THE IMPACT OF SHARIA
Article 14 of Iraq's new constitution, approved in a nationwide referendum held on October 15, states that Iraqis are equal before the law "without discrimination because of sex." Yet the constitution also states that no law can be passed that contradicts the "established rulings" of Islam. For this reason, the new document has been condemned by critics both inside and outside Iraq as a fundamental setback for a majority of Iraq's population -- namely, its women. According to Isam al-Khafaji, an Iraqi scholar, the document "could easily deprive women of their rights." Yanar Muhammad, a leading secular activist and the head of the Organization of Women's Freedom in Iraq, worries that the Islamic provision will turn the country "into an Afghanistan under the Taliban, where oppression and discrimination of women is institutionalized."
These criticisms are not without merit, and the ambiguity of the new constitution is a cause for concern. The centrality of Islamic law in the document, however, does not necessarily mean trouble for Iraqi women. In fact, sharia is open to a wide range of understanding, and across the Islamic world today, progressive Muslims are seeking to reinterpret its rules to accommodate a modern role for women.
Iraq's constitution does not specify who will decide which version of Islam will prevail in the country's new legal system. But the battle has already begun. Victory by the progressives would have positive implications for all aspects of the future of Iraq, since women's rights are critical to democratic consolidation in transitional and war-torn societies. Allowing a full social, political, and economic role for women in Iraq would help ensure its transition to a stable democracy. Success for women in Iraq would also reverberate throughout the broader Muslim world. In every country where sharia is enforced, women's rights have become a divisive issue, and the balance struck between tradition and equality in Iraq will influence these other debates.
In many Islamic countries, reformers have largely abandoned attempts to replace sharia with secular law, a route that has proved mostly futile. Instead, they are trying to promote women's rights within an Islamic framework. This approach seems more likely to succeed, since it fights theology with theology -- a natural strategy in countries with conservative populations and where religious authority is hard to challenge. Now that the United States has helped midwife an Islamic state in Iraq, U.S. officials would, for similar reasons, be wise to move beyond their largely secular interlocutors. If Washington still hopes to create a relatively liberal regime in Iraq, it must start working with progressive religious Muslims to advance the role of women through religious channels.
RETHINKING THE LAW
Sharia is the body of Islamic law that was developed by religious scholars (ulama) after the death of the Prophet Muhammad. Meant to provide moral and legal guidance to Muslims, sharia is based on the Koran and the Sunna (the recorded traditions or customs of the Prophet). The Koran has about 80 verses concerning legal issues, many of which refer to the role of women in society and to important family issues, such as marriage, divorce, and inheritance.
Because neither the Koran nor the Sunna cover most day-to-day issues, however, after the death of the Prophet the ulama created other means for addressing them. As a last measure, qualified legal scholars could study a question, apply independent reasoning (ijtihad), and issue a nonbinding fatwa. In the eleventh century, however, to consolidate their control, the Sunni ulama crystallized their legal judgments into various schools of Islamic jurisprudence and banned ijtihad. With the gates of independent interpretation closed, the traditionalists imposed their own conservative positions on mainstream Islamic jurisprudence, and these have remained largely frozen for almost a millennium.
Some scholars, however, have continued to search for Islamic answers to the questions of modern life. Contrary to the claims of secularists who deny the compatibility of Islam and modern notions of women's rights, Islamic attitudes on the question actually vary quite widely. According to "Islamic feminists," Islam is actually a very progressive religion for women, was radically egalitarian for its time, and remains so in some of its Scriptures. They contend that Islamic law has evolved in ways that are inimical to gender equality not because it clearly pointed in that direction, but because of selective interpretation by patriarchal leaders and a mingling of Islamic teachings with tribal customs and traditions. Islamic feminists now seek to revive the equality bestowed on women in the religion's early years by rereading the Koran, putting the Scriptures in context, and disentangling them from tribal practices.
