Iraqi constitution

Full text of the draft constitution.

Islamic law is identified as "a", not "the" source of law in the constitution. You may read why that is an important distinction here.

The full text of Article 2 reads:
1st -- Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

The basic rights and freedoms outlined in the constitution include:

Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.
Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body.
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Article (29):
4th -- Violence and abuse in the family, school and society shall be forbidden.
Article (43):
2nd -- The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honorable human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights.

Honor killing and female genital mutilation are tribal customs that have no basis whatsoever in shari’a law and have always been carried out extrajudicially. Stoning was part of shari’a law, but has been replaced in most Muslim societies (including those which include shari’a law as a source of law at either the constitutional or legislative level, which is nearly all of them except Turkey) with prison terms and fines, along with most other hudud punishments (like cutting the hand off a thief), in the modern era.

Iraq is a signatory to many international human rights documents, including the Universal Declaration of Human Rights and CEDAW; commitment to fulfilling the terms of those agreements is reiterated at various points throughout the full constitution (as is a commitment to ensuring the status and equality of women). It’s true that the amount of weight given to shari’a vs. international human rights standards in judicial review of legislation will be largely determined by the composition of the judiciary (believe it or not, most Islamic scholars do not actually consider the violent oppression of women to be the central demand of their religion, so it does matter who ends up on the court), and the precise method by which the judiciary will be selected has been left to enabling legislation, which makes it hard to predict how easy it would be for more conservative judges to predominate. But the overall thrust of the document itself is very much in the direction of the observation of international human rights standards for women.

If you consider fascism and genocide an appropriate method for improving the status of women, I'm not going to argue that with you. I do note that we wouldn't be having this problem over the matter of women's rights at all if the top-down violent implementation of "modernization" which tended to include some improvements in women's status had managed to actually affect social attitudes towards women in Iraq and other fascist secular states in the Middle East. In any event, Saddam decriminalized honor killing in 1999 and was unmistakeably moving in the direction of roll-back of the status of women, as all of the other allegedly secular Middle Eastern states were throughout the 90s.

If you consider fascism and genocide an appropriate method for improving the status of women, I'm not going to argue that with you.

I'd be happy to get into an actual discussion with you on this topic, but I don't appreciate this sort of snark. If you have been reading my blog all this time and really believe that turning such comments on me are at all justified then having a civil conversation with you is going to be fucking difficult...

You see the constitution as adequate in protecting women. Fine, but I don't.

I am aware that most Islamic scholars aren't about the oppression of women but the weak language (and I consider clauses that allow the undefined "appropriate judicial body" to infringe on a person's right to life, security or freedom a loophole through which conservative clerics or radical Taliban-esque elements could crawl) doesn't reassure me. I also know that FGM and honor killing are tribal customs and not part of true Islamic teaching, BUT sharia is still overwhelmingly the excuse used to justify the practices by those who practice such things.

As for my comments about women being better off under Saddam (which I can only assume to be the catalyst for your "fascism and genocide" snark) I thought I was appropriately clear that I was restricting myself to Iraq prior to 1991, prior to war with the US and UN sanctions and Saddam's increasing paranoia and desperation to hold power. That would also be PRIOR to 1999. In no way do those comments equate to an endorsement of Saddam Hussein, fascism, or genocide, nor should you read into those comments support for his regime nor desire to have him remain in power.

BUT sharia is still overwhelmingly the excuse used to justify the practices by those who practice such things.

But never by any Islamic judge actually sitting on a shari'a court, so far as I know. These are by definition private acts carried out among family members, not the result of any legal decision. There has been a general failure to interfere in tribal honor customs on the part of both secular and Islamic Middle Eastern regimes; the plain meaning of Article 43 is that this will not continue. You might argue that this is unlikely to be effectual, but the inclusion of shari'a as a source of law in Article 2 will have nothing to do with this. Whoever ends up on the court, there really are written traditions of Islamic law, and honor killing and fgm really are not in them.

"Better off under Saddam" isn't supposed to be snarky? I don't really understand how you can approve of the status of women under his regime without approving his method of coercing compliance with it. Since you have clarified, I'm willing to accept that you believe these two things are separable, but I don't agree with that analysis and find it surprising. (The genocidal Anfal campaign against Kurds occured in 1988, btw. Saddam was a fascist genocidal maniac for the duration of his regime, not just after 1991, and Iraq was a fascist state before he took over.)

I'm not sure that we can have a very productive conversation about this anyway. Afghan & Iraqi women are badly off at the moment because they live in war zones. We have yet to see what the quality of life for either will be like under the rule of law as articulated in either constitution, presuming the security situation in either country is ever brought under control. It seems obvious that most people's predictions about this are conditioned by their support or opposition to the war itself.

I really only commented because to my mind the "better off under Saddam" argument is morally nauseating, and I'm not willing to let it go by no matter how good a person I'm supposed to somehow know you are, and the equation of honor killing and fgm to Islam is a form of rank anti-Muslim bigotry that left types have somehow managed to hold aloof from until now, when suddenly it has become a useful talking point to critique the constitution. (It is one thing to recognize that some Arabs justify tribal honor customs by referring to Islam, and quite another to argue that the reference to Islam in the constitution actually enshrines tribal honor customs in some way). I realize that people who should and do know better have been repeating these points ad infinitem, and evidently you have been relying on some of these accounts, and that is too bad. The more centrist these particular arguments becomes among Democrats, the worse off we are as party. "Better off under Saddam" sounds very much like apologism for fascism, whether you intended it to or not.

