The Sharia Problem

This column was written by Asra Nomani.

The new constitution may seem at first glance promising — explicitly insuring "gender rights" and setting a target that "aims" to have 25 percent of the seats in Iraq's new parliament, the Council of Representatives, filled by women.

The constitution seems progressive — even poetic — for its inclusion of women in language, like the kind found later in the preamble: "We the people of Iraq who have just risen from our stumble, and who are looking with confidence to the future through a republican, federal, democratic, pluralistic system, have resolved with the determination of our men, women, the elderly and youth, to respect the rules of law." Later, Article 14 stipulates: "Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status."

In addition, the constitution grants women the right to vote and political participation (Article 20), protection from sex trafficking (Article 35), and "the protection of motherhood" (Article 29). It guarantees "the individual and the family, especially children and women," "social and health security and the basic requirements for leading a free and dignified life," including "a suitable income" and "appropriate housing" (Article 30). Amazingly, Article 35 also includes an important protection, "The State guarantees the protection of the individual from intellectual, political and religious coercion," echoing a proclamation in the Qur'an (2:256), "There is no compulsion in religion."

But it also leaves the door open for far-right clerics, both Sunni and Shiite, to band together on something about which they seem to agree: controlling women by making a strict interpretation of Islam the law of the land, which would threaten to revoke parts or all of the 1959 Iraqi Law of Personal Status (considered some of the most progressive family law in the Middle East).

In seemingly innocuous language, the constitution is in fact a nightmare for women. Article 2, for example, is a self-fulfilling prophecy for disaster: "First: Islam is the official religion of the State, and it is a fundamental source of legislation." The notion of Islamic law in legislation wouldn't be so frightening if the new leaders of Iraq could be trusted to rise to the highest principles of social justice and women's rights in Islam, but they can't — particularly considering the pressures exerted on them by militant and extremist political forces both on the Sunni and Shiite sides who seek to make Iraq a model Islamic state in the vision of Saudi Arabia, Taliban Afghanistan, and Iran.

Making Islam "a" fundamental source of the constitution is supposed to be a victory for Americans and secular Iraqis who bristled when the first draft of the constitution made Islam "the" fundamental source, but it's a hollow victory. It's just semantics that will allow the dogmatic conservative lobby to impose their narrow interpretation of Islamic law on women's rights. The future of women's rights in marriage, child custody disputes, inheritance, divorce, attire, and public office will be determined by a tug of war in which far-right theologians, clerics and politicians will most likely be the most powerful and intimidating.

The most alarming part of the constitution for women's rights follows in another provision in Article 2: "No law that contradicts the established provisions of Islam may be established." "Established provisions" reflect a euphemism that the Islamic religious establishment can use to codify conservative and puritanical interpretations of Islam that are nothing less than man-made rules – not "divine law," as they try to argue.

It's an "established provision" from Iran to certain villages in India that forces women to cover their hair with scarves and cloak their bodies with gowns. It is an "established provision" from certain provinces in Nigeria to Saudi Arabia that adultery is punishable by being stoned to death, a penalty most often meted out against women. It is an "established provision" from Pakistan to Algeria that two women equal one man as a witness, even at marriage ceremonies. And, from accounts on the ground in Iraq, it's becoming an "established provision" that women can't wear makeup, perfume or pants — not to mention work outside of the home or travel without a chaperone.

The constitution rhetorically provides for gender equality and women's rights. Article 2 (Section B) says: "No law that contradicts the principles of democracy may be established." And, in another place in Article 2 (Section C), it offers: "No law that contradicts the rights and basic freedoms stipulated in this constitution may be established."

But, ultimately, Article 2 leaves room for Islamically mandated inequality to trump women's rights. The prevailing schools of Islamic sharia, for instance, have as one of their "established provisions" the notion that daughters receive less inheritance than sons, theologically justifying such a system. In a logic that denies women independence and self-determination, women are "maintained" by men. Article 29 stipulates, "All forms of violence and abuse in the family, school and society shall be prohibited," but what about "established provisions" of sharia that interpret a verse of the Qur'an (Chapter 4, Verse 34) to allow men to "beat" disobedient wives? A growing movement called Islamic feminism challenges many of these interpretations but it hasn't yet taken root in the mainstream Islamic establishment.

The London-based Organisation for Women's Freedom in Iraq protested the draft constitution this past July for " legalizing women's discrimination." This year, it is issuing a call to action for International Women's Day: "Make it a day to say No! To Islamic Sharia law in Iraq! For secularism, equality and freedom!" This past August, Women Living Under Muslim Law, a London-based international consortium of Muslim women's rights groups, issued an action alert to protest the constitution.

"America was shamed for what they installed in Iraq — a government that made Iraq a sharia state," says Houzan Mahmoud, the director of the United Kingdom branch of the Organization for Women's Freedom in Iraq. "They went back and made the language pretty, but we still have a constitution that makes Iraq an Islamic sharia state. The constitution is about institutionalizing the oppression of women."

Article 89 provides a prelude of just how nefarious the influence could be. It states, "The Federal Supreme Court shall be made up of number of judges, and experts in Islamic jurisprudence and law experts . . ." Those "experts" — mostly conservative and rigid — will be able to codify interpretations of Islam that deny women their rights. There is one group clearly set to lose in the new Iraq: the daughters of Eve.

Asra Q. Nomani is a former reporter for the Wall Street Journal and the author of "Standing Alone: An American Woman's Struggle for the Soul of Islam."

By Asra Nomani
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved