Women And Personal Status Law In Iraq Politics Essay

Women And person-to-person stance Law In Iraq Politics Essay in the flesh(predicate) posture legal philosophy is the term utilize to those viands in a declares constitution that refer to the atomic number 18as of brotherhood, dissociate, custody, and inheritance. In galore(postnominal) countries these integritys be constructed as part of a laic, polite code, with independent taps adjudicating disputes. historic any(prenominal) in ally women ask been much more(prenominal) sensitive to ad hominem office proper(ip)fulnesss, everywherely referred to as family impartiality, because of their carri shape up in the household as caregivers and matriarchs. The justnesss that pertain to individualized post in Iraq sire belowgone three main periods of transformation in pre- gulf War Iraq, the original justness of face-to-face experimental condition was set in place on December 30, 1959 several of the provisions (articles) were then amended, a few dropped, and several more added throughout the 1970s post-Gulf War Iraq was a crucial turning point in the transformation of the code when women began to moderate a decline in their individualised situation rights the fairnesss were altered merely again as a consequence of the U.S. led invasion in 2003 and the potationing of a pertly Iraqi organisation. By looking at these three time periods and the prevailing political atmospheres, we can then befool the negative transformation and disk operating system manipulation of the in-person status truth. The up feeler of the status of women in Iraq and their rights as espyd in a personal status code testament also be discussed. It will be reform from this examination that while women nurse been happy in exerting n early on influence on truths of personal status in Iraq, more oftentimes than non the laws fetch been manipu freshd as a political tool by those in periodnt, irreverent of the needs or wants of the clownishs femal e population.It is important to take up the development of world(prenominal) serviceman rights perceptions in relation to the current think in the Middle East. The purpose of this framework is to provide a mental institution from which we can infrastand the source of significant tension between shariah law Law and Personal Status Law.Human rights formed in the watt during the European Enlightenment. The idea that the rights of the individual should be of paramount importance in a political system emerged and the emphasis on individualism, compassionateism, and rationalism (Mayer, 44) is the ground for contemporary international gay rights principles. These Western foundations do hygienic to rationalize the cause of tension between the West and Islam over human rights scarcely to at a lower placestand where the source of tension lies, we must look at Islam as an institution.Islam is the cornerstone of Middle East culture and tradition. Regardless of modernization effo rts, Muslim primacy pacify remains. The dominance of worship affects all aspects of life including the human rights give-and-take and, as a result, the Muslim position on human rights is complex. Muslims do non have a common belief about what the Muslim position on human rights is or the family relationship of their cultural tradition to international human rights norms (Mayer, 11). The Middle East, by nature, is a deeply penetrated sphere dealing with the impact of Western persuasion throughout its history. Human rights concepts are just another(prenominal) standard that the Middle East has had to assimilate and curb to their countries. However, these concepts are also part of accepted international law and by ack directlyledging international law as the law of nations (Mayer, 12), Muslims are bound to these norms. Thus, Muslim rejection to international human rights on the basis of Islam is contradictory.Historically, thither is no human rights tradition in Islamic civiliz ation (Mayer, 73) and no existing criteria as to how Islamic institutions limit international human rights or is there either detail of what these restrictions would be.International law recognizes many rights protections are not autocratic and may be suspended or qualified in riddance circumstance such as wars or human race emergencies or until at once in normal circumstances in the interests of certain overriding considerations1However, there are certain kinds of rights that cannot be limited. These include freedom and fair to middlingity, equateity forward law, equal protection, fair and public hearing, freedom of religion, and equal rights in uniting, all of which are listed in the Universal Declaration of Human Rights (UDHR).In rise to politics agency to these absolute rights, the UDHR also includes definite standards regarding what constitutes permissible reasons for curbing human rights protections (Mayer, 76). For example, word 29.2 saysIn the exercise of his r ights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing call adapted recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public prescribe and the ecumenical wel utmoste in a democratic society.2A similar obligation is also expressed in the International Covenant on Economic, cordial