Women and the laws in Iran
Mojdeh Shahriari, B.A., M.F.A., LL.B
In part (1) of this article, I discussed the preamble of the Constitution[1], which preamble clearly sets the Islamic context of the Constitution. More particularly, the Constitution gives supremacy to Sharia law[2] and places faith and power in the ruling clergy for all matters of governance. The Supreme leader and the Guardian council, according to the Constitution, have the authority to more or less rule by decree against the will of all other authorities. This characteristic feature of the Constitution’s preamble renders it in contradiction to democratic principles such as the supremacy of the rule of law itself. Firmly rooted in the principle of vali-e-faqih[3], the Constitution controls both the public and private lives of peoples and individuals.
In addition, the Constitution has a rather schizophrenic character. On the one hand, it sanctions a parliamentary republic with specific articles providing for free election of the president and members of the parliament, while on the other hand it restricts each and every “democratic” provision by subordinating it to a theocratic regime based on religious rulings of the elite clergy.
In this part of the article, I will show this schizophrenic character with respect to the rights of women, or lack thereof of such rights in the Islamic Republic of Iran. It will follow that no meaningful reform can take place within the framework of the current Constitution as it itself legitimizes a society in which women are not regarded as equal to men. Gender inequality is embedded in Iranian laws
Chapter 3 of the Constitution contains the legal safeguards for the equality of all persons before the law. It includes the following articles:
Article 19
[No Discrimination, No Privileges]All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights; color, race, language, and the like, do not bestow any privilege.
[Equality Before Law]All citizens of the country, both men and women, equally enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic criteria.
[Women's Rights]The government must ensure the rights of women in all respects, in conformity with Islamic criteria, and accomplish the following goals:1) create a favorable environment for the growth of woman's personality and the restoration of her rights, both the material and intellectual;2) the protection of mothers, particularly during pregnancy and child-rearing, and the protection of children without guardians;3) establishing competent courts to protect and preserve the family;4) the provision of special insurance for widows, aged women, and women without support;5) the awarding of guardianship of children to worthy mothers, in order to protect the interests of the children, in the absence of a legal guardian.
( bold added for emphasis)
More particularly, article 21specifically enshrines women’s rights in the Constitution, with certain welfare state like provisions. On the face of it, this article is a useful legal foundation for seeking equality rights for women; however, the opening of the article conditions these rights once again to “conformity with Islamic criteria.”
The “conformity with Islamic criteria” can then be traced in more specific laws in the Islamic Republic of Iran, which clarify in more practical ways what “women’s rights” means under the Constitution. A glaring example of how the Sharia law has been interpreted to dismantle any notions of equality between genders is displayed in the Penal code of the Islamic Republic of Iran. Article 300 of the Penal code, for example, states that the Deyeh (blood money) of a Muslim woman is half of the Deyeh of a Muslim man:
Article 300:
The blood money for the first- or second-degree murder of a Muslim woman is half of that of a murdered Muslim man.
In simple terms this means that a life of a Moslem woman is half the value of a Moslem man according to the Islamic criminal law of Iran. Obviously, the language of this section of the Penal code also means that non-Moslems have even less value in the eyes of the law itself.
Another example from the Penal code’s provisions that provide legal authorization for the subjugation of women in Iran is article 102 which states that married offenders (adulterers) are liable to stoning regardless of their gender, but the method is different for men and women who are subjected to this cruel torture. The law says that a man must be buried up to his waist, but a woman must be buried up to her neck:
Article 102:
The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.
Therefore, chances of a woman pulling herself out of this situation are nil.
It is sickening to compare and contrast such barbaric laws with respect to its treatment of men and women. The point is that even in such laws which are themselves in clear breach of the most basic of universal human rights, women and men are treated differently. In other words, the Constitution with its religious framework and specific references to the supremacy of the Islamic criteria provides the foundation for human rights abuses in Iran in general, and for the systematic persecution of Iranian women in particular.
The Civil code, too, is filled with provisions that institutionalize and legalize the oppression of women. Article 1115 of the Civil code gives the husband the exclusive right to be the head of the family:
Article 1105-
In relations between husband and wife; the position of the head of the family is the exclusive right of the husband.
It then specifies the powers bestowed on men against women in numerous sections such as article 1117 which gives a husband ultimate decision-making power over his wife’s profession;
Article 1117 -
The husband can prevent his wife from occupations or technical work which is incompatible with the family interests or the dignity of himself or his wife.
In sum, under Islamic canons on which the Constitution is based, women are considered half of men in criminal and social legal rights. They are banned from deciding for themselves as they are subjected to authorization from their husband, brother or father for doing almost anything in their lives in Iran. Men can, under Sharia law, have four fives and many more temporary marriages (known as siqeh), whereas women have no rights to divorce unless exceptional circumstances apply.
The same kind of devaluing of the female gender is perpetuated in other legal statutes in Islamic Iran. Article 18 of Passport law, for example, requires a married woman to require permission from her husband in order to apply for a passport.
Finally, the Constitution discriminates against women by allowing men only to hold high positions such as in the presidency itself. Article 115 of the Constitution states as follows:
Article 115
[Qualifications]The President must be elected from among religious and political statesmen possessing the following qualifications:- Iranian origin;- Iranian nationality;- administrative capacity and resourcefulness;- a good past record;- trustworthiness and piety; and- convinced belief in the fundamental principles of the Islamic Republic of Iran and the official religion of the country. (bold added for emphasis)
Based on this article, only religious statesmen are qualified to consider running, and from those of course anyone who does not believe in the fundamental principles of the Islamic Republic and the official religion are also excluded. In other words, women don’t even pass the first and most important criteria set in the Constitution to run for presidency because they are women.
Despite these stark inequalities, progressive women in Iran have continually fought to change the laws in Iran. In June of 2005, prior to the presidential elections of that year in Iran, hundreds of women demonstrated in front of Tehran university, calling for changes to the Constitution itself. Women chanted bravely “Long Live to Freedom and democracy” in that year. They argued with their courageous demonstration that freedom and democracy without women’s rights is meaningless.
In the recent protests in Iran, too, Iranian women and in particular young women have been at the forefront of the movement, demanding that their rights and human dignity be recognized and protected in Iran. They continue to demand that all anti-women laws in Iran be abolished. It is my argument that such changes cannot be made within the current Constitution, which contradicts universal human rights of women to equal rights to men. Equality for women in Iran is unachievable under a constitution that conditions all laws to Sharia law and Islamic criteria. As such, the progressive minds and hearts of this movement, must denounce the Constitution if they are serious in their quest for democracy, freedom and the protection of basic human rights in Iran. The democratic project cannot move ahead in any shape or form without a fundamental change in the very laws that form the foundation of the Islamic Republic of Iran.
To be continued
Mojdeh Shahriari is a Vancouver based refugee, immigration, and human rights lawyer
[1] As defined in part (1), the Islamic Republic’s Constitution is referred to as (the “Constitution”) throughout this article.
[2] Sharia law is founded on the acts and sayings of Mohammad as found in the Quran and the Sunnah (the manner or deeds of Mohammad). Sharia law is referred to Muslim or Islamic law; a legal framework within which the public and private aspects of life are regulated based on Islamic principles. Sharia law covers both civil and criminal justice domains in addition to regulation of individual conduct both personal and moral.
[3] The Supreme religious leader
, B.A., M.F.A., LL.B
