Women's Rights and the Iraq Constitution
I posted about a week ago a piece on the problems of constitutionalism as applied in the new Iraq. My wife has now written a piece on precisely this problem in JURIST, this is the link and those interested in Middle Eastern law, or women's rights, should really take a look. It involves what to my mind is a very very challengeable provision in Ministry regulations requiring women who want to get passports to seek the approval of their "Guardian of Affairs" ولي الامر meaning their husbands (or fathers if unmarried) as a general matter, and my wife's unsuccessful efforts to get lawyers in Iraq to think, well, like lawyers elsewhere and challenge this thing. The concept is foreign, the first reaction to trust the Ministry when it claims this is all constitutional, the second to petition the government and ask politely for them to follow the law, and the third to insist the Attorney General must be involved to make a constitutional claim against the government, about the dumbest thing I've ever heard (you need the government to sue the government). The experience in making these sorts of claims is entirely absent. We're doing our little part to help build that up.
To those who wonder whether or not the regulations can be defended as Islamic, I would say it's a tough argument to make. Certainly the mainstream interpretations of shari'a prohibit a woman from leaving her home without her husband's permission (they do, it's not politically correct, but they do), but these regs hardly vindicate that shari'a provision. Lajan Muhammad Amin as an unmarried woman gets a passport when her father signs off, if she marries, she still has that passport, the regs haven't done anything to prevent her from doing anything. If she hadn't gotten her passport, then there is a restriction. The way to vindicate this traditional shari'a right of a husband to oppress his wife if you wanted to do that (I don't, I want shari'a reform) would be to prevent her from leaving the country without the permission of her husband, passport or no passport. Many Middle Eastern countries, including Saddam's Iraq (for those who thought pre invasion Iraq was a paradise for women) did precisely that. But these regulations are not easy to defend on the grounds of husband's right to limit wife's travel because they offer limitless rights to travel once the person gets the passport. Perhaps the Court would make the Islamic argument, I'm a realist, there's an argument for everything, but certainly a very strong case can be made that these violate the equality provisions of the Constitution in a direct manner and achieve no Islamic objective. But no such case is being made to our knowledge, and that speaks volumes.
Anyway, the piece I think pokes a rather serious hole into the notion of constitutionalism in Iraq, as applied rather than in theory. There has been altogether too much attention to the former, what the Constitution says, and not nearly enough on the latter, what it does. As a realistic matter, the Constitution matters when the legislature is considering laws (it refers to it all the time), it matters, as the ABA in its report on the subject properly notes, when an ex Minsiter of Justice seeks to vindicate his constitutional rights, but to draw from that much else would be a mistake. Right now, in terms of individual rights, and their vindication through a constitutional framework, there is a long way to go.
The point ultimately being, you can't just draft a document that says nice things, and then be assured everything will be fine, not if you are going to measure law as a realist does, by its effect on the ground and not its eloquence in the sky. I know people say this all the time, but I wonder whether they mean it, that is, whether despite their embrace of realism, and the notion that the law is what it does, they are really as realist in application as they are in theory. The focus right now, in the media, in the academy, in policymaking circles, is on making sure laws get passed that say good things, and much less on how those laws will actually work on the ground.
Sara (from my admittedly biased perspective) has pointed to precisely such a case--all the hullaballoo on women's rights and shari'a, all the scholarship on whether or not Article 2's embrace of shari'a will limit Article 14's promise of equality, and nobody has bothered to look at the ground, and see that in fact, none of this means very much because people quite often don't raise constitutional cases, even in circumstances where the Article 2 shari'a interests are rather largely orthogonal to the dispute, as they are in the passport regs case. Now if we can only get the Western NGO's, the US women's rights groups, Maureen Dowds, to write about, think about, agitate about that, well then maybe we can build up the institutional and legal cultures necessary to make the words meaningful, and then just maybe the actual lives of Iraqi women might improve. Right now, it's all on paper.
HAH
To those who wonder whether or not the regulations can be defended as Islamic, I would say it's a tough argument to make. Certainly the mainstream interpretations of shari'a prohibit a woman from leaving her home without her husband's permission (they do, it's not politically correct, but they do), but these regs hardly vindicate that shari'a provision. Lajan Muhammad Amin as an unmarried woman gets a passport when her father signs off, if she marries, she still has that passport, the regs haven't done anything to prevent her from doing anything. If she hadn't gotten her passport, then there is a restriction. The way to vindicate this traditional shari'a right of a husband to oppress his wife if you wanted to do that (I don't, I want shari'a reform) would be to prevent her from leaving the country without the permission of her husband, passport or no passport. Many Middle Eastern countries, including Saddam's Iraq (for those who thought pre invasion Iraq was a paradise for women) did precisely that. But these regulations are not easy to defend on the grounds of husband's right to limit wife's travel because they offer limitless rights to travel once the person gets the passport. Perhaps the Court would make the Islamic argument, I'm a realist, there's an argument for everything, but certainly a very strong case can be made that these violate the equality provisions of the Constitution in a direct manner and achieve no Islamic objective. But no such case is being made to our knowledge, and that speaks volumes.
Anyway, the piece I think pokes a rather serious hole into the notion of constitutionalism in Iraq, as applied rather than in theory. There has been altogether too much attention to the former, what the Constitution says, and not nearly enough on the latter, what it does. As a realistic matter, the Constitution matters when the legislature is considering laws (it refers to it all the time), it matters, as the ABA in its report on the subject properly notes, when an ex Minsiter of Justice seeks to vindicate his constitutional rights, but to draw from that much else would be a mistake. Right now, in terms of individual rights, and their vindication through a constitutional framework, there is a long way to go.
The point ultimately being, you can't just draft a document that says nice things, and then be assured everything will be fine, not if you are going to measure law as a realist does, by its effect on the ground and not its eloquence in the sky. I know people say this all the time, but I wonder whether they mean it, that is, whether despite their embrace of realism, and the notion that the law is what it does, they are really as realist in application as they are in theory. The focus right now, in the media, in the academy, in policymaking circles, is on making sure laws get passed that say good things, and much less on how those laws will actually work on the ground.
Sara (from my admittedly biased perspective) has pointed to precisely such a case--all the hullaballoo on women's rights and shari'a, all the scholarship on whether or not Article 2's embrace of shari'a will limit Article 14's promise of equality, and nobody has bothered to look at the ground, and see that in fact, none of this means very much because people quite often don't raise constitutional cases, even in circumstances where the Article 2 shari'a interests are rather largely orthogonal to the dispute, as they are in the passport regs case. Now if we can only get the Western NGO's, the US women's rights groups, Maureen Dowds, to write about, think about, agitate about that, well then maybe we can build up the institutional and legal cultures necessary to make the words meaningful, and then just maybe the actual lives of Iraqi women might improve. Right now, it's all on paper.
HAH
Saddam's Iraq (which was not a paradise for women of course) did not require husband permission for travel before the 1991 war. I know this through a personal experience in 1990.
After the 1991 war, there were some allegations that Iraqi women went to Jordan and worked there in improper and immoral fields, so the Iraqi government ordered that no woman should travel unless she was physically accompanied by her father, brother or son.
Just another thing to make life harder, i guess.
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I agree, the regs came in at some point in the 1990's. But they were still a Saddamist implant is the point, not something that appeared after he was removed. IN fact, the regs that prevented women from travelling were REMOVED after he was removed.
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