Shariat law proves contentious issue as country moves to self-rule

Nada Jabber Hussein wants to divorce her husband. But instead of going to a civil court in her home town of Najaf in southern Iraq, she chose the head sheikh at Najaf's shariat (Islamic) court to provide a final judgment on her case. Like the many others that enter the small two-storey building, tucked down a side street near the Shrine of Imam Ali in this Shi'ite holy city, 30-year-old Nada believes that the court will provide a fair judgment on her divorce. But the court, the people going to it, and its nine sheikhs may pose problems for the US-led Coalition Provisional Authority (CPA) as it moves to transfer power back to Iraqis on 30 June and finalises a new constitution. "This is a very old case," Sheikh al-Kafagi told IRIN in Najaf as Nada sat shrouded in her black abaya (a long cloak covering body from head to toe) next to her husband, Abdel Karim Salim, 44. Her parents looked on sombrely as she explained why she wanted a divorce. "I spent 12 years with this man," she said, noticeably shaking and turning her body away from her husband. "He wanted to get married to a second wife. I agreed. I even prepared food and sweets for them." But after three months, she explained, the second wife left Salim. "After this, he accused me of making witchcraft against her," Nada alleged. "He then kicked me and beat me as well as the children. I want to divorce him." After listening to the case, Sheikh al-Kafagi said that Nada could have the divorce provided her two children were left with Salim. But before making a final judgment he adjourned the case for further deliberation. "We make our decisions based on Islamic law," al-Kafagi said when the family was absent. "We have the authority to make decisions from the Koran and we are given rights by the Shi'ite clergy." The court and its judgments are based solely on Islamic shariah law, al-Kafagi explained, adding that there are also Islamic courts in the southern Iraqi cities of Hilla, Karbala and an-Numaniyah. The nine Islamic scholars in Najaf preside over 100 cases a day, ranging from marriage, divorce, land ownership disputes, fraud, adultery and robbery. The court also conducts investigations, al-Kafagi explained. "We detain people," al-Kafagi said. "We have a youth police force that works for the court. There is also a committee to control the buying and selling of music. We are watching the shops to make sure nothing bad is sold there." He explained that if a woman is caught committing adultery, she has to swear under Islamic law to be faithful in the future. "But if she is caught committing adultery for a third time, she is caned at least 10 times," he said. He declined to comment on other punishments the court administers and failed to mention similar punishments for men. The existence of the court raises questions about the transparency of human rights in Iraq and underlines just one of the many challenges faced by the US-led coalition when it transfers power back to Iraqis. Will this country become a secular or an Islamic state? If the US coalition has its way, Iraq will be a secular state, based on a secular constitution. The US civil administrator, Paul Bremer, indicated recently in the south-central city of Karbala that he would block any interim constitution that made Islam the source of law. Bremer said that the current draft of the constitution would make Islam the state religion of Iraq and "a source of inspiration for the law" - not the main source. "Our position is clear. It can't be law until I sign it," he said after being asked what would happen if Iraqi leaders based the constitution on Islamic law. As the US civil administrator, Bremer has the power to veto any laws passed by the 25-member council, including the interim constitution. Bremer has stressed in the past that the coalition was prepared to work with ensure that the constitution provides every citizen with fair rights. Iraq is a complex ethnic mix, with Christians, Jews, Kurds, Shi'ites, Sunnis and Turkomans. The Shi'ites make up roughly 65 percent of the country's 24 million people, according to recent reports. Despite Bremer's efforts to steer Iraq towards a secular government, there are many obstacles. Most notably, the Iraq's Shi'ite clerics support Islamic law and reacted angrily to Bremer's comments on the constitution. Mohsen Abdel-Hamid, the current governing council president and a member of a committee drafting the interim constitution, proposed making shariah law the principal basis of legislation. Islamic law would weaken much of Iraq's 1959 Law of Personal Status. This law grants equal rights to husband and wife to divorce and inheritance, and governs related issues such as child support. In December, the council passed a decision abolishing the 1959 law and allowing each of the main religious groups to apply its own tradition. Many Iraqi women expressed alarm at the decision, and Bremer has not signed it into law. But even at the Najaf Human Rights and Democracy Centre, one woman lawyer and member, Gifran Abd al-Hady, told IRIN that she was an advocate of the Islamic courts and shariat law. "We support the Islamic court," al-Hady said as a fellow lawyer and member nodded her head in agreement. "We encourage rules that protect women's rights but I personally want Islamic rule in Iraq," she said. "We will all accept shariah law because it is God's law." Al-Hady explained that Najaf Human Rights and Democracy Centre address problems facing Iraqi society, particularly the condition of woman. "We study the problems and make possible solutions to these problems," she said. "Our task is to be in the middle of government and people. But any new laws should not be against Islam," she added. Even the chief executive of the law office for the Human Rights Ministry believes that Iraq's Human Rights declaration will be consistent with Islamic law and that divorce will be governed by shariat. "We will make a new human rights law for Iraq," Mohammed al-Jibbouri told IRIN. "But any country has the right to make its own laws. The marriage law, for example, will be based on Islamic law." Iraq is in the process of drafting its Declaration of Human Rights.