Draft Iraqi charter backs Islamic law
By Edward Wong The New York Times
WEDNESDAY, JULY 20, 2005
BAGHDAD A working draft of a chapter of the new Iraq constitution has
language that gives a strong role to Islamic law and could be used to curb
women's rights, particularly in personal matters like divorce and family
inheritance.
The document's writers are also debating whether to drop a measure
enshrined in the interim constitution, co-written last year by the Americans,
that requires at least a quarter of the Parliament to be made up of women.
That clause helped establish the current Parliament as among the most
progressive in the region, at least in regard to the proportion of female
members.
If it holds, the shift away from the more secular and equitable language
of the interim constitution would represent a victory for Shiite clerics and
religious politicians, who now wield enormous power and had chafed at the
influence exercised by the Americans over that earlier document.
The Americans had insisted that Islam be designated as just "a source" of
legislation, for example. Several writers of the new constitution say they
intend to, at the very least, designate Islam as "a main source" of
legislation.
One clause in the chapter draft obtained by The New York Times on Tuesday
says that the government guarantees equal rights for women, as long as those
rights do not "violate Shariah," or Koranic law.
The Americans and secular Iraqis had kept religious language like that
from ever appearing in the interim constitution.
The chapter draft of the new constitution has been circulating discreetly
in recent days and is already igniting outrage among women's groups, who held a
protest on Tuesday morning in downtown Baghdad, at the very square where a
statue of Saddam Hussein was pulled down by American soldiers and Iraqis in
April 2004.
About 200 women and men showed up in the fiery heat to hand out fliers
and wave white banners in a throng of traffic. "We want to be equal to
everybody; we want human rights for everybody," read one slogan.
The demonstration came hours before two Sunni Arabs involved in writing
the constitution were assassinated, further throwing the drafting process into
turmoil.
"We want a guarantee of women's rights in the new constitution," Hannah
Edwar, an organizer of the protest, said.
"We're going to meet with the constitutional committee and make our
thoughts known."
American and Iraqi officials say that several drafts of chapters of the
constitution are floating around Baghdad, and that no language has been
finalized yet.
Changes could be still be made before Aug. 15, the deadline for the
National Assembly to approve a draft.
Furthermore, protests by women and more secular blocs on the
constitutional committee, such as the Kurds, could force the religious Shiites
to tone the language.
"Some of the points regarding women's rights in this chapter are still to
be reviewed," Miriam Arayess, a devout Shiite member of the drafting committee,
said when presented with the leaked draft of the constitution's second chapter,
which is entitled "Rights, Duties, Liberties - Public and Private."
Arayess said she believed the draft was the most recent working version,
and that it has fairly generous provisions for equal rights. She is one of
about 10 women on the 71-member drafting committee.
The chapter has 27 articles, most of which have relatively liberal
language aimed at ensuring various civil rights. The first article says that
"all Iraqis are equal before the law" and that "equal opportunities are
guaranteed for all citizens according to the law." The final article forbids
censorship of the press.
References to Shariah occur a couple of times. One clause says that
Iraqis will enjoy all rights stated in "international treaties and conventions
as long as they do not contradict Islam."
Such language is accepted by many Iraqis, including moderate ones, who
say that Islam is a vital foundation for the country. But women's groups are
incensed over article 14, which says that "personal status law is to be
organized by the law according to the religion and sect of the citizen."
That means in matters such as marriage, divorce and family inheritance,
people will be governed by the religious codes of their individual religions.
Shiite families will follow Shiite interpretations of Shariah, for example,
while Sunnis will follow Sunni interpretations.
This article would repeal a relatively liberal personal status law
enacted in 1959, after the British-backed monarchy was overthrown by secular
military officers. That law remained in effect through the decades of Saddam
Hussein's rule. The law used Shariah to adjudicate personal and family matters,
but did it in as secular a manner as possible - it pulled together the most
liberal interpretations of Koranic law from the main Shiite school and the four
main Sunni sects and cobbled them together into one code.
For decades, it was considered one of the most progressive personal
status laws in the Middle East, in terms of women's rights. For example, a
Sunni interpretation of Shariah says that a man can divorce his wife simply by
stating his intent three times in front of her.
The Shiites have a higher bar - the man and his wife must appear before a
judge. Under the 1959 law, still in effect, all Iraqis have to follow the
Shiite rules for arranging a divorce.
The right to marry is another example. One Sunni sect allows adult women
to marry without having to get the approval of her parents or guardians. The
Shiites do not permit this, but all Iraqis have to follow the more liberal
Sunni interpretation.
The new language in the working draft of the constitution changes all
that by requiring cases to be judged according to the family's sect or
religion. Such legislation could also deepen the sectarian divide in Iraq, at a
time when tensions and violence between Sunnis and Shiites are on the rise.
The draft also does not make clear what happens in the cases of mixed
families, where the husband is from one sect and the wife from another.
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