Among the pioneers of Islamic feminism are the Moroccan writer Fatema Mernissi and the Pakistani scholar Riffat Hassan -- although neither is entirely comfortable with the label. In fact, many religious progressives prefer to distance themselves from the term "feminism" and the Western cultural baggage it brings. These scholars simply see themselves as Muslims pursuing rights for women within an Islamic discourse. Their movement already spans the globe, is growing, and is increasingly innovative. Many of its leading lights are actually men, distinguished Islamic scholars such as Hussein Muhammad in Indonesia, whose high status gives them particular credibility.
The Islamic feminists tend to focus their work on the sensitive area of family law, since it is the area of jurisprudence that has the greatest impact on women's daily lives -- and since it also leaves much room for interpretation. Take, for example, the Koran's stipulations on inheritance. One contested verse states that on her parents' death, a daughter should receive half of what her brother inherits. Progressives, however, point out that at the time of the Prophet, giving a woman any inheritance was a radical departure from Arab practice. (Indeed, it was a radical notion in much of the West as well until the twentieth century.) The progressives also note that the rule made sense in traditional Islamic societies, where women had no financial obligations, only financial rights. But today, they argue, when many Muslim women do earn a living and men do not always provide the necessary support, it is important to adapt the law to changing circumstances.
The Koran, like the Bible, also includes many multilayered, seemingly contradictory passages, and Islamic feminists tend to emphasize different verses than the traditionalists. On the sensitive subject of polygamy, for example, one verse of the Koran says, "Marry those women who are lawful for you, up to two, three, or four, but only if you can treat them all equally." Later in the same chapter, however, the Koran reads, "No matter how you try you will never be able to treat your wives equally." Many Muslim scholars today read the two verses together, as an effective endorsement of monogamy. Many tribal communities, on the other hand, focus on the former verse alone and cite it as a justification for having multiple wives.
The rules on veiling are similarly inconclusive. Progressive Muslims point out that nowhere does the Koran actually require the veiling of all Muslim women. Veiling was simply a custom in pre-Islamic Arabia, where the hijab was considered a status symbol (after all, only women who did not have to work in the fields had the luxury of wearing a veil). When the Koran mentions veils, it is in reference to Muhammad's wives. The "hijab verse" reads, "Believers, do not enter the Prophet's house ... unless asked. And if you are invited ... do not linger. And when you ask something from the Prophet's wives, do so from behind a hijab. This will assure the purity of your hearts as well as theirs." In the Prophet's lifetime, all believers (men and women) were encouraged to be modest. But the veil did not become widespread for several generations -- until conservatives became ascendant.
What all this suggests for Iraq is that sharia is not inherently inimical to women's rights. It also suggests that the question of who gets to interpret sharia is critical -- especially on areas such as gender equality, where the letter of the law is vague.
For nearly 50 years, Iraq's personal-status law provided women with some of the broadest legal rights in the region. The law, enacted in 1959, included several progressive provisions loosely derived from various schools of Islamic jurisprudence. It set the marriage age at 18 and prohibited arbitrary divorce. It also restricted polygamy, making that practice almost impossible (the code required men seeking a second wife to get judicial permission, which would only be granted if the judge believed the man could treat both wives equally). And it required that men and women be treated equally for purposes of inheritance. When he was challenged by clerics over this provision, Abdul Karim Kassem, the Iraqi prime minister at the time, responded that the verse in the Koran calling for a daughter's inheritance to be half that of a son's was only a recommendation, not a commandment.
Religious scholars were unhappy with the code from the beginning, largely because it imposed a unified standard on Iraq's population without allowing for the differences among its various religious sects. Shiite clerics, in particular, viewed it as another aspect of unwanted Sunni oppression. But the legislation played an important role in modernizing the role of women in Iraqi society. Under secular, albeit brutal, Baathist rule, Iraqi women made significant advances in numerous areas, including education and employment.
With the overthrow of Saddam Hussein in March 2003, Shiite leaders quickly made clear that they expected the new Iraq to be an Islamic state. One of their first priorities was to try to annul the personal-status law. In December 2003, a conservative contingent on the U.S.-appointed Iraqi Governing Council (IGC) voted behind closed doors for Resolution 137, which canceled Iraq's existing family laws and placed such issues under the rules of sharia. Abdul Aziz al-Hakim, the Shiite leader of the powerful Supreme Council for the Islamic Revolution in Iraq (SCIRI), held the rotating chairmanship of the IGC at the time of the vote.
