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85CONSTITUTIONAL ENTRENCHMENT OF THE PRINCIPLE OF THE EQUALITY OF RIGHTS AND FREEDOMS FOR MEN AND WOMEN: ANALYSIS OF FOREIGN PRACTICES
DOI: http://dx.doi.org/10.14420/en.2013.64
Markhgeim Marina Vasilyevna, Doctor of Juridical Science, Professor and Head of the Constitutional and Municipal Law Department of the Juridical Institute of the Belgorod State National Research University, e-mail: markheim@bsu.edu.ru.
Moskalenko Stanislav Aleksandrovich, Ph.D. candidate in the Constitutional and Municipal Law Department of the Juridical Institute of the Belgorod State National Research University, e-mail: moskalenko_s@bsu.edu.ru.
The authors have studied equality of men and women as a constitutional principle in 24 countries of the world, including CIS. Not all the states supporting the principle have entrenched it precisely in constitutional acts. The USA, for example, has no corresponding constitutional norm. The authors studied the location of norms on the rights and obligations of men and women in constitutional texts, and came to the conclusion that in some states the principle is set out as a general legal principle, while in others it appears only as a principle for family and conjugal relationships. The authors substantiate their conclusion on the necessity for constitutional guarantees of gender equality in states with a democratic political regime. An important conclusion of the article is a classification of possible ways to entrench the rights of men and women in a constitution: the standard, nonimage, fragmentary and lateral methods.
equality of men and women, constitutional principle, equal rights,
legal relations in the family, equal access, enforcement of rights and
freedoms, democratic political regime, democratic demands, gender policy, discrimination, constitutional legislation, constitutional law of foreign countries.
The modern legislation of all civilized countries, as well as international human rights law, establish the equal rights of men and women in all spheres
of their lives and the prohibition of discrimination against women as one of their
obligatory democratic demands; those who are noncompliant are subject to penalties, including criminal ones1.
Abstract.
Keywords:
1 BondarN.S. Citizen and public power: Constitutional provision of rights and freedoms in local selfgovernment. - M.: “Gorodets”, 2004. - P. 167.
In addition, it should be emphasized that, even today, the equality between men and women is not explicitly constitutionally established and developed in all countries. Accordingly, the USA has very extensive legislation that forbids discrimination against women, but a proposed amendment to the constitution that would have established equality in the rights of men and women did not go into effect because it was not ratified in time by most states1.
An analysis of the existing constitutional status of the establishment of the equality of the rights of men and women in 24 states in the world appears to be timely; the analysis examines federative states (Austria, Belgium, Brazil, Germany, Canada), unitary states (Albania, Hungary, Greece, Spain, Netherlands, Poland, France, Sweden) and the CIS countries.
An analysis of the constitutions of the federative states has shown that Austria, Belgium and Brazil lack provisions regarding the equal rights of men and women. One can evaluate this in the context of general principles of equality before the law. Thus, in Austria (Art. 7) those general principles are addressed to all citizens, in Belgium (Art. 10), they are addressed to Belgians, and in Brazil (§1 Art. 141), they are addressed to everyone.
In Germany and Canada, provisions regarding the equal rights of men and women are included accordingly in chapter/sections entitled “Basis rights” and “Right to equality”, which are dedicated to rights and freedoms. In particular, P. 2 Art. 3 of the FRG Constitution states: “Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for men and women and take steps to eliminate disadvantages that now exist”.
The constitutional acts of Canada (Art. 28) include a guarantee of equal rights, not to men and women, but to “persons of both sexes”, independent of any other provisions.
In three out of eight of the constitutions of unitary states that were examined, there also is an approach that reflects the equality of the rights of men and women in the context of the general principle of the equality of everyone before the law; in Albania, the principle is addressed to everyone (P. 1 Art. 18), as it is in Spain (Art. 14). Furthermore, discrimination is impermissible in the Netherlands, in which the Art. 1 of the Constitution establishes that “All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted”.
