An article by Raqiya Al-Qaisi, an Iraqi scholar based in London. (Translated from Azzaman).
The issue of family affairs is one of the most important issues that reflect progress or retardation of society, especially in the case of the relationship between men and women and personal circumstances (alahwal alshakhsiya). The Iraqi personal circumstances law which has been in effect for over 40 years represents an advanced one in its advocation of woman rights. We hoped for more reforms on the existing judiciary code in order for women to obtain additional rights which would conform with the prerequisites of the new Iraq, we did not expect to go steps backward as is the case today in Iraq?
The transitional GC recently passed a decision to abolish the personal circumstances law, and according to this decision which reflects the 'desire of Islamic parties' the GC agreed that Islamic Sharia (Allah's law) would rule in cases of personal circumstances of man instead of the existing civil code. And that spiritual Islamic ethics would be included in the future government they intend to form in Iraq.
The GC gave the role of legal courts, according to this law, to clerics and tribal leaders. Which means that the destiny of women in Iraq will be subject to fatwas and personal interpretations of Islamic Sharia texts by Mullahs and tribal sheikhs, when it should be according to a fixed personal circumstances code. This project evoked storming rage and condemnation from Iraqi women because of the stark differences between the two. In the case of the personal circumstances law, legal courts rule depending on evidence and proof, because law is science, and science depends on certain knowledge. Whereas in the second case rulings are made from beliefs based on personal interpretation and misconstruction of Islamic law.
And according to the law of belief and faith, traditions (from which many primitive practices and concepts evolve) play a huge part in defining the position of women. The eastern man for example believes that by confining women to home, preventing her from mixing with men, and wearing hijab are all marks of her virtue and honour. He regards women (and their families) who do not observe these traditions as dishonourable. He associates virtue with wearing hijab because he measures things according to traditions and values he learned from his peers and immediate surrounding. Thus, issues that are connected with values -with what is good and evil, what is virtue and vice- are also entirely connected with human desires. Which if were all the same there wouldn't have been a problem, but human desires are always contradictory.
Therefore, decisions made from human desires in the area of personal circumstances or politics can have serious consequences!..Because it can decide the destiny of people which should be made without distinction in order to achieve justice for all parties involved. The generalization of the desire of Islamic parties, imposing it on all Iraqis, regarding it as a higher interest, and that it represents the desire of the majority is very undemocratic as it only truly represents the interest of Islamic parties in the GC! And this step is an impertinent intrusion in peoples' personal lives.
This all shows that democratic values and respect of human rights (the liberal program) are all propaganda and publicity pretences, and that it is difficult to practically apply them in Iraq due to the following fact: The Arabic and Islamic political mind and the setup of Arabic and Islamic societies conflict with this program. These societies are traditionally based on consensus, prohibition of criticism and open discussions, and eliminating the opponent and regarding him as 'enemy'. The reason is that the rule in these societies is that of Allah... And Allah has a representative on earth which is the man in power. This tradition has not evolved (except in rare circumstances) and may need a divine miracle as Ibn Khaldun says. It has also been in effect for centuries throughout ancient, medieval, modern, and contemporary history. The majority of the political governing regimes in the Islamic world, whether these were theocratic or secular, republican or monarchical, conservative or liberal, are tainted with religious features.
There are other obstacles, besides the aforementioned, facing the democratic liberal program: The advocates of this program (the USA and Britain) are both traditional enemies.
First from religious ideology as they are Crusades in the collective imagination of people in the region. Second from political ideology as they are capitalist imperialist powers that have occupied the region and plundered its wealth.
Which means there is a strong connection between ethical values on which the people in the region rely on and refuse to go beyond and modernization values. For example the problem of illiteracy and retardation and the necessity of modernizing Arabic societies is presented with the problem of Arab and Muslim relations with the west. And with this relation the issue of modernization comes into dialectical contradiction with the heritage, traditions and civilization of Arabs and Islam. Which puts the people -particularly in the Arab world- in a defensive position against any modernization effort, because they believe modernity somehow means abandoning traditional values and holy Islamic teachings. This argument is common among Islamic conservatives and has been engrained in the subconscious of people for centuries which has made modernization synonymous with immorality.
This feeling naturally makes the individual in a traditional society prefer to submit to his inherited habits and religious heritage and not to the modernization program imposed upon him from outside (by Americans). And the resultant is that traditional society laws are contradictory with human rights (and women rights) because 'individual freedom' is an unacceptable right in such societies.
This phenomenon prompted the majority of western occidentalists and scholars to note that the absence of individual freedom practices in the east is due to the individual's feeling that freedom is unnecessary... And they concluded that people in the region were born to be slaves under their regimes!
The Americans have not yet understood the Iraqi concept of freedom which differs from that of the liberal west. Before the decision to remove the regime it should have been necessary to comprehend the relationship between the individual, the community, and the state in Iraq. This can only be achieved through opinion surveys from within the Iraqi society.
Heritage which provides the government and the state with higher values is always welcomed by the ruling elite. On this basis the Islamic parties project was agreed on by the majority of GC members despite the fact that it contradicts with the following:
The GC was formed by coalition authorites as a temporary advisory body, it does not have the authority to change laws, only the civil coalition command has that authority. And according to Security Council resolutions 1438 and 1511 the coalition forces were recognized as the only legitimate authority holding legislative, judiciary, and executive branches until authority was transferred to a new government that represents all Iraqis of all backgrounds.
Democratic values involve making peace with opponents not removing them. The opponent should be appeased and convinced not eliminated. The GC does not know or most likely ignores this. The way the GC is presently operating, abolishing and issuing laws contradicts democratic values. Depending on the opinion of Islamic parties inside the council and regarding it as the opinion of the majority inside and outside the council (all Iraqis).
This democracy is similar to the one party democracy or (central democracy) which has proved its failure because it means the democracy of the minority. This is not so different from the Iranian style democracy.
Islamic parties think this law is derived from Islam especially in issues of women rights and family affairs when in reality its very far. Islam originally came to free women from the Arab jahiliya traditions. Arabs used to scorn women and regard them as material belongings and they used to inherit their dead relatives wife as they inherit his other posessions. Islam originally dignified women and gave her the same rights as man. It regarded men and women as equals in self, mind, and emotion because they are both human and it's not fair for any of them to control the other or enslave him.
On the other hand, the culture and the practice of Muslims is against these principles because clerics cite verses that can be interpreted as being deprecatory to women and according to these verses women are lower than men. And of course women cannot object to Allah's will.