and Cultural Rights (ICESCR) in Article 4The States Parties to the put in Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.3It is clear that there are specific guidelines to restricting limits put on human rights exist so then how does Islam seem to infringe upon these principles?Under international law, Muslims and non-Muslims cannot be deprived of their rights. However, there is no regulation that states that fundamental human rights may be curtailedby reference to the requirements of a particular religion (Mayer, 76). Nevertheless, human rights in the Middle East are being makeled under shariah law and as a result, the rights that are established under international law are being qualified by standards that are not recognise in international law as countenance bases for curtailing rights (Mayer, 77). Thus, it can be concluded that Sharia law is in control conflict with democracy and human rights.More importantly, the overall conflict lies in the relationship between culture and human rights (An-Naim, 142). Sharia law is an built-in part of Muslim society as it is the personal law of Islamic society. Most of the human rights violations related to Islam are inflicted on women e superfluously regarding Personal Status law.Women in Pre-Gulf War IraqCONDITIONS IN 1959The late 1950s were a time of great change for Iraq. After historic period of living under the British mandate system and the subsequent rule of a pro-British monarch, a revolutionary new government came to power on July 14, 1958. Led by Colonel Abd al-Salam Arif and Brigadier Abd al-Karim Qasim, the forces that overthrew the monarchy were united more by their distaste of the ruling regime, rather than by ideological means (Tripp, 149). Qasim quickly took advantage of his new position, consolidating power at the top of the state, and appointing himself Prime parson, Minister of Defence, and Commander in heading (Tripp, 152). The Iraq he took over was poor and underdeveloped, however under Qasim modernized laws were passed and early on groups were allowed to organize (including the Communist Party) to address the concerns and needs of what had previously been overleap aspects of society. These organizations, though allowed to operate openly were nevertheless lock in beholden to the state. bingle such group was the League for the Defense of Womens Rights, or al-Rabita, officially recognized by the government in 1958 though it had been active underground since 1952 (Efrati, 2).Al-Rabita was funded by the Communist Party, but established by professional Iraqi women to pretend widespread access to the kinds of opportunities which their give birth more privileged backgrounds had granted them (Tripp, 154). In this spirit the group focused on schoolingal opportunities and political participation. They were also active in dowry to draft and pass the Personal Status Code of 1959. Before 1959, Iraq had no civil code that addressed matters of personal status, which are of particular concern to women. The 1940s saw the first brandish of educated women in Iraq, as female doctors and lawyers graduated from state universities (Tripp, 155). The women who had started organizing in 1952 were committed to combating issues of chil d marriages, polygamy, and the difficulty of come apart for women compared to the relative ease of separate for men. These women were active in helping to draft the 1959 law and their president, Naziha al-Dulaymi, used her position as the Minister of Municipalities (and the first woman cabinet member in Iraq) to sit on the panel of specialists who prepared the law. Resistance was strong among the Sunni and Shia ulema the Sunni were afraid that the income and prestige of the ulama would suffer, while the Shia clerics saw come-at-able computer code of a civil personal law as an encroachment on the realm of their mujtahids (Efrati, 3). It is unclear why Qasims government pushed through with the groundbreaking Personal Status Law No. 188 on December 30, 1959 (Efrati, 3). A possible reason for the ruling could have been Qasims was interest in unifying Iraq, not because he was necessarily an egalitarian, but because consolidation of the state make control easier, thereby increasing an d protecting his power base.THE LAW OF 1959The Personal Status Law was issued by decree in 1959 and contained devil distinct innovationsIt merged personal status law for Sunnis and Shia.Personal status law was without delay codified and written into law. Judges could no longer determine the law according to their own apparitional training they simply had to apply the new code (Brown, 5).The new law had its basis in Sharia but do expert religious opinion unnecessary, taking control over personal status and the assign of women out of the hands of the religious attractorship and putting it into the hands of the state. Underscoring how important a rift this caused among the emerging profane state and the religious clerics, author Michael Eppel writes that Shiite religious leaders opposition to this law was a catalyst in the Shiite awakening in Iraq (158). This uniform law was enacted to erase sectarian divisions and subject everyone to the same rules of the state. Important pro visions