1 1Professor of Law, University of Iowa, College of Law. A.B.. Princeton University, 1978; M.A., University of California—Los Angeles, 1979; J.D., Stanford University Law School, 1982. Many thanks to my research assistant Sylke Merchán. Also thanks to Professor John Quigley and South African Ministers Dullah Omar and Kader Asmal for reviewing earlier drafts of this article.
I For a more detailed discussion of the South African constitutional process by this author, see Wing, Communitarinnism vs. lndividualism: Constitutionalism in Namibia and South Africn. 11 Wisc. Int'l L.J. 295 (1993) [hereinafter Wing, Comtunitarianism]. I have drawn from this prior work for the current article. 2 For discussion of these connections, see, e.g.. Adams, Israeli nnd South Africn: The Unnnturnl Alliance (1984), and Hunter, lsrael's Foreign Policy: South Africa and Central America (1987). Needless to say, many supporters of Israel deeply resented any comparisons to the apartheid regime. 3 See, e.g., Amnesty International, "Israel and the Occupied Territories," Amnesty Int 7 Ann. Rep. I993; "Human Rights," U.S. Dept. of State Bull.. March 1989; Falk & Weston, The Relevance of lnternn- tionnl Lam to Pnlestininn Rights in the West Bnnk and Ca;a: ln Legnl Defen.se of the lntifada, 32 Harv. Int'l L.J. 129 (1991). 4 For a more detailed discussion of Palestinian constitutionalism by this author, see Wing, Derrrocrncy, Constitutionalism and the Future State of Palestine, published by the Palestinian Academic Society for the Study of International Affairs (Jerusalem, 1994).
5 Villa-Vicencio, Whither South Africa? Constitutionalism and Law-Making, 40 Emory L.J. 140, 144 (1991). The Roman Dutch law is a hybrid of Roman law and the Germanic custom in use in Holland in the seventeenth and eighteenth centuries. Dutch immigrants brought it with them to South Africa at that time. 6 M. at 144. The South African legal system is a "disease that grew and developed from what was effective government in Britain, given to the hard-won affirmation of individual rights, into a monster that eventually devoured justice itself when transplanted into colonial South Africa. In brief, the monster has two limbs: the unrestrained supremacy of Parliament and the constitutional denial of democracy, both of which resulted in an all-powerful racist rule." M. at 145. 7 See Thompson, A Historv of South Africa 187-220 (1990) (discussing the apartheid era). 8 The Afrikaners are the descendants of Dutch immigrants who came to the Cape of Good Hope in 1652, fleeing religious persecution. They comprise 40 percent of the whites, with the British making up the remainder. While the Afrikaners have controlled the political process since 1948, the British control most of the country's economic resources. For more discussion of the Afrikaners, see Thompson, The Political Mythology of Apar-theid (1985); Lacour-Gayet, A History of South Africa ( 1970); Boxer, The Dutch Seaborne Empire: 1600-1800 (1965); Berat, Constitutionalism and Mineral Law in the Struggle for a New South Africa: The South African War Revisited, 15 Suff. Trans. L.J. 61 (1991); Gil iomee, The Last Trek? Afrikaners in the Transition to Democracy, 22 S. Afr. Int'l 111 (1992). 9 Apartheid has been described as "a complex set of practices of domination and subjugation, intensely hierarchized and sustained by the whole apparatus of the state which affects the distribution of all values." McDougal, Lasswell & Chen, Human Rights and World Public Order 523 ( 1980). The roots of apartheid can be found in the National Socialist policies of Nazi Germany and the fascist policies of Mussolini's Italy. See generally Bunting, The Rise of the South African Reich 54-68 (1986) (discussing the influence of the Nazis on members of the Nationalist Party and the Afrikaner leadership, many of whom sided with the Nazis against the Allies in World War II). The architect of South African apartheid was former Prime Minister Hendrik Frensch Verwoerd, who coined the phrase "separate development." Hepple, t�rn'o� ) 114 ( 1967). The Population Registration Act of 1950 classified everyone as either white, coloured, Indian, or black. Population Registration Act No. 30 of 1950, 3 Stat. Republic S. Afr. Census and Statistics, at 71 (1973). Coloureds were people of mixed African-Afrikaner ancestry. Interrracial sex and marriage were outlawed under the Immorality Act and the Prohibition of Mixed Marriages Act. Immorality Act, No. 23 of 1957, 7 Stat. Republic S. Afr. Criminal Law and Procedure, at 611 ( 1973); Prohibition of Mixed Marriages Act, No. 55 of 1949, 11 Stat. Republic S. Afr., Husband and Wife, at 91 (1973). The Group Areas Act mandated segregated living conditions. Group Areas Act, No. 36 of 1966, 10 Stat.