Resolution 137 was worryingly vague about exactly what form of Islamic regulation would replace the old legislation, although the decree seemed to imply that each Islamic community would be free to impose its own rules on issues such as marriage, divorce, and other important family matters. This ambiguity worried not only women's groups, but also those who feared that such an Islamic free-for-all would exacerbate sectarian tensions.
Women's organizations and moderates across the country quickly mobilized against the new regulation. They held rallies, press conferences, and high-level meetings with the American authorities to make their concerns known. They even gained the support of several moderate Islamic clerics. L. Paul Bremer, the head of the Coalition Provisional Authority, ultimately vetoed the IGC's resolution. But the intentions of Iraq's powerful conservative Shiite leaders -- to broadly assert sharia over a whole range of legal questions -- had been made clear.
MOSQUE AND STATE
This determination was soon directed at a new target: Iraq's constitution. Sharia quickly became one of the most contentious issues facing the drafting committee. Moderate Shiite leaders such as Grand Ayatollah Ali al-Sistani insisted that they did not want to replicate Iran's theocratic system (in which clerics run most aspects of the government). But after years of brutal suppression by Saddam, the Shiites were nonetheless determined to give Islam a central role in Iraq's reconstituted state. In an August 2003 statement, Sistani announced, "The religious constants and the Iraqi people's moral principles and noble social values should be the main pillars of the coming Iraqi constitution."
The Kurds and secular Sunnis were equally adamant about keeping religion out of government. Speaking to a reporter in early 2005, Kurdish leader Jalal Talabani (shortly before he became president of Iraq) insisted, "We will never accept any religious government in Iraq. Never. This is a red line for us. We will never live inside an Islamic Iraq." Maysoon al-Damluji, president of the Iraqi Independent Women's Group, worried that "the interpretation of sharia law will take us backward." But with polls showing that a majority of Iraqis endorsed sharia, there was never really any question of whether Islam would be in the constitution; the real debate was over how much weight to give it.
Secular Iraqi women were marginalized during the drafting process. The composition of the constitutional committee reflected the results of the January 2005 national elections: about half of its 55 members came from the Shiite United Iraqi Alliance (UIA), and another quarter came from the Democratic Patriotic Alliance of Kurdistan. Of the eight women on the committee, five represented the UIA, two were Kurdish representatives, and only one, Dr. Rajaa al-Khuzai, was an independent.
The committee spent months arguing over whether Islam would be the source of legislation for the country (as the religious parties wanted) or a source (a compromise sought by the Kurds and other secularists). The disagreement had not been resolved by the time the original August 15 deadline passed, and the debate spilled over into the extension period. Conservative Shiite leaders remained intransigent and threatened to scuttle talks if Islam did not get a central place in the constitution. As the arguments dragged on, U.S. Ambassador Zalmay Khalilzad finally intervened to avoid a stalemate. To gain concessions in other areas, he supported provisions that strengthened Islam's influence. Ultimately, the Kurds acquiesced too, both because they had other priorities to defend and because they recognized that conservative Shiites were not going to capitulate.
Article 2 of the final version of the constitution makes Islam the official religion of the state, cites it as a basic source of legislation, and says that no law can be passed that contradicts its "undisputed" rulings. Interpreting this provision will fall to the Supreme Court, which the new constitution says may include clerics; their number and method of selection were not specified, but will be defined by a subsequent law that must be approved by a two-thirds majority of parliament.
Secularists and women's advocates are also worried about Article 39, the section dealing with personal-status law. As foreshadowed by the battle in the IGC, Article 39 deems Iraqis "free in their personal status according to their religions, sects, beliefs, or choices," but leaves it up to subsequent legislation to define what this means. If Shiite leaders truly meant for the provision to give Iraqis the freedom of choice -- allowing Shiites to live under Shiite law and Sunnis to live under Sunni law -- then the progressive 1959 code may also be kept on the books for those who want it. Allowing such freedom could lead to a confusing but relatively benign system (not unprecedented in the region), under which Iraqis with legal questions could choose among different codes and court systems -- Sunni, secular, or Shiite -- depending on which they thought would give them the most favorable treatment.
Many secular Iraqis worry, however, that Article 39 will lead instead to an Iranian-style theocracy, which would severely limit women's rights in particular. Adnan Pachachi, the former Iraqi foreign minister and a secular Sunni leader, told The New York Times in August that although he agreed with much of the new constitution, he was troubled by its more overtly Islamic provisions. "They want to inject religion into everything, which is not right," he said. "I cannot imagine that we might have a theocratic regime in Iraq like the one in Iran. That would be a disaster."
Indeed, Iran's theocracy has been a disaster on multiple fronts, including women's rights. In the aftermath of the 1979 revolution, Iran's new government quickly suspended the country's progressive family law, disallowed female judges, and strongly enforced the wearing of the hijab. Within a few months, sharia rulings lowered the marriage age to nine, permitted polygamy, 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. Over the intervening years, Iranian activists, including some conservative religious women, have managed to soften some of the harshest inequalities. But anything approaching the Iranian system would still represent a major setback for Iraq's women.
Skeptics might wonder whether the legal debate in Iraq really matters. After all, most Middle Eastern countries have elegant constitutions guaranteeing many rights and freedoms to their citizens, yet lack the sorts of strong institutions that could defend those rights with any consistency. And indeed, Iraq may slide down this path over time. In the short term, however, the heavy U.S. presence there ensures that the political process will emphasize constitutional provisions and the rule of law. Moreover, according to an analysis by Nathan Brown, a George Washington University professor and a constitutional expert, Iraq's constitution has fewer loopholes for limiting basic freedoms than those of Iraq's neighbors. The new document also designates certain institutions, such as the Human Rights Commission and the Federal Supreme Court, to defend individual rights. Although the structural details of these bodies remain to be determined by Iraq's legislature, there is still reason to hope they will effectively defend Iraqis' freedoms.
LEARNING FROM OTHERS
No matter how effective such institutions turn out to be, the fact remains that the new constitution makes sharia supreme in Iraq. If moderates hope to advance women's rights, therefore, they will have to do it within an Islamic framework.
Fortunately, there are good precedents for such a process. Morocco, for example, recently revised its personal-status code (moudawana) but claimed to be doing so on Islamic grounds. The reforms were the result of over a decade of pressure from progressive Moroccan nongovernmental organizations (NGOs), 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. Such efforts were opposed by religious groups. But Morocco's modernizing young king, Muhammad VI (who claims to be a direct descendent of the Prophet), backed the reformers and appointed a committee to examine potential changes to the moudawana. In October 2003, he formally presented parliament with a set of sweeping revisions to the family law, defending the changes with copious references to the Koran. In fact, both religious and secular supporters of the reforms used the language of religion and Islamic jurisprudence to advocate gender equality, and despite conservative opposition, parliament approved the changes.
Indonesia provides another example of how progressive change can come from within Islam. A group called Fatayat, the women's wing of the country's largest grass-roots organization (known as Nahdlatul Ulama), now trains its members in Islamic fiqh (jurisprudence) so that they can hold their own in religious debates. An NGO known as P3M (the Indonesian Society for Pesantren and Community Development) also uses fiqh to encourage Indonesia's many pesantren (religious schools) to promote women's reproductive health and family planning. And Musdah Mulia, the chief researcher at Indonesia's Ministry of Religious Affairs, caused a sensation in 2004 by calling for important changes to sharia in areas such as marriage, polygamy, and the wearing of the hijab -- changes that she defended through meticulous references to Islamic jurisprudence. Her controversial recommendations have not yet been enacted, but they have sparked an important debate across Indonesian society that may eventually lead to significant changes.
