By discussing the idea of Constitution as the highest act of a state, we actually discuss rights (therefore obligations) of citizens of that same state. It is completely legitimate request for presence, identification and recognition of not only individuals but also groups and subgroups within the Constitution along with seeking equal treatment in rights (and their guarantee). Single rights therefore must not be necessary opposite to collective rights or “compete” with them but have to be recognized and definitely highlighted. This is the main idea that moves the Initiative Women Citizens for Constitutional Reform forward: gender equality in Constitution of BiH.
First Why: Why the Initiative Women Citizens for Constitutional Reform?
The initiative involves 36 members. The very essence of the voluntary approach to Initiative, the number and diversity in membership points to the maturity of the idea on need to reform the Constitution in regards to gender equality. The Initiative is indeed a great mechanism for changes and its significance comes from joint strength of the members (their knowledge, experience and dedication to idea of gender equality) which successfully channels requests that are not fragmented but articulated and established on ten-years-long work in this field. This is how the Initiative articulates requests form the practice and conducts theoretical discussions on Constitution through “Platform of Women’s Priorities for Constitutional Reform”.
Second Why: Why Constitution?
Simply: because the Constitution is the highest legal-political act of a state. All laws must be reconciled with the Constitution (let’s not mention the different levels where we have the laws in BiH), and guaranteed gender equality in the Constitution also means obligation of harmonizing laws which do not support it. Another argument, which is the reason why the Initiative advocates for reform of the Constitution, is that, no matter what are the specifics BH Constitution, its changes (which can be done and are not prohibited) should include not only consensus of the political parties but involve all citizens in defining constitutional document as the framework of future common life.
Third Why: Why now? There is no “right” time for gender equality. Actually the time existed – when Constitution of BiH was created (no matter how specific it is). By putting aside gender equality, under excuse that there are “more important issues”, this problem is very often and very well neglected which means we do not deal with the real problems of the society. We have been very successful in not referring gender equality as “a problem”, “inequality” or important. And so it stays on margin, outside agenda of what one society should discuss. There is a long-lasted need for gender equality in the Constitution of BiH but now, after fundamental joint work, it gained its shape through “Platform” and Initiative. And this is the reason why the time for reform of the Constitution from gender aspect: is now.
Based on the three mentioned issues, “Platform of Women’s Priorities for Constitutional Reform” has five key concrete proposals. Every single one of them is based on recognition and definition of insufficiencies within the Constitution and detailed analysis of the proposals coming from members of the Initiative.
I: Using gender responsible language in the Constitution of BiH
Constitution of BiH does not use gender sensitive language. Currently, Constitution, both in language and grammar, does not include female gender. Everything is in male gender, which is not natural in our languages (B/C/S) at all. Female gender in this and many other cases is presumed. Why? It is devastating that women are actually not visible in the Constitution; there are no women – as such in the Constitution. Of course, the answer for this often will be that it is not that important and that the language of the Constitution implies all. If implies all, than we should not have problem to write the same: beside citizen should be written woman citizen; besides delegate should be written woman delegate; beside governor should be written woman governor, etc. There is no need or justification for the gender to be presumed. At least not in the highest legal-political document of a state because this is where both citizens and women citizens live. By introducing gender responsible language in BH Constitution we directly reduce discrimination of women or more accurately their lack in the Constitution. In this way Constitution does not promote stereotypes and respects grammatical gender (female) thus making women visible as equal members of society (instead being presumed).
II: Introducing affirmative measures into Constitution of BiH in order to achieve full gender and sex equality
Affirmative measures are not the news instead their use in the legal system of BiH in term of gender and sex equality is merely exception – something which is not common. Constitution of BiH does not prescribe gender and sex equality explicitly which in practice means exceptional inequality (and affirmative measure which are rare). Furthermore, there is not obligation of a state to implement affirmative measure because as the grammatical female gender is presumed, the gender equality is being neglected. The more is neglected, the more this issue must be regulated at the level of the Constitution.