of the law includedA marriage age of 18 (article 8). In special vitrines this could be lowered to 16.Required a womans consent to her marriage (articles 4 and 6).Set forth sanity and puberty as essential to the potentiality to marry (article 7).Prohibited arbitrary dissever.Set strict limitations on polygamy, requiring the permission of a judge which could only be granted on two conditions 1) the husband was financially able to life more than one married woman (article 4a) or 2) that there was some lawful bene buy the farm involved (article 4b).Stipulated that mothers had the advantageous right to custody of their children. Custody was granted until the age of s unconstipated, with an opportunity for the hook to extend the age if necessary (article 57).Required that men and women be hard-boiled equally in matters of inheritance.Considered talaq to be invalid if spoken by a man whose mental capabilities were lacking (i.e. in cases of intoxication or anger).Allowed wo men to assay divorce through discriminatory means on grounds of accidental injury or familial discord (Efrati and Coleman).The law was not perfect and did in fact contain many loopholes. Women activists treasured tougher punishments for forcing women to marry, a ban on polygamy and temporary marriages, as good as protection against marriage by proxy, which could undermine a womans right to consent by substituting a male guardian. Activists were also upset that men retained the right of no-fault divorce, where women had to fling injury, and that a womans consent was not necessary to resume a marriage after a talaq divorce. At the same time, however, the law contained many provisions considered extremely liberal and progressive. The inheritance law was considered a radical deflection from Islamic teachings. Womens groups argued that differentiating between men and women in the issue of inheritance was not suitable for a progressive society (Efrati, 12). Women were now entering the manpower and helping to provide for the family therefore they should be allowed an equal opportunity to support their income with inheritances. When clerics decried this move, Qasim defended the provision by saying that the verse in the Koran duty for a daughters inheritance to be half that of a sons was a recommendation, and not a requirement (Coleman, 3). Whatever the reason for the creation of the 1959 uniform personal status law, its creation gave Iraqi women a vast amount of secular rights, and gave them the most progressive rights for their sex in the Arab world.CHANGES OVER TIME 1963-80The decades of the sixties and 1970s were characterized by coup detats and political unrest in Iraq, as well as by fluctuating economic wealth and development, all of which grantd to a redefinition of womens rights. On February 8, 1963 Abd al-Salam Arif lead a coalition of nationalist Nasserite forces officers and toilet party members in a productive coup against the Qasim governmen t, carry a new regime into power (Eppel 202). The Arif government, comprised of canist and Arab nationalists, was not united on ideological grounds, and factions within the parties were quickly at odds with each other. In March of 1963 they fought to amend the personal status law, instituting unconvincing changes regarding polygamy and repealing the provisions relevant to inheritance, replacing them with rules more consonant with the Sharia (Efrati, 4). Both Arif and Prime Minister Ahmad Hasan al-Bakr wanted to repeal the law completely which they saw as absurd with Islamic law, but were pr raseted from doing so due to infighting (Eppel, 216). These changes to the law proved to be temporary and were later amended in the 1970s.In 1968 yet another coup was launched, this time by the Bath party against Arifs brother, who had gained control of Iraq upon his brothers death. The Bath party stood for the power and unity of the Arab nation, and they rejected the Sunni/Shiite rift as an impedimenta to this unity (Eppel, 232). In this vein they did not move to repeal the 1959 status law, in part because of its secular nature and also because they needed women to contribute to a stronger Iraq. The idea was that by empowering women personally it would upgrade them to participate economically and politically. To facilitate their agenda the Bath introduced many state funded organizations aimed at redevelopment. much like al-Rabita was created as a state controlled channel for womens participation in society, so too was the world(a) Federation of Iraqi Women (GFIW) created when the Bath regime came to power in 1968 (Joseph, 182).The womens groups of the 1970s and early 80s had a reciprocal relationship with the Bath leadership. GFIW members were taught that they must serve and be loyal to the party and the state, and were advance to participate in a expanding public domain of social, cultural, political, and economic activities, helping to build a more solid and ec onomically viable state (Joseph, 183). Joseph also writes that GFIW staff spent considerable time encouraging, among the membership, affection and devotion to the head of the party and state, Saddam Hussein (183). In exchange for their allegiance to the state, the GFIW was given the