Republic S. Afr. Group Areas, at 141 ( 1973). Pass laws required blacks to carry passes authorizing them to be in white areas. The Separate Amenities Act segregated all public facilities such as toilets, parks, schools, sports facilities, transportation, etc. Reservation of Separate Amenities Act, No. 49 of 1953, 6 Stat. Republic S. Afr.. Constitutional Law, at 311 (1973). The legacy of apartheid in education is revealed by the fact that 30 percent of South Africa's 11 million workers have no schooling at all, and only 36 percent have been to primary school. Only 7 percent of those blacks who took the secondary-school final exam passed, as compared to 97 percent of the whites. See Mallaby, After Apartheid: The Future of South Africa 68-9 (1992). Separate black homelands, also known as bantustans, were created for each of the ten black ethnic groups. In theory, the bantustans were to become independent countries, at which time blacks would lose their South African citizenship and gain the citizenship of their homeland. Four homelands were eventually granted nominal independence between 1976 and 1981, but no country except South Africa recognized them as sovereign. The homelands covered only 14 percent of South Africa's land area, though they contained roughly half its population. The homelands were Lebowa, QwaQwa, Bophu- thatswana, KwaZulu, KaNgwane, Ciskei, Transkei, Gazankulu, Venda, and KwaNdebele. See Dugard, South Africn's Independent Homelands: An Exercise in Denationalization, 10 Denv. J. Int'l L. & Pol'y 11 (1980); Dugard, Human Rights and tlre South African Legal Order 93-94 (1978); Richardson, Self-Deternination, International Law and the South African Bantustan Policy, 17 Colum. J. Transnat'1 L. 185 (1978); Higginbotham, Higginbotham & Ngcobo, De Jure Housing Segregntion in the United States and South Africa: The Diffcult Pur.suit of Racial Justice, 1990 111. L. Rev. 763 (1990); Platzky & Walker, The Surplus People: Forced Rernovals in South Africa (1985) (housing segregation). 10 See, e.g., Huebner, Note, Who Decides? Restructuring Criminal Justice for a Democratic South Africa, 102 Yale L.J. 961 (1993); Higginbotham, Racism in American nnd South African Courts: Similarities and Differences, 65 N.Y.U. L. Rev. 479 ( 1990); Mathews, Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid Society ( 1986); Sachs, Justice in South Africa (1973); Dugard, The Judiciarw in a State of National Crisis, ruith Special Reference to the South African Experience, 44 Wash. & Lee L. Rev. 477 (1987); Greenburg, South Africa and the American Experience, 54 N.Y.U. L. Rev. 3 (1979); Kentridge, Civil Rights in Southern Africa: The Prospect for the Future, 47 Md. L. Rev. ?71 (1987); Neier, The Judiciarys Role in South Africa: Institutionnl Limitations and Moral Leadership, 54 N.Y.U. L. Rev. 1163 (1979); Pitts, Judges in an Unjust Societv: The Case of South Africa, 15 Den. J. Int'l & Pol'y 49 ( 1986); Bindman, South Africa and the Rule of Lavr ( 1988); Klug, The South African Judicial Order: A Comparative Analysis of the South African Judicial System and Judicinl Transitions in Zimbabwe, Mozambique, and Nica- rngun, 12 Hastings Int'l & Comp. L. Rev. 173 (1988); Comment, What Role Can South African Judges Plny in Mitigating Apartheid? A Study of the Urban African Legal Regime, 1987 Wis. L. Rev. 325 ( 1987); De Vos and Van Loggerenberg, The Activism of the Judge in South Africa, 4 S. Afr. L.J. 592 (1991); Democracy and the Judiciary (Corder ed. 1989). A vast array of security laws were adopted to enable the state to crush resistance, resulting in thousands of people being arrested, detained, imprisoned, tortured, and banished, all without benefit of the right to counsel and due process. These laws included the Suppression of Communism Act of 1950, Act No. 44. later renamed the Internal Security Amendment Act of 1976, Act No. 79; the Criminal Law Amendment Act of 1953, Act No 8; the Public Safety Act of 1953, Act No. 3; the Sabotage Act of 1962, Act No. 76; the Terrorism Act of 1967, No. 83; the Internal Security Act of 1982, Act No. 74. See Berat, The South African Judiciary and the Protection of Human Rights: A Strategy for a New South Africa, 5 Temple Int'i & Comp. L.J. 181, 181-92 ( 1991 ). In addition, several states of emergency were declared, the longest being from June 1986 to 1990, resulting in even more arrests and detentions. See Berat, supra, at 192.