In the remaining five constitutions of the unitary states, provisions regarding the equal rights of men and women are present in the Preamble (France), in the basics of the state system (Sweden) and/or in a section/chapter that is dedicated to rights and freedoms (Hungary, Greece, Poland, Sweden).
A content analysis of their constitutional rules shows that these states have, in their own way, addressed the principle of the equality of the rights of men and
1 AvtonomovA.P Human rights, law enforcing and human rights activities. - M.: Foundation “Liberal mission”, New Literary Review, 2009. - P. 57
women. The Preamble of the Constitution of France of 1946 states that “The law guarantees women equal rights to those of men in all spheres”; P. 1 Art. 66 of the Constitution of Hungary emphasizes that such equality is extended “to all civil, political, economic, social and cultural rights”; P. 1 Art. 32 of the Constitution of Poland establishes the equality of the rights of men and women in family, political, social and economic life, with a specification in P. 2 of that Article that women and men have “equal rights, in particular, regarding education, employment and promotion, and shall have the right to equal compensation for work of similar value, to social security, to hold offices, and to receive public honors and decorations”; Art. 2 of the Constitution of Sweden establishes that “Society must ensure equal rights to men and women”, and Art. 16 specifies that “A law or other order cannot contain an unfavorable attitude to any citizen on the basis of sex, provided that the order is not induced by an aspiration to ensure the equality of men and women or does not involve military duty or a corresponding service duty”.
The third group of states that were examined with respect to their constitutional establishment of the principle of the equality of the rights of men and women were the CIS countries1, which emerged as a result of the collapse of the USSR in December of 1991. Their sovereign development and the formation of their legal systems were mediated by the union's system of political and legal coordinates. Precisely for that reason, it is interesting to analyze the characteristic processes of constitutional individualization, in particular, as it is exemplified by the formalization of the principle of the equality of men and women. In that sense, the Russian Federation, with its constitutional provision in P. 3 Art. 19, which states “Men and women shall enjoy equal rights and freedoms and equal opportunities to exercise them”, was chosen as a yardstick because it textually reproduces the provision of the Convention on the Elimination of All Forms of Discrimination against Women of 1979, which was ratified by the Soviet Union in 1990 and whose obligations came to Russia by way of succession.
An analysis of the constitutions of the CIS countries reveals that a number of them establish the equality of the rights of men and women not directly, but indirectly, through the principle of the equality of everyone before the law and the principle of the impermissibility of discrimination. Accordingly, in Armenia, those principles are addressed to a person and a citizen (Art. 16); in addition, women and men “are entitled to equal rights as to marriage, during marriage and divorce” (P. 2 Art. 35). Analogous constitutional formulations are used in Byelorussia (Art. 22, Art. 32). In Moldavia, the principle of the equality of everyone before the law and before the authorities is established (Art. 16), and the equality of the rights of men and women is defined as the basis of the family (P. 2 Art. 42). Kazakhstan also establishes the principle of the equality of everyone before the law and the courts, as well as the principle of the impermissibility of discrimination (P. 1 and
1 See: Agreement on creation of the Commonwealth of Independent States (Minsk, December 8, 1991) // Information Herald of the Council of Heads of States and the Council of Heads of Governments of the CIS “Commonwealth”. - 1992. - № 1. - P. 6.
2 Art. 14).
In the other states of the CIS, provisions regarding the equality of the rights of men and women are specifically included in sections/chapters dedicated to rights and freedoms (“Basic rights, freedoms and obligations” in Azerbaijan1, “Basic rights and freedoms” in Kirghizia2, “Rights, freedoms, basic obligations of a person and citizen” in Tajikistan3, “Rights, freedoms and obligations of a person and citizen” in Turkmenistan4, and in Ukraine5) or to their guarantees (“Guarantees of rights and freedoms of a person” in Uzbekistan6). In those constitutions, as a rule, an article with a corresponding name is separately dedicated to the right of equality.