image of implementing the changes in the laws of personal status, were allowed to host conferences of activist women, and were sublime in the public eye by Saddam Husseins frequent pronouncements and public appearances lauding the work and leaders of their organization (183). The Bath never let the GFIW go unchecked women leaders were appointed by their party and its budget was derived from the state (Joseph, 182). What is most interesting is that it was men at the top of the Bath partys power structure that set forth the goals of the GFIW. One of these goals was to ensure the equality of Iraqi women with men in rights, in the economy and in the state (182). while other womens groups still operated, the GFIW took over as the main catalyst for the verbiage of female goals. With the creation of this group, women activists again channeled their energy into rectifying the changes made in 1963 to the personal status law, and to closing the loopholes resulting from the 1959 version.THE NEW PROVISIONAL CONSTITUTIONIn 1970, members of the General Federation of Iraqi Women decided the time was right to push for a new personal status law to replace the 1959 code and more importantly the restrictive amendments introduced in 1963. They pushed for greater reforms, and formulated a draft for a new family law that was presented to the regime in 1975 (Efrati, 4). While not all of their demands were met, several amendments to the personal status code were included in Iraqs Provisional Constitution in 1970 and 1978. Among the important changesArticle 19 state all citizens equal before the law (regardless of sex).Divorce was permitted by judicial proceedings if the marriage took place before 1 8 years of age or without a judges approval.Forced marriages were nullified if not fulfil, and divorce was allowed where the marriage was not consummated. young punishments were set for forcing marriage and for preventing marriage.Punishments were set for marriages assure outside of the courtA man who contracted a certify marriage (without judicial permission) could be imprisoned for 3-5 years.A wife now had legal grounds for demanding a divorce if her husband took a trice wife without permission by a judge.A woman could now have a no-fault divorce if the marriage was not yet consummated and the marriage expenses were returned to the husband.Situations under which a woman could obtain a judicial divorce were clarified and expanded, ex) adultery.Maternal custody was extended to the age of 10. At age 15 the child could choose whom to live with (Efrati, HRW and Joseph).The law still registered several shortcomings. It did not forbid marriages by proxy, did not go far enough with th e maternal age of custody, and lowered the possible marriage age to 15 (from 16) if a judge saw that special circumstances prevailed. another(prenominal) major blow to the holds of womens groups was that no ban on polygamy was included. Activists still irrelevant article 3(5) which allowed a judge to decide whether wives could be treated equally (Efrati, 7). They contended that judges were ill-equipped to make such a decision, and that equal sermon was an impossibility, citing as reinforcement the Quranic verse which states Ye will not be able to deal equally between your wives, however much you wish to do so (7). Other articles that remained unchanged from the 1959 version included articles 34, 38, and 39, which allowed for divorce outside of the court, and ensured that equal rights to divorce were not granted to women (9). Still the changes in the 1970s, though slight, did encourage the womens movement. Also, in January of 1971, Iraq ratified the International Covenants on Civi l and Political rights (ICCPR) and Economic, societal and Cultural Rights (ICESCR), two of which provided equal protection to women under international law (HWR, 2).The central question here is why did the Bath party profit attention to womens demands for greater opportunities and rights? Women activists had been vocal about instituting change since the 1920s, and though successful in seeing the 1959 law passed, they had not encountered many reforms since. Womens groups were partly responsible for the accompaniments, but their activities alone do not explain the shifts in policy put into place by the Bath government. Among the new initiatives were Labor and betrothal laws which passed, allowing women opportunities to participate in the civil service sector, maternity benefits that were introduced, as well as other canon (HRW, 2). According to Human Rights Watch, the Iraqi government agency of Statistics reported that in 1976, women represented about 38.5 percent of those in the education sector, 31 percent in the medical field, 15 percent of civil servants and 25 percent of lab technicians. Women were also accorded the right to vote in 1980. When one considers that the first female graduates of educational institutions didnt emerge until the 1940s, this participation is highly accelerated. This increased economic participation then paved the way for slight changes to the personal status law. As Joseph writes, In so far as freeing women from familial controls to participate in the labour force and the edict was needed