1 I In the 1950s, the ANC was a major participant in the Defiance Campaign, which called on blacks to boycott the racist laws that segregated public facilities. The civil rights campaigns of the 1950s helped to establish the concept of democratic consultation with the people. This trend has manifested itself over the past few years as the ANC consulted with the public about the proposed Bill of Rights and Constitutional Guidelines. Fitzgerald, Democracy and Civil Society in South Africa: A Response to Daryl Glaser, 49 Rev. Afr. Pol. Econ. 106 ( 1990). 12 The government crackdown following the protest at Sharpeville led to the arrest and imprisonment of thousands. Upon returning to South Africa after raising funds for Umkhonto in 1963, Nelson Mandela was arrested and subsequently imprisoned until 1990. The ANC and other anti-apartheid groups were also banned in 1963. Black activism re-emerged among a new generation in the Soweto riots of 1976, when black children protested Afrikaans-language instruction. More than 500 were killed and thou- sands injured in that year. See Mallaby, supra, at 19. 13 Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. sees. 5001-51 l6 (1988) (providing for limited sanctions against South Africa). See Nagan, An Appraisal of the Comprehensive Anti - Apartheid Act of 1986, 5 J. L. & Religion 327 (1987); Nagan, Economic Sanctions. U.S. Foreign Policy, International Law and the Anti-Apartheid Act of 1986, a Fla. Int'l L.J. 85 ( 1988): Clarizio, Clements & Geeter. United States Policy Toward South Africa, 1 1 Hum. Rts. Q. 249 (1989) ; Butcher, The Unique Nature of Sanctions Against South Africa, and Resulting Enforcement Issues, 19 N.Y.U. J. lnt'1 L. & Pol'y 821 (1987); Bradlow, Debt, Development, and Human Rights: Lessons from South Africa, 12 Mich. J. lnt'1 L. 647 (1991). In addition to the sanctions imposed by the U.S. and European governments, international banks refused to lend in South Africa and hundreds of companies pulled out of the country. Mallaby, supra, at 44-.17. Political activity inside South Africa increased as well. Due to these pressures, President P. W. Botha eliminated several apartheid laws in the mid-1980s. The pass laws and the laws forbidding interracial marriage were repealed. Van der Vyver, Constitu- tional Options for Post-Apartheid South Africa, 40 Emory L.J. 745, 754-5 ( 1991 ) [hereinafter Van der Vyver, Constitutional Options]. For a discussion of the multiple reasons that the government started the negotiation process, see Giliomee, supra. 14 President Botha repealed the Reservation of Separate Amenities Act, the Land Acts of 1913 and 1936. the Group Areas Act of 1966, and others. See Van der Vyver, supra, at 760-61. For an analysis of de Klerk's reforms, see Scalia, A Delicate Balance: Tlve Effectiveness of Apartheid Reforms in the Struggle for the Future of South Africa, 6 Fla. J. lnt'1 L. 177 (1990). With the collapse of the Soviet Union, it became clear that South Africa could no longer gain Western support by raising the specter of the Soviet threat and emphasizing its strategic importance as a bulwark against communism. President de Klerk, like Soviet leader Mikhail Gorbachev, knew that he would have to initiate change in order for his supporters to preserve some influence. In March 1992, he won an overwhelming majority among white voters (68.6 percent) in a referendum endorsing the changes he had undertaken since 1990. Matisonn, South Africa Transition to a Non-Racial Democracy, 16 Fletcher F. World Aff. 112 (1992).
