Constitutional and Legal Rights of Iraqi Women

Originally posted October 2007.
 

This Policy Brief explores the legal and political obstacles that Iraqi women will face when they try to exercise their rights as stated in the 2005 constitution. To clarify, by women’s rights I refer to those rights codified in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Iraq ratified in August 1986.1 It is important to note that Iraq ratified the Convention to the degree that its provisions would not contravene Islamic law. (See sidebar.)

The First Obstacle: Vagueness

The Iraqi constitution contains a number of articles that relate to women’s rights. The preamble states: “We the people of Iraq … are determined … to … pay attention to women and their rights.”2 However, the phrase “pay attention to” does not obligate the government to advance and guarantee women’s rights. Rather, demarcation of the government’s responsibilities toward women in an uncompulsory way gives the government an excuse to say that it “paid attention” to women’s rights, even though the rate of illiteracy among women increased from 23% in 2000 to 65% in 2004.3

The constitution states that “Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status;”4 yet, providing equality is not enough. Indeed, the illiteracy rate among women suggests marked inequality between women and men at the educational level, rendering women, who have not had an “equal” opportunity to become educated, less qualified for the same jobs. “Positive” discrimination, long demanded by the women’s movement, would enable women to compete with men, even if they were less qualified. While the Equality Clause may work perfectly well in stabilized countries, in post-conflict countries, such as Iraq, positive discrimination is needed to give women an initial push towards advancement.

The constitution guarantees women the right to run for office and vote.5 However, the quota of 25% for women’s representation in all decision-making bodies, provided for in the interim constitution, was moved from the Chapter on Duties and Rights to the Chapter on Transitional Laws, implying that the quota could easily be removed in the future. Without the quota, long demanded by the women’s movement, it will become very difficult for Iraqi women to participate in the political arena, given its male domination.6 In addition, as a result of these factors, women may have a presence in the parliament, but still fail to fully represent women’s interests. For example, female members of parliament tried to adopt Sharia Law and demolish the Iraqi Family Law issued in 1959, although the Iraqi Family Law is considered among the best laws in the Middle East regarding women’s rights.7 In terms of voting, Iraqi women suffer from “family voting,” which is when the head of the family, usually a man, decides for whom the whole family will vote. Thus, women will not neccesarily vote for candidates who represent women’s interests, since men — the heads of households — are controlling the voting process in many instances.

To take another example: The constitution guarantees Iraqi mothers the right to pass on Iraqi nationality to their children;8 yet, that right cannot be fulfilled unless the Parliament issues a law entitling women to do so.9 Usually that process, which has not yet begun, takes approximately five years. However, the existing law and practice entitles men to pass their citizenship to their children without imposing other requirements.

In Article 29.b, the constitution “protects” motherhood and mentions women specifically as mothers. In that article, the term “protect,” which implies a legal obligation, is used for the first time. Yet, the article does not specify what kind of protection is guaranteed. Is it social security protection, mentioned in Article 30, or is it related to the health services mentioned in Article 31? If so, what is the purpose of mentioning them again? Furthermore, which governmental agency is responsible for providing protection? Is it the Ministry of Health, the Ministry of Women’s Affairs, or perhaps the Ministry of Labor and Social Affairs? It can be the Ministry of Interior as long as the constitution is seeking protection. When does this protection start and when does it end? In addition, the article states that it will only be provided to mothers but does not mention women who are not mothers and if they will be offered protection. When can a mother claim that she did not receive the “protection” as a mother? Can she claim that her rights are violated if her boss refuses to give her maternity leave, or if she goes to a public hospital to get medication for her child, and the hospital refuses? All of these questions must be addressed.

The constitution guarantees all Iraqis freedom from coercion based on religion or politics, as well as freedom of opinion, expression, assembly, and association.10 Does this mean a woman may express her own ideas? Can she establish an association? How can that article be enforced (consider the assassination of female activists such as Iraq Governing Council member Akila Al Hashimi and Amal Al Mamilshi)? Can a Christian or Sab’iee woman establish her own association to teach her religion? It is sufficiently clear that the vague language surrounding women’s rights in the Iraqi constitution, as well as structural and institutional discrimination on the ground, render these rights impracticable. The government will use this vagueness as a loophole to deprive women of their rights in order to establish an Islamic republic. For example, Iraq is a signatory to the International Treaty of Elimination of all Forms of Discrimination Against Women (CEDAW), yet the constitution does not recognize it. Moreover, the Iraqi constitution does not recognize any human rights conventions.11 This denial gives an indication that the government is trying to enforce Sharia law, and will disrespect any other legal obligation that it considers a violation of Sharia law.12

The Second Obstacle: Discrimination

The constitution states in Article 2 that “Islam is the official religion of the state and is a basic source of legislation” and “No law can be passed that contradicts the undisputed rules of Islam.”

