Iraqi Constitutions Downside For Women


The Iraqi constitution’s downside for women

Reprint. The Globe and Mail (Toronto)

The Iraqi constitution’s downside for women

By JUAN COLE

Thursday, September 1, 2005, Page A21

One of George W. Bush’s justifications for his Iraq project has been the Greater Middle East Initiative, a long-term plan to bring democracy to the Arab world. So: Is the new Iraqi constitution a setback for human rights — specifically women’s rights? If so, how bad is it?

When challenged on this issue, President Bush responded that Secretary of State Condoleezza Rice had assured him that the constitution guarantees inherent rights to women and that it talks about Islam only as “a religion,” not “the religion.” But secular-leaning Iraqi women in politics are not so sanguine. One, Safia Taleb al-Souhail, Iraq’s ambassador to Egypt OK?? formerly close to Mr. Bush, recently alleged, “We have lost all the gains we made over the last 30 years.”

Islamic law is a dynamic and evolving set of practices rather than a religious code written in stone. Still, contemporary fundamentalist interpretations of Islamic law in countries such as Iran have negative implications for the rights of women. They give women only half the amount of inheritance that their brothers receive. They give the right of unilateral divorce only to men. They make no provision for alimony. They allow polygamy. Shia law permits the contracting of temporary marriages for specified periods of time.

Contrary to what the Bush administration keeps maintaining, Iraqi law affecting the status of women had been much revised by modern reformers and by the revolutionary Baath Party, which had been influenced by Marxist thought on women’s rights. In the 1970s Iraq was probably the most progressive Arab country on women’s issues (although women later lost some ground under Saddam Hussein).

In 2003 through 2004, when Iraq was under direct U.S. rule, Shia leader Abdul Aziz al-Hakim attempted to put all Iraqis under Shia religious law for personal status matters such as marriage, divorce, inheritance, and so forth. His attempt was beaten back by the impressive woman physician and politician, Rajaa al-Khuzai, in alliance with secular-leaning men.

But now women such as Ms. Taleb al-Souhail — whom President Bush honoured at his State of the Union address, and who flashed a “V” for victory sign — are discouraged. The Jan. 30, 2005, elections brought to power the Shia fundamentalist parties that had long sought to overthrow the secular Baath. They dominated the drafting of the new constitution. Article 2 therefore says that Islamic law is “a fundamental source” of legislation. The Shia religious parties had wanted it to declare that Islam is “the source” of law. The indefinite article was used instead, accounting for President Bush’s somewhat confused statement to the press. But having Islam be “a fundamental source” of law is nearly as strong.

Paragraph A goes on to say that parliament may not pass civil legislation that contradicts the “established laws of Islam.” This phrase is clear in Arabic, but has been mistranslated by the Western wire services. If parliament passes a law requiring that the shares of women’s inheritance be equal to that of their brothers, will it be struck down as contradicting “the established laws of Islam”?

The new constitution does forbid discrimination on gender or ethnic grounds, and prohibits legislation that contravenes human-rights law. Thus it contains a key contradiction.

Another ambiguity comes in article 39, which says, “Iraqis are free to practise matters of personal status in accordance with their religions, sects, beliefs, or choices, and this shall be organized by statute.” The implication seems to be that there will be a civil code passed by parliament, but that Iraqis may choose to be under the religious law of their community instead.

But consider the practical problems of applying this: Might not a woman from a conservative Sunni family feel pressure from her father, brothers and husband to accept Islamic law, even if she were secular-leaning? What would happen if a wife chose civil law and her husband chose Shiite law? Would she be allowed to initiate a divorce? Would she receive alimony?

Given that so much about women’s status is unclear in Iraq’s new constitution, subsequent statutes passed by parliament and the rulings of judges will be decisive. But the religious Shia parties have a good chance of dominating parliament for years to come, given the Shiite majority in Iraq. They will also have opportunities to pack the courts with Shiite fundamentalist judges and even ayatollahs (article 90 allows appointment of experts in Islamic law as court judges).

Clearly, conservative, religious parliamentarians and justices could take away with one hand the provisions for gender equality that the constitution has granted with the other.

Some have taken hope from the provision that at least 25 per cent of parliamentarians be women. But both in Pakistan and Iraq, fundamentalist parties have easily found women to run who will uphold religious law.

As for Rajaa al-Khuzai, who once bested the clerical leader al-Hakim, she is thinking of emigrating. “I am not going to stay here,” she told the New York Times, adding: “This is the future of the new Iraqi government — it will be in the hands of the clerics.”