15 See suprn note 9. Buthelezi, Chief Minister of the KwaZulu, founded Inkatha in 1975. He opposed independent status for KwaZulu, and in 1986 he and local whites developed a constitutional blueprint for multiracial government in the Natal province. Mallaby, sttprn, at 26. The South African government has funded Inkatha directly, and police and government forces have supported it in clashes against the ANC. Id. at 31. In the early 1980s, Buthelezi's denunciations of armed struggle and communism led to a major schism between Inkatha and the ANC, which views Buthelezi as a puppet of the apartheid regime. Id. Buthelezi was well-received in Washington and London due to his espousal of capitalism and his opposition to sanctions and to political violence. 16 Id. at 27 (indicating for example that 3,000 people were killed in 1990 in political violence). The violence was based on political differences that had ethnic overtones. In Natal province, where much of the fighting took place, those involved were mainly Zulu, but they were divided between Inkatha and ANC supporters. The Zulus are the single largest ethnic group in South Africa, but there are more Zulu members of the ANC than of Inkatha. 17 7 South African Law Commission, Working Paper No. 25, Project 58 (1989) discussed in Villa-Vicencio supra, at 156. For discussion of the Law Commission and its findings, see Van der Vyver, supra, at 755-58: Dugard, A Bill of Rights for South Africa: Can the Leopard Change its Spots ?, 2 S. Afr. J. Hum. Rts. 275 (1986); Van der Westhuizern, An Update on the Lnw Commission's Bill of Rights Investigation: An Intetview with the Honorable Mr. Justice P.J.J. Oliver, 4 S. Afr. J. Hum. Rts. 99 ( 1988); Bjornlund, The Devil's Work? Judicial Review Under a Bill of Rights in South Africa and Namibia, 26 Stan. J. Int'I L. 391, 405-7 ( 1990); Jozana, Proposed South African Bill of Rights: A Prescription for Equality orNeo-Apartheid 7 Am. U. J. Int'l L. & Pol'y 45, 72 ( 1991 ). For the actual text of the Law Commission's report, see 21 Colum. Hum. Rts. L. Rev. ?41 & n. I ( 1989). 18 "The details of a South African Bill of Rights cannot be considered in isolation from the social and historical context within which all attempts to constitutionally entrench certain limited civil rights have consistently been rejected by successive generations of white rulers," Villa-Vicencio, supra, at 148. 19 Rep. S. Afr. Const. Act t 10 of 1983, Proc. I 19 GG 9308, July 6, 1984. For a history of South Africa's various constitutions, see Nagan, South Africa in Transition: Human Rights, Ethnicity and Lwr in the 1990s, 35 Villanova L. Rev. 1139 (1990) ; Van der Vyver. Depriving Westntinster of its Moral Constraint.s: A Survey of Constitutional Development in South Africa, 20 Harv. C.R.-C.L.L. Rev. 291. 327-36 (1985); Basson & Viljoen, South African Constitutional Law (1988) : Carpenter,
Introduction to South African Constitutional Law ( 1987); Boulle, Constitutional Reform and the Apartheid State (1984) ; Marais, South Africa: Constitutional Development, ( 1989). 20 Ottaway, Township Scooting Having a Ripple Effect, Wash. Post, June 22, 1992, at A 12; Laurence, De Klerk Must Go, Sav 40,000 at Funeral The Irish Times, June 30, 1992. 21 1 For a discussion of PLO legitimacy during the intifada. see Wing. Legal Decisionmaking During the Palestinian lntifada: Embrvonic Self-Rule, 18 Yale Int'l L.J. 95 (1993)� Wing. Legitimacy and Coercion: Legal Traditions and Legal Rules During the lntifada, Middle East Pol'y, vol. 2, no. 2, at 87 (1993) : Wing, The Emergence of Embryonic Legal Mechanisms for Palestinian Self-Deter- mination. Arab Stud. Q., Fall 1993, at 63; Wing, Democracy, Coustitutioualism, and the Future State of Palestine, in Center for Policy Analysis on Palestine, Whither Palestine? The Future of Democracy in Palestine (Aug. 1994).