In reality, the “undisputed rules of Islam” are often disputed. For example, while all Islamic scholars agree that a woman may inherit from her father, there is controversy surrounding the share she should inherit. May she inherit the whole inheritance if she is the only child or should her male cousin take a share? The same problem arises in marriage, divorce, and custody. Thus, Article 2 can lead to discrimination against women.

For example, in the context of contemporary Iraq, many Iraqi women in Basra report that they have been forced to wear a veil or to restrict their movements in fear of harassment from men. Female students at the University of Basra report that groups of men stopped them at the university gates and harassed bareheaded women, telling them they were violating Islamic law. The men also harassed female students who were not dressed in loose-fitting clothes or who wore make-up. As of April 2004, nearly all women at the university were wearing veils, including Christian Iraqis.13

If any of those women try to appeal in front of the Supreme Court, claiming her right of freedom of choice or freedom of religion, stated in Articles 36 and 37, she will face two legal barriers:

1) She cannot exercise her rights because Article 2 gives Islam superiority above other religions, thus contradicting Articles 36 and 37.

2) The Supreme Court consists of judges and Sharia law experts, but does not include experts in Christianity and other religions — which explicitly discriminates against other religions.14

Despite apparent progress in Iraqi law, the position of Muslim women has not been elevated; indeed the interpretation of Sharia law in many Muslim countries has been used to justify domestic violence or the prevention of women from traveling without a male guardian.15

In 2003, the US military commander of Najaf appointed the city’s first female judge. The appointment was met with a protest by some of the city’s both male and female lawyers, and a negative Fatwa from senior Shi‘ite clerics. The swearing-in of Nidal Nasser Husayn, who also became the first female lawyer in Najaf in 1987, was indefinitely postponed due to the resentment against her nomination. A few of Najaf’s judges supported the nomination of a female judge, arguing that nothing in Iraq’s legal code barred women from the judiciary. Opponents of the nomination claimed that Islamic law forbids women to be judges. In this case, the Iraqi judges in Najaf were able, at least, to claim that nothing in Iraqi laws prevents a woman from being a judge, but according to the constitution, such a claim is invalid since no law should contradict Islamic law.16 But just because a law has been drafted by a lawyer and not a cleric, it is not automatically or necessarily “against Islam.” The constitution is being used to try to replace progressive laws with Sharia law to establish an Islamic republic.

The Third Obstacle: Promoting Sectarianism17

The constitution mentions many rights, but does not mention the most important ones for women: family-related rights such as marriage; the right to choose a partner; and those rights surrounding divorce, custody, and inheritance. Instead, Article 39 states that “Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized according to the law.”

The article does not explicitly state that family laws will be governed by a particular sect, but instead gives Iraqi people a “choice.” The federalism system allows the regions to draft their own family laws as long as they do not contradict the constitution. Since family law is not prescribed at the federal level, each region may draft its own family law based on the majority sect in that region. The result will be more liberal family laws in Kurdistan, where the constitution already states that laws passed there since 1992 will not be changed, while in the south, the family law will be of a strict Shi‘ite version, and in the west, the family law will be more of a strict Sunni version.18

It is important to note that Grand Ayatollah ‘Ali al-Sistani, the most important Shi‘ite cleric in Iraq, did not have any objection to the Iraqi Family Law issued in 1959, nor to the quota system applied under the Transitional Administrative Law issued in 2003. Seeking his support will put the Ministry in a real dilemma because ultimately, Sistani can control the Shi‘ite population only, and in order to avoid applying Sharia law, the Ministry needs to get the approval of the Sunni clergy. Relations between Sunni and Shi‘ite clergy are not amicable in Iraq; they almost always oppose each other, and the Ministry may find itself in the middle of the clergies’ conflicting interests.19

The final outcome will be that different Iraqi women will be subject to different kinds of family laws, making it harder for Iraqi people to marry into other sects, because they will be afraid to be subject to different laws.

Recommendations

The Ministry needs to coordinate the efforts of the local women’s NGOs that are trying to address these issues separately by seeking the support of international NGOs, each with a different, though relevant, agenda.

