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Veil of Anxiety Over Women’s Rights

Shahin Cole is an independent scholar. Juan Cole is professor of modern Middle Eastern and South Asian history at the University of Michigan.

The fate of women in Iraq remains fraught with unknowns. The Fundamental Law just approved by the Iraqi Governing Council, which may serve as a model for the Iraqi constitution, contains important contradictions on matters affecting women. Quite apart from laws on paper, Iraqi women suffer from the devastated condition of the country’s economy, from the stupefying unemployment rate and from an alarming crime wave that includes the kidnapping of girls for ransom. Armed fundamentalist movements on the ground, often hostile to women’s rights, care little for secular laws and constitutions.

Iraqi civil law has been among the more favorable to women’s rights in the Arab world, though social reality often diverges from the ideal. Contrary to many statements by Bush administration officials, it’s not at all clear that women are better off since the Iraq war. The United States appointed few women to the Governing Council and those who were chosen were quickly marginalized by powerful male expatriates, including several U.S.-backed clerics. The U.S. could not even prevent Aqila Hashimi the most experienced of the women, from being gunned down last fall. American attempts to appoint women judges were blocked in the Shiite holy city of Najaf. There are only seven women judges in Iraq.

The women on the Governing Council did achieve one impressive legislative victory at the end of February. They won reversal of a decision, made last December and spearheaded by Shiite cleric and council member Abdelaziz Hakim, that would have abrogated the 1959 uniform civil code for personal-status laws. Hakim and his council allies sought to put Iraqis under the authority of their religious courts with respect to inheritance, marriage, divorce and related matters. Conventional interpretations of Islamic law would give girls, for example, only half the inheritance of their brothers.

The adoption of the new Fundamental Law, or interim constitution, by the Governing Council raised many questions about the future treatment of women. A recently published Arabic draft of the document contains many passages supportive of women’s rights. These paragraphs, however, may conflict with other provisions. The law says that Islam is the official religion and that it is “a fundamental source” of legislation. It also bars laws that would directly contradict the Muslim legal code, or Sharia. The prominence of Islam need not undercut women’s rights, but if the Fundamental Law is interpreted in a fundamentalist or patriarchal way, women could be harmed.

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In most Muslim countries, women are equal to men before the courts, but in a few, a woman’s testimony is worth only half that of a man. A woman raped by a man can’t convincingly testify against him in court, since his version of events outweighs hers. Fundamentalists could attempt to import this principle into Iraqi practice.

Similarly, Muslim fundamentalists often contend that Islamic law requires strict gender segregation, even in higher education. In most Muslim societies, the number of women who pursue law, medicine and other professions is much smaller than that for men. As a result, it’s unlikely that their governments would build separate medical and laws schools for women.

Gender segregation in higher education most often translates into obstacles blocking women from entering the professions. Is a law or regulation allowing coeducation in Iraq contrary to Islamic law or not? The Fundamental Law does not spell out such matters, and it adopts legal principles that are potentially at odds with one another.

On the positive side, the preamble of the most recently published draft of the interim constitution asserts that Iraqis are equal without regard to sex, sect, religion or other considerations. The text explicitly states that where masculine pronouns are used when speaking of rights, women are included. In Afghanistan, the Taliban excluded women from all education, despite the Islamic principle that all believers must seek knowledge, on the ground that the injunction used masculine grammar and applied only to males.

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The Fundamental Law gives victims of discrimination the right to sue for damages. It also opens the door to international legal influence. It says Iraqis enjoy all the rights specified in international treaties and agreements that have been signed by Iraq. The 1948 Universal Declaration of Human Rights, to which Iraq was a signatory, is dedicated to “the equal rights of men and women.”

How such rights are received will depend on who the judge is and on whether there are women judges and women legislators. Women on the Governing Council wanted 40% of parliament’s seats to be set aside for them. They appear to have been given 25%, and even then that percentage was identified as a goal. Women are highly unlikely to win such a high proportion of seats in Iraq by purely political processes. Without sitting women parliamentarians, male fundamentalists may be able to scale back or erase women’s advances in the Fundamental Law.

It is worrying that the scheduled signing of the interim constitution has been delayed because of Shiite objections to provisions dealing with the Kurds and the presidency. When Iraqis write a permanent constitution, these and other issues will be revisited, and at that point the fundamentalists may pull out all the stops to get their way. Will women be well represented in any constituent assembly that drafts a new constitution? There is no guarantee of it.

Rather than the constitution, Iraq’s social realities will more powerfully shape the position and rights of women. At a time of rampant unemployment, men will be first in line for the few available jobs. Many fewer girls are being schooled than boys. Unless the economic and security situations improve rapidly and significantly, women may be impeded from entering middle-class professions or from speaking out powerfully. The death of Governing Council member Hashimi and the silencing of many vocal women by threats from fundamentalist militias demonstrate this principle. Shiite militias in Basra and in parts of east Baghdad enforce veiling of women and harass those who dress in a way they consider too modern. Some middle-class women are already nostalgic for the Baath ideals of the 1970s.

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As women go, so goes Iraq. If they are not permitted to achieve their rights, if they are denied the security and economic conditions that would allow them to flourish, Iraq or at least some of its cities and provinces could deteriorate into a patriarchal theocracy. If women can achieve economic and professional advancement, they will be in a much stronger position to fight the political and legal battles that lie ahead.


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