An organization known as Women Living Under Muslim Laws (WLUML) provides another, transnational example of how women are pushing for change from within Islam. Founded in 1984 to oppose the harsh interpretation of sharia emerging in Algeria, WLUML functions by giving information on progressive Islamic systems around the world to local activists, who use the information to fight for greater freedoms. The network remains up and running today, providing women's groups around the world with powerful Islamic justifications for gender equality.
TURNING NUMBERS INTO INflUENCE
In Iraq, unlike in many other Muslim nations, women will have a strong advantage in their fight for equality: namely, a provision in the new constitution that guarantees them 25 percent of the seats in parliament. This quota is the product of intense lobbying by women's groups, who feared being left out of the new Iraqi politics. It also has some grounding in Iraqi history. The Baathists gave women the vote and the right to run for office in 1980; within two decades, women had come to occupy 20 percent of the seats in Iraq's rubber-stamp parliament (compared to a 3.5 percent average in the region) and some prominent cabinet positions. After the invasion, U.S. policymakers were sympathetic to women's concerns that they would lose their political position in an election process dominated by conservative Shiites. Washington also wanted to support Iraqi women without directly challenging religious convictions. Instituting a quota seemed a good way to do both.
The process started with the Transitional Administrative Law, the interim constitution issued by the Americans and the IGC in 2004, which stated that women should constitute no less than a quarter of the members of the National Assembly. In the run-up to the January 2005 elections, political parties were required to field electoral slates on which every third candidate was a woman. As a result, women captured 31 percent of the seats.
At the time of the elections, some Western commentators pointed to this high level of female representation as evidence that a grand social and cultural transformation was under way in Iraq. With so many women in parliament, they reasoned, Iraq's new government would have to take a progressive stance on women's rights in drafting the new constitution and limit the role of religion. But assuming that merely having women in government would produce liberal legislation was a mistake. After all, nearly half of the women elected had run on the UIA list, and they have toed their party's conservative Shiite line.
When the constitution-drafting process began, progressive women, sensing that they would lose the battle over Islam, focused on holding on to their 25 percent quota in parliament. Several women leaders actually hoped to expand the quota (a few mentioned 40 percent as their goal) and apply it to other decision-making positions as well. But conservatives responded by attempting to have the quota phased out altogether after two rounds of elections. In the end, the quota did make it into the final draft of the constitution, which will give women in Iraq one of the highest levels of representation in the world (after all, women make up less than 15 percent of the U.S. Congress). Many of these seats may continue to be filled by female conservatives unlikely to support progressive legislation on women's issues in the near term. Over time, however, these same legislators may start advancing women's rights within an Islamic context.
The future of Islamic feminism in Iraq will depend on politicians such as Salama al-Khafaji, a dentist turned politician who is also a devout Shiite. After losing her son in an ambush, Khafaji was rated the most popular female politician in Iraq in a survey conducted in June 2005 (and was ranked the 11th most popular politician overall). As a member of the IGC, she incurred the wrath of secular women's groups by voting for Resolution 137. But Khafaji (who has pursued her political ambitions despite the objections of her husband, who divorced her as a consequence) defended her position by arguing that Islamic rules actually provide better protection to women in divorce and custody proceedings than does secular law. Khafaji sees herself as a positive force for change on women's issues; as she told a journalist last November, "I have Islamic ideas on justice, but I am moderate." And her ability to work with both secular and Islamic parties could make her an effective legislator.
The status of women in the future Iraq will also depend in large part on the strength of the country's judicial system. Here, too, there is reason for guarded optimism; although Iraq's court system needs significant reform, it does include many qualified lawyers and judges (although their expertise lies mostly in secular law, not sharia). Iraq also has a tradition of women serving as judges. The country's first female judge, Zakia Hakki, was appointed in 1959 (she is currently a prominent member of parliament). Today, women are widely accepted as judges in the Kurdish north and in the more secular parts of Baghdad.