Short Term

The Ministry needs to call for a national conference inviting all local women’s NGOs to come up with one unified set of national demands20 that would include:

1) Adopting the Family Law that was issued and implemented in 1959 (in the newborn Iraqi republic under ‘Abd al-Karim Qasim) at the federal level so that all Iraqi women receive the same level of protection and are subject to the same law throughout Iraq. The Family Law has been implemented since 1959 based on the most moderate Islamic opinions in terms of women’s rights. The law gives women the right to choose their husbands freely, sets the age of marriage at a minimum of 19 years old, gives women the right to divorce, the right to have child custody, and restricts polygamy. The constitution has not yet entered into force, which allows enough time to adopt the Iraqi Family Law at the federal level.

2) Enforcing the quota system of 25% female representation as a national policy that would apply in governmental agencies and the private sector. This will enable women to practice and exercise their rights enumerated in the constitution.

The Ministry then will have three means, articulated below, by which to exert pressure on the Iraqi Government to accept these demands and implement them

1) Seek the support of the US Embassy. This can have a real influence on the Iraqi government. It is also in the American interest to thwart the building of another Islamic republic in the region; one way to prevent this is to advance women’s rights. One potential negative side effect of this method is that the empowering of women may be perceived as an American demand, rather than an Iraqi demand.21 To counter that effect, the demands should not be addressed in the media or through a mass campaign that would have the byproduct of exposing the cooperation between the Ministry and Embassy. Instead, collaboration should be pursued through political and diplomatic channels and should be accomplished without criticizing Islam.22

I do not recommend this option, because if Iraqi women’s demands become “Americanized,” nothing can be done to reverse this. The issue will not be women’s rights any more — it will be Islam versus the American occupation, which will strengthen the anti-American claims of the Islamic fundamentalists. The risk is too high — if anything went wrong, due to bad decisions made by the American Embassy or for other reasons, Iraqi women would end up paying for it.

2) Seek the support of the UN agencies — UNIFEM in particular — to put pressure on the Iraqi government to adopt Iraqi women’s demands. The UN can have a real influence on the Iraqi government to advance women’s rights, since most rehabilitation project funds come from UN trust funds. The UN may be persuaded to withhold rehabilitation funds until the demands of Iraqis are met. It is in the interest of the UN to advance women’s rights in Iraq as part of its program of social development progress, which the UN mandates. One counter-effect is that the Ministry will look as if it were adding a barrier to the rehabilitation process. To offset that effect, the Ministry should advocate that promoting human rights and women’s rights is of the same level of importance as the rehabilitation process.

The Ministry must create an education campaign in co-operation with UNIFEM to educate women about their rights. The Ministry of Municipalities and Public Works started a gender mainstream in cooperation with UNIFEM employees in 2003. The Ministry of Environment started workshops among women’s NGOs concerning women and the environment. The Ministry of Women’s Affairs needs to meet its mandate or it will become obsolete. The Ministry can start by designing training courses for female employees in all governmental agencies, in cooperation with UNIFEM, to educate women about their rights in general and their rights outlined in the constitution in particular. The Ministry needs to design training courses for the heads of local women’s NGOs, which may promote these ideas among their members.23

3) Seek funding and support at donor’s conferences. The Ministry is represented at the donor’s conferences, during which donors can put real pressure on the Iraqi government to adopt Iraqi women’s demands as a condition for them to donate money to the Iraqi government. It is in the interest of the donors for their money to be used to build a democracy in Iraq, where men and women are equal, not to build a country that will be a base for violence and terrorism with a constitution that promotes sectarianism. In such a state, the donors’ money will used to buy weapons. Instead, the funds should be channeled into a rebuilt Iraq which prizes equality.

I recommend the use of the latter two options, in tandem with one another, in order to increase the magnitude of their pressure.

Long Term

After the security situation has improved, the Ministry needs to seek a constitutional amendment that guarantees women the right to exist and the right to not be subjected to Sharia law. A further stipulation of this amendment should be that the Supreme Court, which oversees the compliance of Iraqi laws with the constitution, consist of non-clerical judges only.

The suggestion to amend the constitution can come from the President, the cabinet, or one fifth of the Parliament members. I recommend seeking the support of the President to suggest the amendment, because Jalal Talabani, the President, is neither Shi‘ite nor Sunni; as a Kurd, he can provide something of a mediating role. Moreover, it is far easier for the Ministry to convince one man rather than for the whole cabinet or one fifth of the Parliament to attempt this task. Indeed, the President has a majority in the Parliament, which will help to ensure that two thirds of the Parliament support the draft amendment and thus that there will be a referendum over the amendment.

Yet, this step can be taken only after raising awareness among women by training female employees in all governmental agencies, in co-operation with UNIFEM, to educate women about their rights in the constitution. The Ministry needs to design training courses for the heads of local women’s NGOs so that they can promote these ideas among their members and the society as a whole so that both women and men will vote in favor of this essential amendment.