Activists Urge Women's Rights in Iraqi Constitution

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MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

MELISSA BLOCK, host:

And I'm Melissa Block.

Iraqis are struggling to complete work on a permanent constitution with just three days to go before the August 15th deadline. And one of the main sticking points is this: What should be the role of Islam and Islamic law in Iraq? Some Iraqis fear that Islamic law, or Shariah, would roll back gains made by women. In 1959, Iraq passed a law that gave women many modern rights.

We're going to get a couple of views on Shariah today, first from Rend al-Rahim. She's executive director of the US-based Iraq Foundation, and she's in Baghdad, working to promote democracy and human rights. She says the question of whether Shariah should be one source or the source of legislation has proven to be a tough one.

Ms. REND AL-RAHIM (Executive Director, Iraq Foundation): This has been a very contentious issue amongst many parties. The largest party in parliament, which is the Iraqi Alliance, which is also dominated by the Shia, wanted Shariah to be the principal source of legislation in Iraq. Many other groups who are more secular or less Islamist wanted a modification and wanted either no mention of Shariah as the basis of law or an attenuated format. Now as far as my understanding goes, negotiations, of course, as you know, are ongoing, and things change by the hour. But the latest that I understand is that there is an agreement to say that Shariah will be a principal source of legislation, not the principal and not a source, but a principle source.

BLOCK: So they seem to have tried to come down somewhere in the middle between those two definitions.

Ms. AL-RAHIM: Correct. Correct.

BLOCK: Let's talk about some of the ways that this can play out in practice and some of the things that people are concerned about. One of the main issues has to do with what are called personal status issues, things like marriage, divorce, child custody, inheritance rights and specifically how those would affect women. What are specific fears that people have? Can you give us a for instance, say, with a case of inheritance?

Ms. AL-RAHIM: In the Sunni canon law, in Sunni Shariah, if a man dies and only has daughters, the daughters get a very small measure of the inheritance, and the bulk of it goes to his male kin. It could be his brother. It could be his nephews and so on. So this is one extremely detrimental factor for women. But also in Shiism and Sunnism, if a man dies and has daughters and sons, then the daughters get half of what the sons receive. This is as far as inheritance goes.

Insofar as custody goes, for example, in the case of divorce, a woman can only keep a son up until the age of nine and a daughter until the age of, I believe, 13, and then they have to go the custody of the father, irrespective of the character of the father, irrespective of why the divorce took place.

BLOCK: That's Rend al-Rahim, executive director of the Iraq Foundation, speaking with us from Baghdad.

Shariah law has been written into the constitutions of other Middle Eastern countries. Clark Lombardi teaches Islamic law at the University of Washington, and he says Shariah was added to those constitutions relatively recently.

Professor CLARK LOMBARDI (University of Washington): Starting in the 1970s and increasing in the 1980s, more and more countries put in clauses into their constitution that specifically dealt with Islamic law. Traditionally, constitutions had said the countries were Islamic countries or that Islam was the official religion. Then what you began to see was a trend towards people saying, `And Islamic law is a source of law' or `the chief source of law' or having a specific provision that would say that no national law can be inconsistent with the Shariah.

BLOCK: Let's look at one case, say the case of Saudi Arabia. How is Shariah implemented in Saudi Arabia's constitution?

Prof. LOMBARDI: Saudi Arabia doesn't even have, formally, a constitution. It has a basic law, and it says that the Koran is, in fact, the ultimate--is the constitution at some level. It's the ultimate source of all laws. That's not the way that most countries in the Middle East or the Islamic world actually operate.

And a better example, and one that Iraq might be looking to, is probably a country like Egypt, which has a code of laws, a secular code of laws that a legislature will enact, and the constitution itself has a provision that says, `Islamic law shall be the chief source of legislation.' The courts have interpreted that to mean that no state law can be inconsistent with Islamic law, and it's the job of the courts regularly to review laws when someone asks them to, and to determine whether that law--let's say a divorce law or a law governing child custody--is inconsistent with the principles of the Islamic Shariah.

BLOCK: And who are the judges on those constitutional courts in Egypt?

Prof. LOMBARDI: Well, in Egypt, the judges are what we might think of as secular-trained judges. They have law degrees, and they have to, to be appointed to the court. If you go to a country like Iran, which is a Shiite country, it's a different sect, but they have a Guardians Council of religious clerics that you do have a secular court system, but you also have a--it's really a supreme court, this Guardian Council, that can strike down laws, and that's staffed entirely by clerics.

BLOCK: Are there places also where those Islamic laws wold butt up against, conflict with international human rights laws, say, and how are those two things reconciled?

Prof. LOMBARDI: Clearly there are countries who interpret Islamic law--Shariah here--in a way that's inconsistent with international human rights norms, particularly relating to the equality of women and sometimes related to children's rights. In those countries, oftentimes when they sign on to an international human rights treaty, let's say to the International Convention on Civil and Political Rights, they'll sign on with a provision that says, `We're signing on with the caveat, with a statement here that we are only agreeing to the provisions of this treaty so long as they do not conflict with our interpretation of Shariah.'

BLOCK: As you watch the Iraqis try to figure out the role of Islamic law in their constitution, what strikes you as the main question that will remain after that constitution is written?

Prof. LOMBARDI: Well, it's interesting. I mean, the constitution--and most constitutions are written to leave room for interpretation and development down the line, and clearly the Iraqi constitution, from all I that understand, is being drafted in exactly this way, so that whatever words the Iraqis choose to put in, whatever sort of formal role they decide to give Shariah in their constitution, there's going to be enormous latitude for judges, particularly on the constitutional court, to further specify what that role is and to interpret what Islamic law should mean for the Iraqi people. And to that extent, it makes sense for people to worry about the words, but the really important thing is going to be--and the really important battle down the line is going to be--for the hearts and minds of the Iraqi judiciary to try and influence their understanding of what Shariah means for the people of Iraq and how they should interpret and apply it.

BLOCK: And who those judges are.

Prof. LOMBARDI: And who those judges are.

BLOCK: Clark Lombardi, thanks very much.

Prof. LOMBARDI: It's my pleasure. Thank you.

BLOCK: Clark Lombardi teaches Islamic law and comparative constitutional law at the University of Washington in Seattle.

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