[I started this awhile ago and just got around to finishing it today. I haven't checked to see if we have a count yet from the voting yesterday. It would be pretty funny if it turned out I spilt this much verbiage on a non-Constitution, wouldn't it? Although as I understand it, the parts I'm writing about aren't really the main issues for those who oppose passage so might not change much in the event of a revision.]
Bearing the cautionary tale of the Iranian Constitutional Revolution of 1906 firmly in mind, (wherein A. Iranians created a secular constitutional monarchy; B. Conservative clerics managed to insert the implementation of Shari’a canon law anyway; C. The Shari’a provision was ignored in practice; D. Iranian women were screwed anyway, since members of parliament were still the same sexist bastards the day after the Revolution as they were the day before), here are my thoughts about what the draft Iraqi Constitution might mean for women. In other words, I am assuming for the purposes of this discussion that the draft Constitution both accurately reflects the collective intent of Iraqis and will actually be enforced more or less in good faith (as opposed to ignored by whatever group manages to seize power in the event, for example, that national security under rule of law deteriorates utterly or is never secured).
The full text of the proposed Constitution is here.
Article (1): The Republic of Iraq is an independent, sovereign nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic.
1st -- Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
2nd -- This constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices.
The Constitution follows the preferred form as outlined in the Rand document (outlining a method for acknowledging the cultural and legal historical influence of Islam while preventing theocracy in a democratizing Muslim state--written in reference to the Afghan constitution, see link in side bar), identifying Islam as "a" rather than "the" basic source of legislation.
So what does "undisputed rules of Islam" mean? Taken literally according to the meaning in English, it would seem to authorize review of legislation only on the most broadly agreed-upon principles of Islam. There are 4 major orthodox schools of jurisprudence in Sunni Islam, and 2 major and many other minor schools of Shia jurisprudence. Very few specific legal issues in shari’a law are "undiputed" between these various legal traditions. In earlier translations of the draft, the locution "essential verities of Islamic law" appeared instead of "undisputed rules." Does this reflect a change in the language in the original, or the vagaries of translation? "Essential verities" could be interpreted as closer to what role democratic reformers want Islam to play in the state, a sort of general legal and cultural background recognizing Islamic beliefs about justice and morality rather than the adoption of some literalist version of Islamic law based inflexibly on one school or the other. Both locutions, in other words, appear to be intended to limit the influence of specific historical legal iterations of shari’a and subject secular legisation to review only against the broadest principles enshrined in shari’a. However, without knowing anything at all about what the original Arabic actually is and might mean in Iraqi or Islamic legal history, I find it difficult to know for sure what the precise wording of Article 2 1a means. It may simply be a formulaic reference to Islamic canon law for example. I had hoped that someone with the appropriate linguistic and legal expertise would have elaborated on this in some public forum or other by now, but unfortunately I haven't come across any such so far.
I'm even more at sea with Article (2) 2nd: I have no idea what it means in practice to "guarantee the Islamic identity of the majority" while also guaranteeing free exercise of religion for non-Muslims. My best guess is that this is meant as a kind of reassurance or substitute for the habitual requirement in most Muslim states that the head of state be a Muslim, which is not stipulated in this constitution. The notion of Muslim headship as a basic requirement for the legitimacy of any person or body seeking to rule over Muslims dates from the earliest years of Islamic civilization (see my brief summary here). It is striking that it is omitted here, and this omission can I think be interpreted as a very positive move towards realizing the kind of nonsectarianism and tolerance for diversity that is spoken of so forcefully in the preamble. Perhaps guaranteeing the Islamic identity of the people is meant as a gesture towards swapping out the Islamic character of the people for that of ruler as the basis of legitimacy? This would be consonant with the articulation of the people (as opposed to God) as the source of authority in the state:
Article (5): The law is sovereign, the people are the source of authority and its legitimacy, which they exercise through direct, secret ballot and its constitutional institutions.