But keeping women on the bench elsewhere will not be easy, as the story of Nidal Nasser Hussein illustrates. In 2003, the U.S. authorities appointed her the first female judge in the Shiite holy city of Najaf. The decision was met with widespread outrage. Several senior clerics quickly issued fatwas saying that under Islamic law only men can be judges, and angry protesters showed up at her swearing-in ceremony. In the face of such unexpected opposition, the senior U.S. commanding officer in Najaf decided to delay Hussein's appointment indefinitely, and she has yet to take her seat on the bench. As conservatives consolidate their control in the Shiite south, such conflicts are likely to intensify. Iraqi women should respond by invoking Islamic scholars who argue in favor of female judges.
Although having the right judges on the bench will determine the formal rights of Iraqi women over the long term, in the short term religious vigilantes, who are forcing their own fundamentalist views on Iraq's besieged population, are having the greatest impact. Over the past two years, various towns in both Shiite and Sunni areas have fallen into the hands of extremists who are imposing stringent restrictions there, such as requiring women to wear full-length veils, forbidding music and dancing, and enforcing strict segregation of the sexes in public. Many of these vigilantes are unemployed, undereducated followers of demagogues such as Muqtada al-Sadr. But at least some are reportedly also members of the police force in several southern cities (notably Basra). As their activities suggest, the greatest danger to Iraqi women stems not from any legal restrictions, but from lawlessness.
FRIENDS IN HIGH PLACES
Although the status of Iraqi women will ultimately depend on Iraqis themselves, the United States can still play a constructive role. Washington should start by identifying and cultivating Islamic feminists within Iraq's mainstream religious parties. These women (and men) may not want to cooperate with the United States at first, and some of them will hold anti-American views. But these individuals wield far more political influence than the secular but marginalized Iraqi leaders who are popular in Washington, and the United States must learn how to work with them.
Indeed, the United States should work with Iraqi women across the religious spectrum in order to cultivate new leaders. Thanks to the quota system, there is no question that Iraqi women will continue to play a significant role in national politics in the years ahead, and Washington should help ensure that it is a moderating one. Most of the women elected to parliament will be new to politics. The United States should provide them with technical training (through organizations such as the National Democratic Institute for International Affairs, an NGO that provides practical assistance to leaders advancing democracy) and help them to network across sectarian lines. Iraqi politicians should also be encouraged to work with their more moderate Iranian counterparts. The current U.S. policy of excluding Iranian parliamentarians and activists from U.S.-funded conferences in the region is counterproductive and should be abandoned.
The United States should also assist with judicial reform. This means not only helping the courts modernize technologically, but also training judges, especially women, in modern Islamic jurisprudence. These training programs could be developed in partnership with the leading institutions of Islamic jurisprudence throughout the region, and they should be open to judges from across the Muslim world.
To help women defend their rights, Washington should also educate Iraqis about what their rights are -- both under the new constitution and under sharia. A recent Freedom House report assessing women's rights in 17 Arab countries found that with the exception of Saudi Arabia, each has a constitution that formally mandates gender equality. The problem in these countries, however, is that the governments make little effort to inform the people of their rights. To avoid such a scenario in Iraq, the United States should support educational programs and a nationwide media campaign to promote better understanding of Iraqis' freedoms, under both the constitution and other laws. Washington should also encourage open dialogue on various interpretations of sharia governing personal-status laws. Religious scholars and international Islamic groups, such as Sisters in Islam and WLUML, should be invited to join and inform the discussions, which should be widely broadcast through media outlets such as Radio Al-Mahabba (a U.S.-funded Iraqi station dedicated to raising awareness on women's rights).
In the long term, female education may be the best way to advance the status of women. During the difficult decade of the 1990s, school-enrollment rates for girls in Iraq declined significantly, making Iraq one of the few countries in the world today where mothers are generally better educated than their daughters. Although reliable literacy figures are hard to come by, most observers agree that Iraq now has one of the worst gender literacy gaps in the world. As Iran, with its female literacy rate of more than 70 percent, has shown, educated women inevitably become effective advocates for their own rights. The United States should therefore champion female education in Iraq at all levels -- primary, secondary, and tertiary -- and promote adult-literacy programs for women.