22 For the text of the invitation to the Madrid peace talks, see 6 Pal. Y.B. Int'l L. at 277 (1990/91). ).
23 The Freedom Charter was a joint effort by several groups, with the ANC as the senior partner in the Congress Alliance. The other groups included the South African Indian Congress, the South African Coloured People's Organization, and the South African Congress of Democrats. Sanders, The Freedom Charter and Ethnkity0Towards a Communitarian South African Society. 33 J. Afr. L. 105, 108. For other references discussing the charter, see Luthuli, Let Mv People Go-An Autobiographv (1983); Karis & Carter, From Protest to Challenge: A Documentary Histon ofAfrican Politics in South Africa 1882-1964 ( 1973); Thirny Years of the Freedom Charter (Suttner & Cronin eds. 1986) ; Sanders, The South African Freedom Charter, in Law and Justice in South Africa 220 (Hund ed. 1988); Van der Westhuizen, Some Notes on the ANC, Dakar, and Human Rights. 4 S. Afr. J. Hum. Rts. 86. 91 (1988); Hund, A Bill of Rights for South Africa, 34 Am. J. Juris. 23, 38-42 (1989). The charter is reprinted in 21 Colum. Hum. Rts. L. Rev. 249-51 ( 1989). The Freedom Charter became the ideological foundation of the anti-apartheid movement between 1965 and 1990, when many ANC leaders were either imprisoned or in exile. It declares that: The People Shall Govern ... All National Groups Shall Have Equal Rights ... The People Shall Share in the Country's Wealth ... The Land Shall Be Shared Among Those Who Work It ... All Shall Be Equal Before the Law ... We Shall Enjoy Equal Human Rights ... There Shall Be Work and Security ... The Doors of Learning and of Culture Shall Be Opened ... There Shall Be Houses, Security and Comfort ... There Shall Be Peace and Friendship. Written in the form of a broad manifesto, the charter was revolutionary because at the time, most of Africa was still under colonial rule and legal segregation was just beginning to be abolished in the United States. 24 The discussion documents include African National Congress, Constitutional Guidelines for a Democratic South Africa (1989), reprinted in 21 Colum. Hum. Rts. L. Rev. 235 App. A (1989) ; ANC Constitutional Committee. A Bill of Rights for a New South Africa ( 1990) reprinted in 18 Soc. Just. 49 (Spr.-Sum. 1991): ANC Constitutional Committee, What is a Constitution? (1990); African National Congress, Constitutional Principles and Structures for A Democratic South Africa 24 (1991): ANC Constitutional Committee, A Bill of Rights for a New South Africa (1992). For a discussion of the philosophy underlying the ANC's constitutional guidelines, see Sachs, Post-Apart- heid South Africa: A Constitutional Framework, 6 World Pol' y J. 589 ( 1989). For a discussion of the text of the guidelines, see Corder & Davis, The Constitutional Guidelines of the African National Congress: A Preliminary Assessment, 106 S. Afr. L. J. 633 (1989), and Van der Vyver, Comments on the Constitutional Guidelines of the African National Congress, 5 S. Afr. J. Hum. Rts. 133 (1989). ).
25 Tough Issues Trouble South African Negotiations, Afr. News (June 22-July 5, 1992). 26 The third draft of the Draft Basic Law is reprinted in J. Palestine Stud., Sum. 1994, at 137. For a critical commentary on the law, see Aruri & Carroll, A New Palestinian Charter, id., at 5. 27 Young, The Debate on Democratization in Africa, in Thompson, The U.S. Constitution and Constitutionalism in Africa 127 ( 1990). In keeping with this principle, the South African constitution established legal structures for the express purpose of institutionalizing democracy in the country. The textual provisions it used are a potential source of inspiration for the drafters of the Palestinian Basic Law.
28 South Afr. Const. art 68. 29 Draft Basic Law art. 58. 30 Sachs, The Future Constitution! Position of White South Africans (1990), cited in Fitzgerald, supra, at 108-109. 31 For a discussion of these options, see Motala, Independence of the Judiciay. Prospects and Limitntions of Judicial Review in Terms of the United States Model in a South African Order: Towards an Alternative Judicial Structure. 55 Albany L. Rev. 367, 397 (1991). For a review of the shortcomings of judicial review, see Maduna, Judicial Preview and the Protection of Human Rights under a New Constitutional Order in South Africa, 21 Colum. Hum. Rts. L. Re\. 73 (1989). Nelson Mandela has stated: "For South Africa, the idea of a Constitutional Court is quite revolutionary ... The issue of whether we need or want a Constitutional Court ... presupposes the
acceptance of constitutionalism. Without constitutionalism we do not need a Constitutional Court." Speech delivered to delegates at a conference on a Constitutional Court for South Africa, Magaliesburg (Feb. 1, 199 1), quoted in Haysom, Democracy, Constitutionalism, and the ANC's Bill of Rights for a New South Africa, 18 Soc. Just. 47 ( 1991). 32 The regular judiciary contained only one Indian and noblack judges. At the time the interim constitution was drafted, only three black senior advocates were even qualified for the bench. Van der Vyver, Constitutional Options, supra, at 802. 33 South Afr. Const. art. 105 34 For more on the Palestinian judiciary, see Bisharat, Palestinians Lawyers and Israeli Rule: Law and Disorder in the West Bank ( 1989). 35 Draft Basic Law arts. 37, 94, and 98. 36 Id. art. 99 37 South Afr. Const. ch. 13.
