment of race and gender in South Africa during the appointment of judicial officers. Advice and reporting on gender equality issues.
3- The committee of gender equality has additional powers and functions stated in the national legislation.
Fifth: Positive and Temporary Discrimination Measures Calais to Achieve Effective equality
The Constitution of South Africa
Article 9:
2- Equality includes the full enjoyment of equal rights and freedoms and to promote the achievement of equality, legislative and other measures should be taken for the protection of marginalized individuals or particular groups, because of the unfair discrimination against them and their own advancement.
The Constitution of Canada:
Section (2): section (1) does not prevent any law, program or activity aimed at improving the situation of the affected individuals or groups, including those affected by race, ethnic origin, color, sex, age or mental or physical disability. (It was referred back in Section 1, in the subject of the prohibition of discrimination).
The Constitution of India:
Article 15:The prohibition of discrimination and positive discrimination:
1- The State shall not discriminate against any citizen on the basis of religion, race, caste, sex, place of birth, or any of those only.
2- Any citizen should not display to, on the basis of religion, race, caste, sex, place of birth, or any of those only, any hindrance, liability, restriction or condition with regard to the following:
a- Entranceof the stores, restaurants, hotels and places of public entertainment
b-The Using of wells, baths, roads and places of public resort funded wholly or partly by the state's funds or dedicated to the public use.
Positive discrimination
3- Anything stated in this article are not preclude without the State to monitor any special provision for women and children.
4-None of the stated in this article or in paragraph (2) of article 29 prevents the state from a special appropriation for the progress of any social and educational backward classes of citizens or for scheduled castes and tribes.