Women and equality in the new constitutions of the Maghreb: The harmonization of legislation with the new constitutional texts in Tunisia and Morocco

Abstract

The inclusion in the new constitutions of the Maghreb of a new instrument of constitutional control of laws, opens perspectives that may allow the beginning of a new era for constitutional jurisdiction in these countries since for the first time constitutional rights will acquire their true stature of subjective rights, as their holders may invoke them against laws that violate them. In parallel, the significant amount of preconstitutional
legislation still in force, makes the that the organs of the constitutional jurisdiction inevitably will face unavoidably a task of «constitutionalization of the legal system», since the legislator in these countries shows some reluctance to undertake this task since it concerns the Islamic nature of the State. In fact, the constitutional guarantee of protection of the official religion permeates a branch of legal system in which a fusion between fiqh (interpretation of sacred sources) and Law has been carried out in all countries of the Maghreb, such as the one relating to personality rights and family law, that is, those branches of the legal order where fundamental rights have the greatest implication. Among them, the right to equality between men and women and its varying manifestations in the constitutional texts of these countries is certainly the most concerned by the potential unconstitutionality of numerous legal provisions such as those contained in the Codes of Personal Status or in the Penal Codes. Starting from the legal-constitutional and conventional framework on equality between men and women in Morocco and Tunisia, the purpose of this essay is to check legal provisions that a priori discriminate women by illustrating them with constitutional case-law and that of ordinary courts settled after the new Constitutions.