38 Id. art. 112. 39 Id. art. 115. 40 Id. art. 119. 41 Id. art. 122. 42 Draft Basic Law art. 35. 43 The Tunisian example is not encouraging. Despite the creation of a quasi-governmental human rights body, Tunisia was recently cited by Amnesty International as a violator of human rights. Aruri & Carroll, supra, at 12.
44 South Afr. Con.�t. art. 71. 1. 45 A full list of the principles is found in schedule four of the constitution. 46 See Kassim, Legal Systems and Developments in Palestine, I Pal. Y.B. In!'] L. at 19 ( 1984).
67 Draft Basic Law art. 38. 68 Id. art. 39. 69 Id. arts. 40-46. 70 Bernstein, For Their Triumph and For Tlreir Tears 7 (1985). 71 Id. at 23. 72 Carlin, After Violation, There is Only For. The Independent, May 30. 1992, at 14. 73 Bernstein, supra, at I 1. 74 Fuzz Another Good Fight, L.A. Times, Dec. 9, 1991, at B4.
75 ANC Women Speak Out, Outwrite, Nov. 1985. 76 South Africa: The Countdown to Elections, S. Afr. Project, Feb. 14, 1994, at 6. The provision on customary law that was deleted, Chapter 3(32), would have read: "[E]very person who (a) in pursuance of the freedom of association belongs to a community which observes a system of customary law; or (b) of free and informed choice observes the rules and practices of a system of customary law and associates with other persons observing the same rules and practices shall, subject to sections 7(2) and 34(2), have the right to the recognition of such customary law as the legal dispensation governing the internal affairs of the community mentioned in paragraph (a) or regulating his or her interpersonal relationships with the persons mentioned in paragraph (b), as the case may be." 77 This part of the article draws upon Wing, Custom, Religion nnd Rights: The Future Legal Stntus of Palestinian Women, 35 Harv. Int'l L.J. 149 (1994) [hereinafter Wing, Custom]. 78 Outside of Tunisia and South Yemen, which have uniform personal status laws for all citizens, the trend in the Muslim world has been to perpetuate a system of legal pluralism in which a person's religion determines the applicable law. Mayer, Islnm nnd the State, 12 Card. L. Rev. 1015, 1027-28 ( 1991 ) [hereinafter Mayer, lslam]. Islam is the religion discussed here because 92 percent of Palestinians are Sunni Muslim, with a Christian minority composed of several denominations centered in Jernsalem, Ramallah, and Bethlehem. Bisharat, supra, at 11. 79 A number of sources discuss whether religion is the source of women's oppression. Many feminists view patriarchy as the source of oppression, whether manifested in religion, custom, or elsewhere. See. e.g., Saadawi, The Hidden Face of Eve: Women in the Arab World 4 t 1980); Mernissi, Beyond the Veil: Male-Female Dynamics in Modew Muslim Society (1987); Wing, Custom, supra. 80 For the text of the declaration, see 4 Pal. Y.B. Int'l L. at 301 ( 1987/88). See also Al-Qasem, Declarntion of the State nf Palestine - Background and Considerations, id. at 314.