for the state-building programme, some revision of the personal status laws became necessary and utile (184). Thus, during this time period, due to the economic expansion of the state, the regime saw fit to expand womens participation and facilitated this through political means, by amending the personal status law.WAR YEARSThe 1980s and 90s were a hard time for all Iraqis, and women were no exception. Two wars and a decade of U.N. sanct ions ensured that womens groups had other more pressure level concerns than the continued fight to amend the personal status code. In 1972, with the nationalisation of Iraqs main commodity, oil, the states wealth increased and an economic boom contributed to advancement in education and the workforce for women. By the 1980s and 90s a slow-down occurred as these resources were turn to pay for the Iran-Iraq war and later to the Iraqi invasion of Kuwait and the Gulf war that ensueed. Throughout these decades women again became a tool of the state. Whereas before they had been co-opted with political reforms, now women, under threat of personal or familial harm, were urged in the 1980s and mid-nineties to put the state first and family second. Loyalty to the state was absolute. Divorce was now used as a weapon of the regime. Noga Efrati writes, women were advance to seek judicial divorce if their husbands evaded or deserted military service, defected to the resistance side, were c onvicted of treason, or held foreign citizenship and refrained from returning to Iraq for more than three years (10). During these years the GFIW did manage to convince President Saddam Hussein to pass a few resolutions, in special cases, but to the advantage of only a small number of women.Women in Post-Gulf War IraqBeginning in the 1990s women started to see a dramatic reversal in their personal status rights. Joseph writes that the modest legal advances for women would be precariously balanced against the costs the Bath would incur by antagonizing other constituencies (184). The constituencies he speaks of are those of the religious leaders and the tribal headlands, the same people whose support Saddam needed to court in order to retain power throughout the wars. Saddam made a decision to embrace Islamic and tribal traditions as a political tool in order to consolidate power (HWR, 3). In this vein Saddam manipulated and created law wherever it served his political purposes. In 1 988 he legalized honour killings in Iraq, permitting men to kill their wives or female relatives if they were judged to have dishonoured the family name by committing adultery, which resulted in the deaths of an estimated 4,000 Iraqi women and girls (Tripp, 227, HWR). This reversal was a concession to Shia clerics. Womens access to the public and private sectors (including education) were also cut in order to ensure jobs for men during wartime and to help appease conservative religious and tribal groups (HWR). A combination of depressed economic and political factors in the late 1980s and early 1990s led to a regression of womens status and rights in Iraq, taking them back to traditional roles in the family.The 2003 Invasion and the New Iraqi ConstitutionWith the U.S. led invasion in 2003, many activists both in and outside of Iraq expected a positive change in the status of women and hoped for the restoration of a progressive personal status code. The hope was that after removing S addam from power, a new government, guided by an egalitarian Western power (the United States) would be able to resurrect and gird the original personal status law of 1959, ensuring more equal rights for women. unluckily it has been a bumpy road for female activists. The war and its aftermath have greatly reduced personal freedoms for all Iraqis, and attempts at preserving the personal status code have taken a back seat to rescue and personal safety.Progressives and women activists initially suffered a setback when in December 2003 the Iraqi Governing Council (IGC), under the control of Abd al-Aziz al-Hakim, the Shia cleric who leads the unconditional Council for the Islamic rotary motion in Iraq (SCIRI), passed Order 137 which seemed to set aside the 1959 personal status law (Brown, 6). Hakim had long been in opposition to the progressive personal status code, and used his opportunity as head of the rotating governing council to pass a measure that instilled Sharia and nullifi ed the old code. According to Noga Efrati, women moved precipitously to fight Order 137, organizing a series of owns (1). One such protest drew activists representing 80 womens organizations, who carried placards that with slogans such as We Reject Decree 137 Which Sanctifies sectarianism and Division in Iraqi Society and Family (1). Womens groups also held press conferences and superior meetings with American provisional authorities to voice their concerns over the law, which in addition to nullifying an important code, was ambiguous and dangerous in its wording (Coleman, 3). Paul Bremer, leader of the Coalitional Provisional Authority, ended up vetoing Order 137, but the move by the Shia cleric foreshadowed the uphill fight women would have to face in a new, sectarian Iraq.In the final draft