Expert Insight

Women's rights ... between the constitution and legislation Ph.D. in Public International Law / International Arbitrator . Lawyer Dr. Hadeel Adnan Anwar


To begin with, and at the outset, we state that human and women's rights, in particular, are guaranteed and ensured under all constitutions, and international covenants, and were guaranteed even earlier in all divine religions, including the Islamic Sharia. If we refer back to the legislative basis of the law of the universe, which is the Qur’an, we see that it includes many verses that explicitly define those rights and consider them the basis of the Islamic Sharia. As the Qur’an sanctifies women and guarantees all their rights. Indeed, we find a complete surah (chapter), within it, which is “Surat Al-Nissa” (The women), which is a charter and constitution in which “Allah” the Almighty, has detailed women's rights in more than one area as they constitute the mainstay of humanity and the secret of continues existence. We also find within it, lessons and stories that perpetuate the role of this great human being, by remembering and eternalizing women through the ages, and history. We find women's attitudes embodied in the image of Mrs. Khadija, wife of the Prophet (PBUH), Mrs. Fatima, Mrs. Zainab, Mrs. Hajar, Mrs. Sarah, and Mrs. Mary, peace be upon them all, right up to the present day, and what women represent in terms of being half of society, and the role that she embodied in areas of life and excelled in as a mother, sister and wife, and her participation with man, in the various fields, and the burdens and disasters of wars and siege she tolerated in many countries, including our country, Iraq, in which she provided valuable aid and support to man. We also find that all charters, the first of which is the United Nations Charter, affirmed human rights in general and women’s rights in particular, and equaled the rights of women and men. Additionally, what has been confirmed by international organizations, including the United Nations, and many international conventions concerned, including the "CEDAW agreement", came to eliminate all forms of discrimination against women, as well as what was contained in the basic human rights charters that promoted women's rights, especially in the “International Bill of Human Rights”,

that came in three instruments which are:

The “Universal Declaration of Human Rights”, the “International Covenant on Civil and Political Rights”, and the “Covenant on Economic, Social and Cultural Rights”, and specifically what was stipulated in article (16) of the “Universal Declaration of Human Rights”, which states in its first paragraph that “a man and a woman, when they reach the age of marriage, have the right to marry and establish a family without any restriction on the grounds of gender or religion, and they have equal rights upon marriage, during its establishment and its dissolution.” In its second paragraph, it affirmed that "a marriage contract is not to be entered into without the complete consent of both parties, who wish to marry without coercion”. ”There are many international charters and covenants that stress on equality between men and women in civil and political rights, as well as laws passed against racial discrimination or discrimination against women, and that confronted through various means the issue of violence against women. We ask where are we today, given all these legislative and international constitutions, beginning with the cosmic Sharia or the first constitution “the Qur’an” to all the international charters, covenants, and constitutions that followed, which guarantee and ensure support for the rights of women, and the saying, of the Almighty stating, “Retain with honor (and love) or allow to leave with (kindness and) grace.” Despite all these religious pillars and what is stipulated under the constitutions, including the rights they guarantee and ensure, and this right in particular, we find that there is a legal text that contradicts them, which from my viewpoint constitute a violation of the Sharia, the religions and the text of the United Nations Charter, and a violation of the International Covenant, specifically Paragraph (2) of the article (16) of it! Man-made laws, including the "Iraqi Personal Status Law" and many of the established laws, contradict their main source! I focus on this article for that contradiction, and between everything I mentioned above and the text of the article (25) of the Iraqi amended Personal Status Law. No. (188) of 1959, which continues to this day and grant the husband the right to force the wife to stay in the marital relationship, even if in reality it is a fundamentally terminated relationship for certain reasons that lead the woman to feel the impossibility of living with the husband and keeping this bond by coercion, a privilege which often the husband miss uses only to pressure the woman and force her to give up her rights in exchange for a divorce! This article thus, is a weapon that the husband uses to force the woman to submit in a humiliating manner in order to force her to forfeits her legitimate rights, and if she refuses to submit to the husband’s wishes, a judicial ruling is obtained from a judge that labels her illegally disobedient, in order to abuse her and rob her of all the rights that the religion and law granted her. Thus, this article was truly a double-edged sword, with consequences in both cases harming women, insulting their existence, and stripping them from their rights. I from this stand, and at this time that coincides with the celebration of International Women's Day, I appeal to the Iraqi legislator to take into account the rights of this great being, sanctified by all religions and valued by the Qur’an, the approach of which is adopted by all international charters, constitutions, and agreements, in order to preserve this pillar of the human community from destruction and collapse, and protect her rights and not allow anyone who wants to abuse this sacred creature since the creation of mankind to this day; Therefore, I call for the necessity to cancel the text of the amended article (25) of the Iraqi Personal Status Law No. (188) of 1959, due to the legal, and constitutional breach that this article constitutes, by being contrary to all laws and religions, and present this step as a gift to women on their international holiday.

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