And now is as good a time as any to begin addressing the frequent claim that this Constitution authorizes an "Islamist state." The Islamist position is that God is the only source of legitimacy in a state or its law. Current and former Islamist states have therefore put clergy in charge of all three branches of the state, the judicial, legislative, and executive. (The Islamic Republic of Iran accomplished this end through the creation of the Revolutionary Council, a clerical body which of course has no equivalent in the proposed Iraqi Constitution, and which was given oversight and control of every function of government; I'm not sure that the Taleban ever bothered to commit the details of its rule to paper, but my impression is the structure of government, such as it was, was pretty much akin to rule by military junta). This Constitution includes clergy only in the judicial branch, and even there perhaps not to the exclusion of secular judges. Even if the worst happens, and the judiciary ends up populated exclusively with Sadr clones who willfully ignore all the international human rights norms written into this Constitution in favor of their extremist minority interpretation of Islam, they still would not be able to somehow create from the bench a free-ranging religious police, such as that which exists in Saudi Arabia and other Muslim states, to harass and terrify people in the streets and take up supposed wrongdoers for punishment, nor could they legislate new restrictions, such as not permitting women to leave their homes unaccompanied by a male guardian, as was the case in Afghanistan. A Sadrist judiciary may, in other words, very much want to create all kinds of new "crimes" and execute "apostate" women and religious minorities daily in the public square, but will be powerless to do so without a state apparatus set up to deliver victims to them. It is possible that Iraqis will one day fly in the face of all available public opinion polls about extremist Islam and vote for a legislature and executive that promises to play this bloody role, but in that case something will have gone very badly awry in the whole society. Talebanization cannot somehow arise from "loopholes" in this Constitution, there simply isn't one that would allow clergy under its own power to take over the whole government from the bench.
All of which is not to say that conservative Islamic judges alone can't do women significant harm if they choose; they certainly can. The conservative end of traditional Islam does not deserve to be tarred with the brush of the near-psychotic Taliban, but it disadvantages women plenty nonetheless. The unequal practices of polygamy, in which one man may marry up to four woman, and of divorce (in which a man may divorce his wife unilaterally through a simple oral formulation, whereas a woman must sue in court to divorce her husband, and only then on a few very narrowly defined bases) are comparatively rare but hang like the sword of Damocles over the heads of wives in traditional Muslim societies, and give men tremendous leverage in any marriage, the more so because Islamic law also automatically awards him sole custody of any children (once they reach a certain age, 7 and 9 respectively for boys and girls IIRC) following a divorce, and does not require alimony or any sort of post-divorce support for women of any kind, a significant economic threat in a part of world that does not have many jobs of any kind but particularly not for women, and in which a woman's family may refuse to take her in if her ex-husband is willing to allege that she was unfaithful to him or some such. From this position of power a husband may of course impose any number of restrictions on women in his household regardless of what any civil law says about where they may go and what they may do. There are other ways in which women are disadvantaged in Islamic law, such as a woman being entitled to inherit only a half-share of her parents' property as compared to her brothers, or counting as only half a witness in court, but the hard center of women's oppression in Muslim societies is family law. And some tribal customs regarding marriage, women, and family are even worse, which is why there was such a dispute about whether tribal courts would be formalized in this Constitution. I don't think that it does (reading it over now I'm not positive, see Article 43 2nd quoted below), but in any event, as I noted previously, the Constitution does promise to subject tribal customs to review for conformity with Constitutional principals regarding human rights.
And what are those principles that most affect women?
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion or social or economic status.
In a straightforward reading, this provision would seem to pre-empt the "half-a-witness" rule for women. It also would seem to be intended to identify women as fully included in all of the following rights as articulated, which include:
Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body. [My note: The inclusion of the words "male and female" should not be taken to mean that women are not included in any statements that do not include these words. The locution is very similar to that in the Koran, when Muhammad repetitively says: "O believers, men and women …" and then lists their duties and so forth. Muhammad adopted this formulation after a group of women asked him whether everything he addressed to believers was meant to apply to them, and Muhammad said that indeed it was, and used the "male and female" formulation thereafter for emphasis. It is included here probably for emphasis as well; and of course Article (14) explicitly underlines women's equal status under the law.]
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Article (17): 1st. Each person has the right to personal privacy as long as it does not violate the rights of others or general morality.
Article (20): Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.
Article (22): 1st. Work is a right for all Iraqis in a way that guarantees them a good life.
Article (29): 4th. Violence and abuse in the family, school and society shall be forbidden.
Article (30): 1st. The state guarantees social and health insurance, the basics for a free and honorable life for the individual and the family--especially children and women--and works to protect them from illiteracy, fear and poverty and provides them with housing and the means to rehabilitate and take care of them. This shall be regulated by law.
Article (34): 1st. Education is a main factor for the progress of society and it is a right guaranteed by the state. It is mandatory in the primary school and the state guarantees fighting illiteracy.
2nd. Free education is a right for Iraqis in all its stages.
Article (35): 3rd. Forced labour, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.
Article (43): 2nd. The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honourable human values in a way that contributes to a developing society and it forbids tribal customs that run contrary to human rights.
Article (44): All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution.
Article (45): Restricting or limiting any of the freedoms and liberties stated in this constitution may only happen by, or according to, law and as long as this restriction or limitation does not undermine the essence of the right or freedom.