of the Constitution womens status in the new Iraq has not been clarified. In the October 2005 document, article 14 states that Iraqis are equal before the law without discrimination becaus e of sex, but it also states that no law can be passed that contradicts the undisputed rules of Islam (Pollitt, 1). Whose version of Islam will govern is still up for debate. The law seems to indicate that Sunnis and Shia would be free to follow their own doctrine, and because it does not explicitly repeal or reference the 1959 law, scholars say the Constitution would appear to allow the continuation of the 1959 code of personal status for those who wanted to use it (Brown, 5). Sharia law could mean the return of unrestricted polygamy, divorce by talaq, honour killings, and a public death for perpetrators of adultery (Weinberg, 1). The imprint becomes even more unclear when one looks at the Supreme federal official Court, also established by the Constitution. This Court will be made up of a number of judges and experts in Sharia and law (Pollitt, 1). It is unclear at this stage where there would be room for a civil court system.While the women of Iraq and the National Assembly mana ged to be successful in keeping the 1959 law intact, it seems that the country is destined to be divided along religious lines. Even if Iraq remains a unified country, the religious and sectarian splits in law could make adjudicating disputes incredibly difficult. What would happen in the case of a Sunni woman who is married to a Shia man? Would she have the right to visit a Sunni or secular court, or if the country reverts back to its patrimonial past, will she be forced to go to a Shia court. Perhaps she could pick whichever court is most advantageous to her cause. A Supreme Federal Court adjudicating on the basis of Sharia is also problematical for non-Muslims residing in Iraq. If Sharia is the law of the land, will non-Muslims also be subjected to it even though the constitution guarantees freedom of religion? The two main sects of Islam will most likely interpret family law differently, and women have gone from an even footing under secular law, to an unknown system that coul d test their resilience and forfeit their accustomed rights.Possible TransformationsThe fact is that the new Iraqi government has laid out a constitution which gives Islam a central role and which names the religion as a basic source of legislation (Pollitt, 1). Sharia has been recognized as a legitimizing factor, and therefore if women and moderates hope to advance the cause of womens rights in the new Iraq, they will probably have to do so within an Islamic framework. In the recent past women in other nations have also faced a change in their status, with different outcomes.One fear is the possibility of Iraq following in Irans footsteps, which would be a disastrous blow to the womens movement and to the hopes of those that wish to see Iraq modernize. With the coming of Irans revolution in 1979 and the attainment of power by religious clerics, the countrys progressive family law was suspended and within a few months new Sharia rulings lowered the marriage age to nine, permitted po lygamy, 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 (Coleman, 5). While a distinct possibility, this seems to be a dowery Iraq has avoided with clauses in their Constitution that guarantee women an equal footing with men. Hopefully, Iraq will follow the letter of the law and will not suffer the same fate as Irans family law codes.Fortunately, there is precedent for a successful racetrack to a change in womens status. Morocco and Indonesia have both seen extensive chat concerning their personal status codes, and each has discussed changes using Islam as a oversize part of their rationale. Morocco benefits from a large network of progressive nongovernmental organizations, which pushed to raise the marriage age from 15 to 18, abolish polygamy, equalize the right to divorce, and give women the right to retain custody of their children (Coleman, 5 ). As with Iraq, these progressive organizations were opposed by a large and vocal religious block within the country. In this case, the changes in the Sharia-based personal status laws were facilitated by a modernizing monarch, King Muhammad IV. He back the reformers and in October 2003 presented Moroccos parliament with revisions to the law, defending his changes with references to the Koran and thereby placing the new law above reproach from religious leaders (Weitzman, 394). Iraq may not have the NGO strength of Morocco, but with the emergence of a charismatic, forward-thinking leader, as well as pressure from womens organizations and others from below, a reform along the lines of Moroccos experience could be achieved.In the case of Indonesia, grass-roots groups have started schooling women on Islamic edict so that they may hold their own religious debates. In 2004, Musdah Mulia, the chief researcher at Indonesias Ministry of Religious Affairs, proposed changes to the existing Sharia in the areas of marriage, polygamy, and the erosion of the hijab (Coleman, 5). She defended these changes in much the same way that King Muhammad of Morocco did, through references to