By introducing affirmative measures into the Constitution we would see inclusive politics in the practice. This would include very important spheres of life: employment, labor right, set of parenthood rights, electoral right. The practice points to the devastating data on inequality of women in all fields, so devastating that we need to guarantee the right to work in the Constitution by mentioning specifically both men and women. The same applies for all other mentioned fields. The exact affirmative measures are “the tool” which would enable equalization of the position and access to constitutionally guaranteed rights for the less represented gender. By introducing affirmative measures, the Constitution of BiH would enable more responsible implementation of the policies of equal opportunities.
III: Expending current Catalogue of Rights with provisions in regards to unique health, social and family care
Laws at entity level that are not harmonized; there are unequal degree of social insurance and health protection; extremely bad and difficult conditions of life in certain parts of BiH in these fields, lack of will in solving emerged problems and lack of mechanisms that would “make us” solve the problems. All these are descriptions of the current situation in the field of health, social and family legislative in BiH. It remains unclear why Constitution lack proper defining of a state as social but it is obvious that there are chapters which enable presence of non-harmonization of the laws in very important fields. How? Firstly, the obligation of the state to implement standards of human rights in this field has not been established. Furthermore, in Constitution itself, the rights to health care have not been regulated as special rights.
What would social state mean for citizens of BiH? It would mean constitutionally prescribed prohibition of violence based on gender and sex; it would mean freedom of making decisions on reproductive health; it would also mean special protection that mother and single parents enjoy; it would mean protection of the labor status of woman, etc. By precisely defining Catalogue of Rights, in the parts where they are not sufficiently prescribed or not defined/prescribed at all, our “social state” would not only contribute to full equality of genders but also guarantee specific rights of women (which are there, are specific and as such should be prescribed). It is very important to stress that this is not set of rights that include “only” women. All these rights, consequences of their disorder and inefficiency also impact men, children, and family by causing line of consequences for the whole BH society.
IV: Greater judicial and legal protection of human rights and freedoms
Having in mind circumstances in creating Constitution of BiH, for a long period of time we found the preference of the collective rights of constituent peoples in comparison to individual civil rights to be logical. The whole interpretation has not been changed in the last twenty years – and that question “why now” now gets full meaning. Taking all serious issues, those “constituent ones” are still important while we can find time or place for “gender issues”. Unfortunately, besides the fact that we are (or are not) part of the constituent collective, we are still all citizens with equal rights. As such, we should have for example opportunity of initiating single appellation before Constitutional Court of BiH.
Greater judicial and legal protection in Constitution of BiH would very concretely mean explicitly including provisions regarding equality before all courts (no, it is not presumed) which would further on provide court protection of human rights and freedoms, thereby definitely guaranteeing individual rights in all fields.
V: Principle of direct democracy applied onto process of constitutional reform
Currently, it is not prescribed possibility of initiating individual (citizens’) initiative for changing and amending Constitution. In practice, this means that procedure for amending constitution cannot come directly from citizens. Similarly, this document does not prescribe issues that citizens of BiH can legally discuss (political will). By including principle of direct democracy into constitutional text would leave citizens of BiH with opportunity to participate in decision making. This would also enable citizens to articulate their opinions within the obligatory segment of decision making process and allow them to express their aspirations in relation to the highest political-legal act of the sate they live in.
The Initiative proposes two models for changing direct democracy: civil initiative and referendum on issues from jurisdiction of the Parliamentary Assembly.
“Platform of Women’s Priorities for Constitutional Reform” puts focus on gender equality in a way that the same does not be something that we (society) need but provides us with concrete priorities established within framework of both necessary and possibly. Gender equality in Constitution of BiH is not caprice: every lack of the same reflects corpus of rights that every single woman in BiH has, or has not, her everyday life and the sense of equality and affiliation.
I remind you once more that regulating within Constitution also includes harmonization of all lower regulations; by reconciling regulations at all levels women will not automatically, in everyday life, become equal in every so far mentioned segment – but will have prescribed right, legal and (more important) constitutional base to require equality, enjoyment and equal treatment in rights and practice. The rights will stop to be “presumed”, “neglected”, “ignored”… And this is actually the essence of why the Initiative, Constitution and gender equality through “Platform of Women’s Priorities for Constitutional Reform” in this very moment are here.
Lejla Gačanica
Women Citizens for Constitutional Reform 