Mr. Bell Jar is under a heavy writing deadline, so it looks like I won’t be able to get at a computer to write out all of my thoughts about the draft constitution of Iraq with respect to the status of women anytime soon. Also, I’ve been wanting to see some kind of educated comment on the precise wording of Article 2(1)a in Arabic, since different translations have given it different colorings in English. But I was moved to respond to a comment on a message board stating that Islam is THE source of legislation in the new constitution, that Iraqi women were better off under Saddam, that the constitution does nothing to protect women’s rights, etc. etc., and since it's already all typed up and everything I’ll cut and paste my brief impressions from there and write more later, maybe.
"Islamic law is identified as "a", not "the" source of law in the constitution. You may read why that is an important distinction here.
The full text of Article 2 reads:
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.
The basic rights and freedoms outlined in the constitution include:
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.
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.
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Article (29):
4th -- Violence and abuse in the family, school and society shall be forbidden.
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 honorable human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights.
Honor killing and female genital mutilation are tribal customs that have no basis whatsoever in shari’a law and have always been carried out extrajudicially. Stoning was part of shari’a law, but has been replaced in most Muslim societies (including those which include shari’a law as a source of law at either the constitutional or legislative level, which is nearly all of them except Turkey) with prison terms and fines, along with most other hudud punishments (like cutting the hand off a thief), in the modern era.
Iraq is a signatory to many international human rights documents, including the Universal Declaration of Human Rights and CEDAW; commitment to fulfilling the terms of those agreements is reiterated at various points throughout the full constitution (as is a commitment to ensuring the status and equality of women). It’s true that the amount of weight given to shari’a vs. international human rights standards in judicial review of legislation will be largely determined by the composition of the judiciary (believe it or not, most Islamic scholars do not actually consider the violent oppression of women to be the central demand of their religion, so it does matter who ends up on the court), and the precise method by which the judiciary will be selected has been left to enabling legislation, which makes it hard to predict how easy it would be for more conservative judges to predominate. But the overall thrust of the document itself is very much in the direction of the observation of international human rights standards for women.
If you consider fascism and genocide an appropriate method for improving the status of women, I'm not going to argue that with you. I do note that we wouldn't be having this problem over the matter of women's rights at all if the top-down violent implementation of "modernization," which tended to include some improvements in women's status, had managed to broadly affect social attitudes towards women in Iraq and other Arab fascist secular states. In any event, Saddam decriminalized honor killing in 1999 and was unmistakeably moving in the direction of roll-back on the status of women, as all of the other allegedly secular Arab states were throughout the 90s."
As I said, more later. I do think the explicit intention to subject tribal customs to human rights standards through application of constitutional law is probably the most important provision as a practical matter. We have seen, for example, that ghettoized Muslim communities in European nations with flawless human rights regimes like Great Britain have often managed to nullify the official legal status of girls and women through the threat of honor killing and overwhelming family pressure, and indeed this tends to be the case outside of urban elites throughout the Arab world. The uncertainty about the judiciary is very troubling and may ultimately make a mockery of the term “human rights” in this constitution, but if not this does seem like an opportunity to actually transform the status of women at the social level.