As you can see, no position is taken in the Constitution on the crucial matter of family law, save the one provision which seems designed to explicitly invalidate the Islamic justification for wife-beating, (Article 29th, 4th, quoted above). And the guarantees about rights to education and work seem to address the assertions made by some that the inclusion of Islamic law in any capacity in the Constitution will prevent women from working without the permission of their husbands or girls going to school and so forth. We may derive some comfort from the references to international human rights treaties, since Iraq is a signatory to both the Universal Declaration of Human Rights and CEDAW, the latter especially since the rights of women within the family are articulated in some detail (though see my earlier caveat).
Many Muslims, including some clergy and Islamic law scholars, have sought and found amelioration for the unequal status of women in traditional Islam from within Islamic law and tradition (and indeed women's rights within marriage are better in some existing orthodox Islamic schools than others), and are working towards an understanding of Islam that will bring it into conformity with international human rights standards including those touching on the status of women. And some quite powerful clerics such as Sistani seem at least willing to bend Islamic practices to meet secular requirements, and to acknowledge the force of secular law and particularly international human rights standards in deliberating about how Muslims should live in "modernity."
The crucial question is, who will end up on the court? Because obviously an ultra-conservative like Sadr would be willing to overturn all human rights guarantees articulated in this Constitution and by reference to international rights treaties by finding them in violation of Article 2 a (despite the clear intention of Article 2 c, that the rights and freedoms outlined in the Constitution, should limit the authority of Islamic law) without batting an eye. (And apparently conservative clerics regard the rights for women implied in Article 44 threatening enough to their agenda to have attempted, unsuccessfully I am pleased to note, to have it excised). Even less radical clerics might jib at apparently privileging those treaties over Islamic law when it comes down to cases.
The constitution stipulates that members of the Iraqi version of the Supreme Court shall be experts in "Islamic law and law," but it leaves the matter of how they shall be chosen to enabling legislation. It would be a rare individual who could combine true expertise in both fields of law; will there be both secular and Islamic judges on this court? Will there be a certain number of seats allotted for each type, and which gets a majority? Or will each seat be filled separately so that you could possibly end up with a heavy clerical majority? Will judges be selected by the legislature, or the president, or what? Will there be a separate council appointed just for this purpose, which would leave the door open to a self-perpetuating aristocracy far removed from the society's beliefs about Islam (as is the case in Iran for example). And indeed any method of selection which does not somehow guarantee that the court will more or less reflect popular rather than extremist interpretations of Islam by allowing the electorate a pretty good amount of influence over selection will be vulnerable to producing an out-of-step court, possibly in a very conservative direction.
And in all truth while most ordinary Muslims do not believe that their religion does or should contradict human rights principles, the majority in the Arab world at least do not actually want full equality for women and so do not seem to interpret personal and family status in terms of human rights at all (see some pretty typical stats here), and to the extent that this Constitution creates a truly democratic body, this hesitation about women's rights will most likely be reflected in its institutions and law one way or another. Articles 17 and 43 2nd go a little way towards articulating an understanding of private, customary practices as public issues subject to process of law, but the existing cultural understanding of what is a public issue and what is a family issue may prevent them from being interpreted to women's advantage. It may be that many improvements in the status of women will have to be articulated explicitly in legislation rather than left for the courts to find in the Constitution.
Which leads us to the greatest weakness of the Constitution in my view (with respect to women at least): the provision which requires that any new piece of legislation be reviewed first by the judiciary before coming into force. This is in fact one of the methods that guarantees clerical domination via the Revolutionary Council of the legislature in Iran (the other is that body's ability to basically pick Parliamentary candidates) and could become a tremendous bar to all kinds of reform if it is allowed to be dominated by conservative clerics.
So in my view, the door is open both to oppression and to freedom for women in this Constitution; a little wider to the latter if it is taken at face value and in good faith by those who are tasked with enforcing it. But with so little information about how the courts will be constituted it is impossible to predict whether it will be interpreted so.
Hrm, I meant to talk about the relationship of honor killing to all of this too, but it's very complicated, and this is long enough already, and I'm tired … Soon, maybe.
Update: I came back to put in a missing link and correct some typos, so I might as well also point out since I forgot to mention it before that the provision guaranteeing 25% of Parliamentary seats to women is still in place in the proposed Constitution--there had been rumors that this would be eliminated.Correction: Actually, Article 44 (“All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution”) was eliminated in the final draft after all. For some reason I had thought that the only major change to the proposed Constitution was in the rule about how it could be amended, so I was working from my printout of the draft published in August in composing this entry. The full text of the draft that was actually voted on October 15th is here (What now appears as Article 44 is just the provision that was previously Article 45.) Looking over the updated draft, I don’t think anything else I highlighted has been changed Amnesty International’s statement deploring the change is here. (Actually, this is how the change came to my attention; I was looking something else up on their site). Their assessment is basically correct, I think. It wasn’t strongly worded enough in the original in my opinion, but obviously it was strong enough to be threatening to fundies; the deletion is a real loss.