CommentarySara Burhan Abdullah, Pitt Law LLM '08, files from Sulaimaniya:
A recent incident showed me that while the Iraqi Constitution has a great deal of material from which a society based on equality of the sexes can be built, there are significant legal and cultural obstacles to obtaining that goal. I left Iraq to go to the US three years ago, so when I arrived in Sulaimaniya on July 13, many of my friends and relatives wanted to come and visit me. One day, some of my friends from law school came to welcome me, and we started talking about the legal and political situation in Iraq. I asked them how difficult it would be to get a passport without going to Baghdad, because my husband and I are helping to organize a project in the United States that we hoped Iraqis could attend.
One of my female friends complained that her father has to grant her permission in order for her to get a passport, while this is not the case for males. Although her father was happy to do it, she understandably found this notion of parental consent offensive and insulting, given that she is not a child but an attorney with a flourishing legal practice who represents dozens of men and travels around the Kurdish region of Iraq to assist them in their cases.
More importantly, this requirement is a clear violation of the Iraqi Constitution. Article 14 makes clear that all Iraqis are equal under the law without respect to gender. The process of obtaining a passport under relevant Ministry regulations is precisely the same for both genders, except for this additional burden of parental consent imposed on females. This situation seems to be a classic case of legal inequality between men and women.
Shockingly, however, my friends and other colleagues, all lawyers, insisted that the Iraqi Constitution requires paternal consent for women. They based their assertion on statements made by a Ministry employee to the female lawyer I mentioned. They were so certain as to cause me to question my own understanding of the Constitution, but I referred to the text of the Constitution and showed my colleagues the gender equality requirement.
Once they were satisfied, I started encouraging my friends to challenge the law. I raised the possibility of a suit in the federal supreme court of Iraq, but I was surprised when my friends said that in their view, challenging the constitutionality of a law or a regulation is not truly practicable in Iraq. Though it has been done, examples are few and it is seen as a waste of time to even try, since the chances of success are so remote. In the end, I could not convince any of them to consider such an opportunity.
On the next day, I decided to meet with some women's organizations and governmental officials to find out whether there are any efforts to challenge the regulation. I visited four different organizations to discuss the matter. Although I could not meet with all of the people I wished, I did get to meet some lawyers, who turned out to be my former classmates from law school. They provided me with documents written by the Kurdish regional government asking Baghdad to revise the regulations because they are in violation of the Constitution. To date, no reply has been received, more than one year after the request was sent. The Kurdish government seems reluctant to pursue the issue, saying it has other priorities. In addition, more than 42 women's organizations have tried to lobby Kurdish and central government officials in Baghdad to change the regulations. By and large, they have been entirely ignored.
This seemed then the perfect time to raise a test case in the courts. The government was in violation of the Constitution, after all, and therefore if persuasion would not work, then it was time for judicial compulsion. This met stiff resistance. I received a series of rather weak excuses from the women's organizations that I visited. Among these were that nobody had time or money to make such a case (even though I promised to work on outside funding), that no test case could be found (impossible to believe) and that the prosecutor's office would have to be involved (not true as a matter of Iraqi law). To date, after extensive efforts, I have been unable to convince anyone to even try to make a case to challenge this patently unconstitutional regulation, though I continue to make efforts in this regard.
It seems that the influence of the former government is still noticeable. No one would have ever thought to challenge laws or to question a Ministry employee about the application of those laws, because someone who did so would never have been seen again. Thus, my friends simply trusted the government official, far less trained in Iraqi law than they as Iraqi lawyers, and assumed he knew something about the Constitution that they did not. They never even thought to check the text. When told that this was a violation, even after complaining about it, they did not think there was any point in pushing the matter.
This sad incident reflects the gap between Iraq's laws and its practice. Much attention has been paid to the the Constitution, and to the fact that regulations can technically be challenged on the basis of it, but this example tends to show that in practice, the culture of the rule of law which is necessary to sustain such challenges is largely absent. Lobbying the government and asking it for assistance are seen as acceptable, but fighting it in court due to violations of its own Constitution is not. I can only hope that this will change and a new generation of Iraqis who have courage to challenge the government will rise from our law schools.