8 1 Draft Basic Law art. 38. 82 Reprinted in J. Palestine Stud.. Aut. 1994, at 137. 83 Giacaman & Johnson. The Palestinians Wnmen Movement in the New Era, Middle East Rep., Jan.-Feb. 1994, at 24-25. 84 Layish. Women nnd Islnmic Law in a Non-Muslim State : A Study Bnsed on Decisions of the Sharia Courts in Israel 328 ( 1975). 85 Mayer, Law and Religion in the Muslim Middle East, 35 Am. J. Comp. L. 127, 184 (1987). With the exception of Saudi Arabia, nations have rev ised these laws in a piecemeal fashion. In a few placea, the modifications have been quite extensive examples of law reform. Sce Tunisian Code of Personal Status of 1956; Iranian Family Protection Act of 1967 as amended in 1975 (and later abrogated in 1979 by Khomeini government); Pakistan Muslim Family Laws Ordinance of 1961, discussed in Mayer, supra, at 141-42. 86 Id. at 178. Examples of the new criticisms of inequality are Women nnd Islam (al-Hibri ed. 1982);
Mernissi, Beyond the Veil, supra; Mernissi, Woman and lslam: An Historical and Theological Enquiry (1991)� ); Mernissi, The Veil and the Mnle Elite: A Ferninist Interpretation �H�n�)'.! Rights in Islam (199 1). ). 87 Mayer, Islam and Hurnan Rights: Tradition and Politics 113 ( 1991 ) [hereinafter Mayer, Human Rights]. See also the works of Mernissi, supra. 88 An-Na'im, The Rights of Women and International Law in the Muslim Context, 9 Whittier L. Rev. 491, 516 (1987). 89 See An-Na'im, id. : Esposito, Womert in Muslint Family Law 116 ( 1982): An-Na'im, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives, 3 Harv. Hum. Rts. J. 13.46 [hereinafter An-Na'im, Human Rights]: An-Na' im, Towards an Islamic Reformation: Civil Liberties, Human Rights, and International Law 52 (1990) [hereinafter An-Na'im, Islamic Refor- mation] ; White, Legal Reform as an Indicator of Women's Status in Muslim Nations, in Women in the Muslim World 60 (Beck & Keddie eds. 1978) (containing table listing reforms affecting women's status). 90 White, supra, at 58. For more on Tunisia, see Rhoodie, Di.scrimination Against Women: A Global Survev 363, 369 (1989). 91 White, supra, at 59. 92 Id. 93 For exceptions, .see Taha, The Second Me.ssage of Islam (An-Na'im, trans., 1987).
94 See al-Ghazali, Qadaya al-rnar'ah: Bat�na al-tagalid al-rakida 11'(/ al-wafida (Women's Issues: Between Stagnant and Incoming Traditions) ( 1990), described in AbuKhalil, A New Arab Ideologv? The Rejuvenation of Arab Nationalism, 46 Middle East J. 22, 32-33 (1992). 95 Id. at 33. 96 An-Na'im, Human Rights, supra, at 47. 97 Leites, Modernism Jurisprudence as a Vehicle for Gender Reform in the Islamic World, 22 Colum. Hum. Rts. L. Rev. 251, 254 ( 1991 ). 98 Id. at 273. 99 An-Na'im, !slamic Refnrrnation, .supra, at 58.
100 An-Na'im, Human Rights, supra, at 47. 101 U.N. Doc. A/810, G.A. Res. 217 (111) at 71 ( 1948). 102 G.A. Res. 34/180, 34 U.N. GAOR Supp. (no. 710.46) at 193, U.N. Doc. A/34/46 ( 1979) (entered into force Sept. 3, 1981 ) [hereinafter Women's Convention]. 103 G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 53-56, U.N. Doc. A/6316 (1967) (entered into force Mar. 23, 1976). See also the Convention on the Political Rights of Women, which was adopted by the General Assembly in 1952, and entered into force on July 7, 1954. 27 U.S.T. 1909: T.I.A.S. No. 8289; 193 U.N.T.S. 135, 7 U.N. GAOR Supp. (no. 20) at 28, U.N. Doc. A./2334 ( 1952). 104 G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (no. 16) at 49-50, U.N. Doc. A/6316 ( 1967) (entered into force Jan. 3, 1976). 105 Women's Convention, supra. 106 Id. arts. 10(c) and 10(h). 107 Id. arts. 12(l) and (2). 108 Id. art. 9. 109 Id. art. 5. 110 Id. arts. 5, 16(l)(d), and 16(])(e). III Id. arts. 2(a), 7(b), and 7(c). 112 Id. arts. 11(1)(b), I I (1)(d), 11(2)(b), 11(2)(c), 11(1)(f), 11(3).
