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Delivering Modernisation (DoIT publication, Kurdish, 1MB PDF)
Delivering Modernisation (DoIT publication, English, 1,2MB PDF)
 
 
 IRAQ NEWS 
The New York Times 12:31:48 08 Aug. 2005
Some Fear Iraq's Charter Will Erode Women's Rights


BAGHDAD, Iraq, Aug. 7 - Beneath a clackety ceiling fan in a dingy slate-gray room, Judge Esa al-Jubouri of the Karrada family court is about to pronounce Yasir and Isma man and wife. The ceremony, conducted as the families and friends of the bride and groom jam the cramped room behind them, is entirely a civil one, but when the judge squints through his thick glasses at the paperwork, he knows from the language governing the groom's wedding gift that Yasir and Isma are Shiites.

As with all Muslim marriages in Iraq, the nuptial agreement is broadly consistent with Shariah, or Islamic religious law - either the Sunni or Shiite version, depending on the couple's declared sect. And it is the delicate balance of this ceremony, a civil judge administering elements of Shariah, that some Iraqi women fear could be swept away by provisions written into a new draft constitution.

Among the crucial articles that have appeared in various drafts of the constitution is this one: "The followers of any sect or religion have the right to abide by their religion or sect in their personal affairs, and a law should organize this."

By one interpretation, such provisions could create a series of religious courts with authority that would effectively supersede that of civil courts like this one and produce an Iranian-style theocracy. Each individual court, some women fear, would make rulings according to its whim, replacing the set judgments of the existing law - even though those judgments are rooted in Shariah. "It's really a huge setback," said Shirouk al-Abayachi, project manager of the Iraqi Women's Network, an umbrella organization of more than 80 women's groups that was founded in 2003.

"In a state of going forward," she said, referring to Iraq's budding democracy, "we are going backward."

The issue has prompted a series of recent protests and news conferences by the women's groups, including a meeting last Tuesday attended by the American ambassador to Iraq, Zalmay Khalilzad. Generally loath to interfere openly with the Iraqi political process, American officials, including Secretary of State Condoleezza Rice and Mr. Khalilzad, have insisted that the new constitution protect women's rights.

But the ramifications of the ambiguously worded provisions are not yet certain. Current Iraqi law coexists with Shariah and Christian church rulings in a thick undergrowth of judicial institutions and precedents that some legal specialists here say is unlikely to be changed much.

"I don't see any significant difference with the new constitution," said Jaafar Nasser Hussain, a Shiite member of the Supreme Court who received his first appointment as a judge in 1976 and served for a time in a family court in Diyala Province, east of Baghdad. Basic differences among Shiite, Sunni and Christian religious doctrine are reflected in the law, Mr. Hussain said.

For example, Isma, the bride - the judge would not let her and the groom give their last names for publication - is entitled to half her wedding gift before the marriage ceremony and half afterward, whenever she asks for it, because she is a Shiite. A Sunni bride could request the second payment, in this case five million dinars, or about $3,400, only on the death of her husband or after a divorce.

"Yes, I got the sum," Isma told the judge when he asked if the first payment had been made.

"I pronounce you husband and wife according to the agreement between you," the judge said. The women in the group behind them broke into the jarringly high-pitched "La la la la la la la!" of Muslim celebrations and threw candy that landed with a thunk on the judge's desk. He indulgently scooped it up and put it into plastic bags kept on his desk for that purpose.

This family court uses laws put together from some of the more liberal elements of Shariah in 1959, said Hanaa Edwar, secretary of the Iraqi Women's Network. State religious courts existed to help administer the law until it was further liberalized in the late 1970's, Ms. Edwar said.

The family law "is based on Shariah," she said. But because the rules have been unified in civil statutes to be administered by the state, Ms. Edwar said, "there is one court."

"So it means the state law is going to be judged by the state," rather than by an unpredictable collection of separate religious courts, she said. "This is very essential for us."

A Muslim woman has a limited ability to initiate a divorce; she may, for example, claim that her husband is impotent or has abused her. But a man may simply say "I am divorced" three times to his wife to start the legal process. Between two of his rapid-fire marriage ceremonies, Mr. Jubouri asked one man who wanted a divorce if he had said the crucial phrase three times. Standing with his lawyer, the man assured the judge that he had.

Afterward, Mr. Jubouri gruffly explained that the rulings on such routine matters had been clearly written into civil law. "This is an official court, and we are the ones who take care of such things," he said. "So there is no need for any mosque."

But judges do appeal to religious authorities when the rulings are not as clear. In one case during his time on the family court, said Mr. Nasser, the Supreme Court justice, a Christian woman came to him asking for a divorce from a husband who had become mentally ill. As a Muslim, he was not sure whether a Christian church would allow the women to ask for a divorce in such a case.

So Mr. Nasser sent for a ruling from the women's church: she was a Catholic, as it happened, and no divorce was allowed. "In a case like this, we don't issue an order on our own convictions," Mr. Nasser said.

Various drafts of the constitution that have been floated contain half a dozen provisions that women's rights groups and other human rights groups have found worrisome. One declares Islam to be "the main source" of legislation in the country. Another states that the country should "preserve the noble values of the tribes, which coincide with Shariah." The exact wording shifts from draft to draft.

Of greatest concern to the women's groups, though, is an article in a draft of Chapter 2, which covers human rights, that was handed out last week at a news conference led by Sheik Humam Hamoudi, chairman of the constitutional committee. That is the article that would guarantee the followers of any particular sect the freedom to abide, essentially, by their own family laws.

Ms. Edwar said the provision could effectively oblige women to become subject to the narrow religious rulings of whichever cleric happens to be in charge of her local sect. "This will be really very forceful for the women to be under the man," she said, speaking in English.

With four main Sunni sects and countless Shiite sects and subsects, each with slightly different rulings, "there will be chaos," said Amal al-Qadi, a Sunni who is a member of the Iraqi Islamic Party. And in that chaos, she contends, religious courts and the male heads of families will end up making rulings affecting women that now fall to the civil courts.

"We always lose our rights in religious courts," Ms. Qadi said.

Mr. Hamoudi, a sheik himself, denied that the language would extend religious control over civil affairs. "There isn't anything in the constitution to impose religious teachings or religious laws in Iraq," he said.

What seems likely is that nearly a half-century's tradition of intermingling civil and religious affairs will be hard to undo overnight. A framed Koranic verse hanging on the gray wall behind Mr. Jubouri seemed to be keeping watch on his work. "If you judge between people," the verse admonished, "judge fairly."

(HA)


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