A further analysis of the constitutions of the CIS countries allowed us to separate them into three groups. The first group includes constituent acts with a standard formulation regarding the equal rights of men and women and equal opportunities for their implementation. This constitutional version is implemented in Kirghizia (P. 4 Art. 16) and in Ukraine (P. 3 Art. 24). In addition, the latter specifies that the equality of the rights of men and women is ensured by the entitlement of women to opportunities equal to those available to men in socio-political and cultural activities, in education and professional training, and in their work and the remuneration for it; special measures for the protection of the labor and health of women, and the establishment of pension privileges; arrangements regarding the conditions for concurrent work and maternity; and legal safeguards and material and moral support for maternity and childhood, including the entitlement of pregnant women and mothers to paid leave and other privileges. Let us note that these guarantees correspond with those that were contained in the constitutions that existed during the Soviet period.
The second group includes constituent acts that establish the equal rights of men and women, but do not include a statement establishing equality of opportunity. This is characteristic of Azerbaijan (P II Art. 25); Tajikistan (P 2 Art. 17); and Uzbekistan (Art. 46 of Constitution). In Turkmenistan, the constitutional formulation of the principle of the equality of men and women is even more limited and is reduced to the equality of civil rights (Art. 20).
To summarize the study that was undertaken, let us note that the constitutional establishment of the principle of the equality of men and women
1 Constitution of the Azerbaijan Republic of November 12, 1995 (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=2618.
2 Constitution of Kirghizia of June 27, 2010 // Russian Uniting Union of Compatriots in Kyrgyzstan.
URL: http://russkg.ru/index.php?option=com_content&view=article&id=95:-27-2010-&catid=27:2010-
08-20-08-52-42&Itemid=30.
3 Constitution of the Republic of Tajikistan of November 6, 1994 r. (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=2213.
4 Constitution of Turkmenistan of 2008 // // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=2376.
5 Constitution of Ukraine of June, 1996 (with further alterations) // // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=8689.
6 Constitution of the Republic of Uzbekistan of December 8, 1992 (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=818.
must be immanent in any legal state in which a democratic political regime is established. In our opinion, such an establishment positively influences the implementation of the principle of the equality of men and women.
An analysis of the constitutions of three focal groups of states has shown that a standard (Kirghizia; Germany and Canada; Hungary, Greece, Poland, France, Sweden) version of the establishment of the principle of the equality of the rights and freedoms of men and women is characteristic of them. The most widespread version, nevertheless, was discovered to be the indirect version (Armenia, Byelorussia, Kazakhstan, Moldavia; Austria, Belgium, Brazil; Albania, Spain, Netherlands), in which the states have established the principles of the equality of everyone before the law and the impermissibility of discrimination for any reason. Fragmentary (Azerbaijan, Tajikistan, Uzbekistan) and lateral (Ukraine) versions of the constitutional establishment of the principle of the equality of the rights and freedoms of men and women have been implemented only in the CIS countries.
References
1. AvtonomovA.P Human rights, law enforcing and human rights activities.
- Moscow.: Foundation “Liberal mission”, New Literary Review, 2009.
2. Bondar N.S. Citizen and public power: Constitutional provision of rights and freedoms in local self-government. - M.: “Gorodets”, 2004.
3. Constitution of the Azerbaijan Republic of November 12, 1995 (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=2618.
4. Constitution of Kirghizia of June 27, 2010 // Russian Uniting Union of
Compatriots in Kyrgyzstan. URL: http://russkg.ru/index.php?option=com_
content&view=article&id = 95:-27-2010-&catid=27:2010-08-20-08-52-42&Itemid=30.
5. Constitution of the Republic of Tajikistan of November 6, 1994 r (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=2213.
6. Constitution of Turkmenistan of 2008 // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc. fwx?rgn=2376.
7. Constitution of the Republic of Uzbekistan of December 8, 1992 (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=818.
8. Constitution of Ukraine of June, 1996 (with further alterations) // Information and law system. Legislation of the CIS countries. URL: http://base. spinform.ru/show_doc.fwx?rgn=8689.
9. Agreement on creation of the Commonwealth of Independent States (Minsk, December 8, 1991) // Information Herald of the Council of Heads of States and the Council of Heads of Governments of the CIS “Commonwealth”. - 1992.
- № 1.