You are reading things into my comments that are not there. I am not justifying Saddam Hussein or his rule: I am comparing the status of women in Iraq then to now. My point IS NOT that Saddam Hussein was a wonderful guy or a fantastic ruler (and I have gone to pains to say he was NOT): I'm pointing out how far women in Iraq have fallen and commenting on the outrageousness of Iraqi women being better off under the dictatorship in the pre-sanctions era than they are with America's supposed guidance and protection. I am NOT saying "we should go back to the good old days of Saddam" or even that 1970-1990 were "good old days" at all, which seems to be what you're determined to read into my comments. You are reading it in, I am not saying it. "Better off under Saddam" sounds like apologism for fascism if that's what you're trying to hear, and disregarding the very specific context under which those four words were used.

The accusations of anti-Muslim bigotry you assign to me presume I'm drunk on lefty bigot Koolaid. You've missed my point again. I'm not "equating" the barbaric tribal customs with Islam; I repeat: I also know that FGM and honor killing are tribal customs and not part of true Islamic teaching, BUT sharia is still overwhelmingly the excuse used to justify the practices by those who practice such things. I am also not arguing that Islam in the constitution "enshrines" tribal honor customs, I am saying that I see TOO FEW PROTECTIONS against such things in the work of those drafting the Iraqi constitution.

I did not write this post because I'd been listening to lefty pundits and felt a need to parrot back. When you assume that is the case, you read into my comments much I do not feel is there. This is not some new interest for me that I've suddenly taken up because it's a convenient way to criticize the Iraqi constitution, just for the fun of it. For example, I posted a similar rant dealing specifically with Afghanistan (and my perceptions of our failures for women there) in February 2004. I have been speaking out against so-called "female circumcision" since 1994, when I saw the CNN broadcast of the 10-year-old Egyptian girl being circumcised by a "barber" in her house, without anethesia, like it was nothing, while her father held her legs apart and scolded her for moaning in pain! I am not accusing Islam of causing the practice, I'm lamenting what I see as loopholes in the Iraqi constitution that can be used to allow these practices by sufficiently motivated clerical courts and under the auspices of the "general morality" clause. The Christian Science Monitor recently reported that FGM is on the rise in Iraq already; I don't feel my fears for the future are unfounded or based in bigotry.

I live side by side with immigrant Muslim families from all over the middle east and Africa in my neighborhood, we have girls with simple hijab and al-amira style headscarves and young women who wear the chador and niqab. Their families run the gamut from liberal to conservative and still they go to school, ride buses and drive cars, go shopping, use the library, play sports in a modern community. My desire to see America exert its influence so that the Muslim women in Iraq or Afghanistan can have the same freedoms, by insisting on explicit protection from oppression, is absolutely NOT "anti-Muslim".

For fuck sake, I'm my own worst enemy. I specifically did NOT say "better off under Saddam" in my original post, I carefully chose my words and specifically said "worse off now," which more accurately describes my point. My point was NOT that Saddam was doing such a great job but that things now suck pretty bad, even in comparison to life under a fucking crazyass dictator.

However, in my indignation at having to defend myself against the snarky fucking comment that I must then "consider fascism and genocide an appropriate method for improving the status of women" I did NOT choose my words as carefully. "Better off under Saddam" is NOT what I originally said, nor is it what I meant, but it was clearly what Mollpeartree heard and what I ended up discussing anyway.

Yay political fucking discourse and inflamed passions.

I also know that FGM and honor killing are tribal customs and not part of true Islamic teaching, BUT sharia is still overwhelmingly the excuse used to justify the practices by those who practice such things ...

I'm lamenting what I see as loopholes in the Iraqi constitution that can be used to allow these practices by sufficiently motivated clerical courts and under the auspices of the "general morality" clause.

And you believe the court benches will be filled by ignorant peasants rather than qualified Islamic jurists because _____?

And you believe specific injunctions against violence and abuse in the family and articulation of the equal status of Iraqi women as citizens are somehow less powerful in the document than vague references to “general morality” because ______?

I’m not aware of any school of Islamic jurisprudence that approves of honor killing or fgm. The threats to women’s status contained in the ambiguities in the constitution all revolve around family law; polygamy, unequal access to divorce and custody of children, unequal status in family courts, etc. There is quite a range from conservative to liberal jurists and risk enough to women in the event of predominance of conservative judges on these matters. But no collection of any 6 or 9 or however many qualified Islamic jurists is going to yield an opinion in favor of honor killing and fgm. They are extralegal. The prevalence of honor killing and fgm in Arab countries is related to history and culture rather than to the status of Islamic law in formal government institutions.

I do credit you with understanding that Saddam was a terrible man. But the reality is, Arab culture has been deeply misogynistic for a very long time, and modernization efforts which took up improvements in the status of women were able to do so rapidly only within the context of repressive state structures that silenced and punished dissent and disapproval of forced “Westernization.” It is actually the norm rather than a surprise that fascist secular governments in the Middle East generally have created a better formal status for women than the less repressive but also more traditional constitutional monarchies like Morocco and Jordan. Or rather, they had; undoing improvements in women’s status have been the cheapest and easiest sacrifice for Arab dictators to make to appease the Islamist backlash, and they have been doing so for the last 20 years, including Saddam. I tend to judge comparisons between Saddam’s Iraq and the current situation by what they actually mean with reference to this reality. As I said, I do believe that you feel you are able to consider the status of women Iraq separate from the regime that garanteed it, I just don’t feel that this is a particularly useful or legitimate way of looking at it myself.

FWIW I was pretty careful not to accuse you personally of bigotry.