Women, Islam, and the New Iraq

Isobel Coleman

From Foreign Affairs, January/February 2006

Summary:  Although questions of implementation remain, the new Iraqi constitution makes Islam the law of the land. This need not mean trouble for Iraq's women, however. Sharia is open to a wide range of interpretations, some quite egalitarian. If Washington still hopes for a liberal order in Iraq, it should start working with progressive Muslim scholars to advance women's rights through religious channels.

ISOBEL COLEMAN is a Senior Fellow and Director of the Women and U.S. Foreign Policy Program at the Council on Foreign Relations.

Women's organizations and moderates across the country quickly mobilized against the new regulation. They held rallies, press conferences, and high-level meetings with the American authorities to make their concerns known. They even gained the support of several moderate Islamic clerics. L. Paul Bremer, the head of the Coalition Provisional Authority, ultimately vetoed the IGC's resolution. But the intentions of Iraq's powerful conservative Shiite leaders -- to broadly assert sharia over a whole range of legal questions -- had been made clear.

MOSQUE AND STATE

This determination was soon directed at a new target: Iraq's constitution. Sharia quickly became one of the most contentious issues facing the drafting committee. Moderate Shiite leaders such as Grand Ayatollah Ali al-Sistani insisted that they did not want to replicate Iran's theocratic system (in which clerics run most aspects of the government). But after years of brutal suppression by Saddam, the Shiites were nonetheless determined to give Islam a central role in Iraq's reconstituted state. In an August 2003 statement, Sistani announced, "The religious constants and the Iraqi people's moral principles and noble social values should be the main pillars of the coming Iraqi constitution."

The Kurds and secular Sunnis were equally adamant about keeping religion out of government. Speaking to a reporter in early 2005, Kurdish leader Jalal Talabani (shortly before he became president of Iraq) insisted, "We will never accept any religious government in Iraq. Never. This is a red line for us. We will never live inside an Islamic Iraq." Maysoon al-Damluji, president of the Iraqi Independent Women's Group, worried that "the interpretation of sharia law will take us backward." But with polls showing that a majority of Iraqis endorsed sharia, there was never really any question of whether Islam would be in the constitution; the real debate was over how much weight to give it.

Secular Iraqi women were marginalized during the drafting process. The composition of the constitutional committee reflected the results of the January 2005 national elections: about half of its 55 members came from the Shiite United Iraqi Alliance (UIA), and another quarter came from the Democratic Patriotic Alliance of Kurdistan. Of the eight women on the committee, five represented the UIA, two were Kurdish representatives, and only one, Dr. Rajaa al-Khuzai, was an independent.

The committee spent months arguing over whether Islam would be the source of legislation for the country (as the religious parties wanted) or a source (a compromise sought by the Kurds and other secularists). The disagreement had not been resolved by the time the original August 15 deadline passed, and the debate spilled over into the extension period. Conservative Shiite leaders remained intransigent and threatened to scuttle talks if Islam did not get a central place in the constitution. As the arguments dragged on, U.S. Ambassador Zalmay Khalilzad finally intervened to avoid a stalemate. To gain concessions in other areas, he supported provisions that strengthened Islam's influence. Ultimately, the Kurds acquiesced too, both because they had other priorities to defend and because they recognized that conservative Shiites were not going to capitulate.

Article 2 of the final version of the constitution makes Islam the official religion of the state, cites it as a basic source of legislation, and says that no law can be passed that contradicts its "undisputed" rulings. Interpreting this provision will fall to the Supreme Court, which the new constitution says may include clerics; their number and method of selection were not specified, but will be defined by a subsequent law that must be approved by a two-thirds majority of parliament.

Secularists and women's advocates are also worried about Article 39, the section dealing with personal-status law. As foreshadowed by the battle in the IGC, Article 39 deems Iraqis "free in their personal status according to their religions, sects, beliefs, or choices," but leaves it up to subsequent legislation to define what this means. If Shiite leaders truly meant for the provision to give Iraqis the freedom of choice -- allowing Shiites to live under Shiite law and Sunnis to live under Sunni law -- then the progressive 1959 code may also be kept on the books for those who want it. Allowing such freedom could lead to a confusing but relatively benign system (not unprecedented in the region), under which Iraqis with legal questions could choose among different codes and court systems -- Sunni, secular, or Shiite -- depending on which they thought would give them the most favorable treatment.

Many secular Iraqis worry, however, that Article 39 will lead instead to an Iranian-style theocracy, which would severely limit women's rights in particular. Adnan Pachachi, the former Iraqi foreign minister and a secular Sunni leader, told The New York Times in August that although he agreed with much of the new constitution, he was troubled by its more overtly Islamic provisions. "They want to inject religion into everything, which is not right," he said. "I cannot imagine that we might have a theocratic regime in Iraq like the one in Iran. That would be a disaster."

Indeed, Iran's theocracy has been a disaster on multiple fronts, including women's rights. In the aftermath of the 1979 revolution, Iran's new government quickly suspended the country's progressive family law, disallowed female judges, and strongly enforced the wearing of the hijab. Within a few months, sharia rulings lowered the marriage age to nine, permitted polygamy, gave fathers the right to decide who their daughters could marry, permitted unilateral divorce for men but not women, and gave fathers sole custody of children in the case of divorce. Over the intervening years, Iranian activists, including some conservative religious women, have managed to soften some of the harshest inequalities. But anything approaching the Iranian system would still represent a major setback for Iraq's women.