New York Times
July 20, 2005
BAGHDAD, Iraq, July 19 - A working draft of Iraq's new constitution would cede a strong role to Islamic law and could sharply curb women's rights, particularly in personal matters like divorce and family inheritance.
The document's writers are also debating whether to drop or phase out a measure enshrined in the interim constitution, co-written last year by the Americans, requiring that women make up at least a quarter of the parliament.
The draft of a chapter of the new constitution obtained by The New York Times on Tuesday guarantees equal rights for women as long as those rights do not "violate Shariah," or Koranic law.
The Americans and secular Iraqis banished such explicit references to religious law from the interim constitution adopted early last year.
The draft chapter, circulated discreetly in recent days, has ignited outrage among women's groups, which held a protest on Tuesday morning in downtown Baghdad at the square where a statue of Saddam Hussein was pulled down by American marines in April 2003.
One of the critical passages is in Article 14 of the chapter, a sweeping measure that would require court cases dealing with matters like marriage, divorce and inheritance to be judged according to the law practiced by the family's sect or religion.
Under that measure, Shiite women in Iraq, no matter what their age, generally could not marry without their families' permission. Under some interpretations of Shariah, men could attain a divorce simply by stating their intention three times in their wives' presence.
Article 14 would replace a body of Iraqi law that has for decades been considered one of the most progressive in the Middle East in protecting the rights of women, giving them the freedom to choose a husband and requiring divorce cases to be decided by a judge.
If adopted, the shift away from the more secular and egalitarian provisions of the interim constitution would be a major victory for Shiite clerics and religious politicians, who chafed at the Americans' insistence that Islam be designated in the interim constitution as just "a source" of legislation. Several writers of the new constitution say they intend, at the very least, to designate Islam as "a main source" of legislation.
By rough count, nearly 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 fatally shot near a Baghdad restaurant, threatening to throw the drafting process into turmoil.
"We want a guarantee of women's rights in the new constitution," said Hannah Edwar, an organizer of the protest. "We're going to meet with the constitutional committee and make our thoughts known."
A dozen women, some sheathed in full-length black robes, showed up to denounce Ms. Edwar's protest. They said they were followers of Moktada al-Sadr, the fundamentalist Shiite cleric who has led two rebellions against the Americans.
American and Iraqi officials say that several draft chapters of the constitution are floating around Baghdad and that no final language has been agreed on. Changes can still be made before Aug. 15, the deadline for the National Assembly to approve a draft. Protests by women and relatively secular blocs on the constitutional committee, like the Kurds, may force Shiite members to tone down the religious language.
"Some of the points regarding women's rights in this chapter are still to be reviewed," said Mariam Arayess, a religious Shiite on the committee.
Ms. Arayess said she believed that the draft was the most recent working version, and that it had fairly generous provisions for equal rights. She is one of fewer than 10 women on the 71-member drafting committee.
The chapter has 27 articles, most of which have relatively liberal provisions aimed at ensuring various civil rights. The first 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 Islam and Shariah appear in a few places. One clause says 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 moderates, who say Islam is a vital foundation for the country.
But women's groups are incensed by Article 14, which 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 Mr. Hussein's rule.
The law used Shariah to adjudicate personal and family matters, but did it in as secular a manner as possible, pulling together the most liberal interpretations of Koranic law from the main Shiite and Sunni sects and stitching them together into one code.
Critics of the draft proposal say that in addition to restricting women's rights, it could also deepen the sectarian divide between Sunnis and Shiites. The draft also does not make clear what would happen in cases where the husband is from one sect and the wife from another.
Religious Shiite politicians tried once before, in December 2003, to abolish the 1959 law. As is happening now, women's groups and secular female politicians took to the streets.
Faced with the mini-rebellion, L. Paul Bremer III, then the effective American proconsul of Iraq, rebuffed the move, to the anger and dismay of many religious Shiites.
"We don't want to use separate Sunni or Shiite laws," said Dohar Rouhi, president of the Association of Women Entrepreneurs. "We want a law that can be applied to everyone. We want justice for women."
A Westerner familiar with the writing of the constitution said that when he saw a draft of the civil rights section less than a week ago, it did not contain the sweeping language on personal status law. In that version, he said, most measures - even those citing Shariah - were not as severe as they could have been.
"Compared to what some of the conservative Shiites were pushing, the glass is half full," said the Westerner, who would speak only on condition of anonymity, because he did not want to appear to be interfering in a sovereign Iraqi process.
He said there was some cause for alarm, though, pointing to a proposal to phase out a measure in the interim constitution requiring that a quarter of parliamentary seats go to women.
Ms. Arayess, the Shiite drafter, said some of the writers were considering keeping the quota for the next two terms of the parliament before allowing it to lapse. After that, she said, women should be able to stand on their own.