113 Id. art. 13(c). I Ll Id. art. 13(b). 115 S /d. art. 4. Special measures protecting pregnancy are allowed. As broad as the Convention is, it does not cover abortion, pornography, domestic violence, or marital rape. 116 For a discussion of the ombudsman office in the new nation of Namibia and as proposed for South Africa, see Wing, Communitarianism, supra.
117 Wallach & Wallach, The New Palestinians,: The Ernerging Generation of Leaders 43 (1992). 118 Throughout the intifndn, the Palestinian press has featured articles on the return to customary law. Hunter, The Palestininn Uprising: A War By Other Means 3 (199 1). ). 119 Giacaman, Pnlestininn Wornen in the Uprising, 2 J. Refugee Stud. 139, 142 (1989). 120 Darweish, The Intifada: Social Chnnge, Race & Class, Oct.-Dec. 1989, at 59. 121 Abu-Amr, The Palestinians Uprising in the West Bank and Gaza Strip, 10 Arab Stud. Q. 384, 399 (1988). For a discussion of the liberating role of women, see Darweish, supra, at 59; Miller et al., Two Years of Intifada: Its Impact on American, Israeli, and Palestinian Political Climates, 31 Am. Arab Aff. 29, 36 (1989-1990) (quoting Hanan Ashrawi): Giacaman & Johnson, Pnlestininn Wornen: Building Bnrricndes and Breaking Barriers, in Intifada: The Palestinian Uprising Against Israeli Occupation 155 (Lockman & Beinin eds. 1989); Kuttab, Community Development Under Occu- pation: An Alternntive Strategy, 2 J. Refugee Stud. 131, 135; Sayigh, The lntifada Continues: Legacy, Dynamics, and Chnllenges, 11 Third World Q. 20, 37 (1989); Jad, from Salons to the Popular Committees: Pnlestinian Women 1919-1989, in lntifada: Palestine at the Crossroads (Nassar & Heacock eds. 1990). 122 Peretz, Intifada 96 (1991). Hiltermann also saw women's gains as an extension of their traditional teaching and rendering services. Hiltermann, Behind the Intifada: Labor and Woman Movement in the Occupied Territories 197 ( 1991 ) [hereinafter Hiltermann, Behind the Intifada; Hiltermann, The Women's Movement During the lntifada. J. Palestine Stud., Spr. 1991, at 52-53 [hereinafter Hiltermann, Women Movement]; Jad, supra, at 135. 123 Darweish, supra, at 59. Among the efforts to mobilize women was a December 1990 conference organized by the Bisan Center in Jerusalem and 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. Bisan Center, The Intifada nnd Some Women 's Social /ssues (1991). The hijab campaign is discussed in Wing, Decision-Making. supra, at 134-39. 124 Hiltermann, Women's Movement, supra, at 53. 125 /d.; Giacaman & Johnson, supra, at 165.
I ?6 During the early years of the intifada the four main women's committees were the Women's Committee for Social Work, affiliated with Fatah: the Palestine Federation of Women's Action Committees, affiliated with the Democratic Front for the Liberation of Palestine; the Palestine Federation of Women's Committees, affiliated with the Popular Front for the Liberation of Palestine; and the Association of the Palestine Working Women's Committees, affiliated with the former Palestine Communist Party. 127 Peretz, supra, at 97. 128 Hiltermann, Trade Unions and Women's Committees, Sustnining Movement, Crenting Pace, Middle E. Rep., May-Aug. 1990, at 32-36. 129 Warnock, Land Before Honour: Palestinian Women in the Occupied Territories 135 ( 1990). 130 Hiltermann, Women's Movernent, supra, at 53. 131 Sayigh, Encounters with Palestinian Wornen under Occupation, in Occupation: Israel over Pnlestine 269, 28. 132 March 1989 editorial of the Palestine Federation of Women's Action Committees (DFLP), cited in id. at 55. This is the position of the three progressive women's groups, not Fatah.
133 Hammami, Women, the Hijab, and the lntifada, Middle East Rep., May-Aug. 1990, at 28. 134 interview with woman activist in Ramallah (June 5, 1990), in id. at 204. 135 See id. at 198: the newsletter of the Association of the Palestine Working Women's Committees, affiliated with the Palestine Communist Party, also raised this concern. The lntifada and the Role of Palestine Women, Voice of Women, Sept. 1989, at I, cited in Hiltermann, Women:5 Movement, supra, at 55.
136 Hand, The Spirit of Liberty 189-90 (3rd ed. 1960).