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After the
departure of the Shah from Iran on
16 January 1979,
the leader of the Revolution Ayatollah Khomeini returned to Iran from years
of exile on
1 February 1979.
In ten short days the army surrendered and the Revolutionary forces assumed
power on 11 February. Within a few weeks of the Revolution Ayatollah
Khomeini the leader of the Revolution called a national referendum. The
question put to the nation was 'Islamic Republic Yes or No?' At that early
stage no one had discussed what an Islamic Republic entailed. The people
were riding high on the euphoria of their victory over a 'despotic' ruler
and voting 'No' was not an option. Therefore on the
1 April 1979,
after 2500 years of monarchist rule, with a mandate of 98% Iran became an
Islamic Republic. The clerics set to draw up an Islamic Constitution. It
came into effect on 3 December 1979 and was amended on
28 July 1989.
According to this Islamic Constitution, all the laws
in Iran have to conform to the interpretation of the Islam according to the
Shi’a believers of the 'Velayat Motlagheh Faghih' sect. This forms part of
the duty of the Guardian Council.
The Islamic Republic governance structure is firmly
based on the belief of the Shi’a sect who accepts the fundamental principles
of 'Velayat Motlagh Faghih' - the Absolute Rule of the Religious Jurist
(Absolute Supreme Leadership)
with the Vali Faghih as the head of State.
To
explain further world Muslims are divided into Sunni and Shi'a – around 90
percent of world Muslims are Sunni. The believers of the Shi’a faith divides
into five sects one of them being the followers of twelve Imam Shi’ism. This
group further divides into four one of them being the Usoli sect. The Usoli
followers of the twelve Imam sect themselves further sub divide into three
one of which is the followers of the Velayat-e Motlagh-e Faghih. The twelve
Imam Shi’a followers believe that the twelfth Imam, Mahdi, is the Saviour.
The death of the twelfth Imam has never been recorded and it is believed
that he has disappeared to reappear on Judgment Day. According to this group
the ‘Vali Motlagh Faghih’ or the Absolute Supreme Leader is his
representative on earth until such day thus giving the Absolute Supreme
Leader and the regime divine legitimacy.
International
Obligations
Iran was a signatory to three of the UN Treaties
before the Islamic Revolution of 1979. In 1981 a new treaty came into force
- Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) - which to date the Islamic Republic of Iran has not ratified on the
grounds that certain Articles in the treaty are contrary to Islam. This is
an interesting point to note since other Moslem countries have ratified the
treaty. There seems to be no effort either in obtaining information on
comparative laws in an effort to interpret Islamic Law (Sharia') in
harmony with international human rights standards.
The
Convention defines discrimination against women as ‘any distinction,
exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men
and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field’.
The Islamic
Constitution
Article 4 of the Islamic Constitution
states:
“All civil,
penal financial, economic, administrative, cultural, military, political,
and other laws and regulations must be based on Islamic criteria. This
principle applies absolutely and generally to all Articles of the
Constitution as well as to all other laws and regulations, and the fuqaha'
of the Guardian Council are judges in this matter.”
Article 19
states that ‘All people of Iran, whatever the ethnic group or tribe to
which they belong, enjoy equal rights; and colour, race, language, and the
like, do not bestow any privilege’. Missing from this list is the mention
of gender and religion. This means that either could bestow
privilege or discrimination as is clear from the rest of the Islamic
Republic's constitution.
Article 20
states: 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.
There are two
points to note on reading this Article:
As already
mentioned, according to the Islamic Constitution, the majority decision of
the 'Guardian Council' or 'Shora-y-Negahban' determines the interpretation
of the Islamic law. Because of the patriarchal nature of Islam, this is
therefore equal application of unequal laws. To explain this further,
Islam values women as half of that of men. Her blood money (Diyeh laws) is
half of his. Consequently, if a woman has been murdered and the
perpetrator is to be executed (Qesas laws), the extra value of his life
must be paid to his family by the victim’s family before sentence could be
carried out; her testimony is worth half of his, even if she has been the
sole witness to a crime.
Consequently, according to Articles 19 and 20 of the Islamic
Constitution, on one hand, equality in the eyes of the law does not
include gender and religion, and on the other hand, the equal protection
of the law divides men and women into groups, and then only in the eyes of
Islamic criteria as interpreted by twelve Islamic jurists of the Guardian
Council.
Article 21
states: The government must ensure the rights of women in all respects, in
conformity with Islamic criteria, and accomplish the following goals:
create a
favourable environment for the growth of woman's personality and the
restoration of her rights, both the material and intellectual;
the
protection of mothers, particularly during pregnancy and childbearing, and
the protection of children without guardians;
establishing
competent courts to protect and preserve the family;
the
provision of special insurance for widows, and aged women and women
without support;
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.
Particularly
on Women, the Introduction to the Islamic Constitution states:
‘Through
the creation of Islamic social infrastructures, all the elements of
humanity that served the multifaceted foreign exploitation shall regain
their true identity and human rights. As a part of this process, it is
only natural that women should benefit from a particularly large
augmentation of their rights, because of the greater oppression that they
suffered under the old regime.
The family
is the fundamental unit of society and the main centre for the growth and
edification of human being. Compatibility with respect to belief and
ideal, which provides the primary basis for man's development and growth,
is the main consideration in the establishment of a family. It is the duty
of the Islamic government to provide the necessary facilities for the
attainment of this goal. This view of the family unit delivers woman from
being regarded as an object or instrument in the service of promoting
consumerism and exploitation. Not only does woman recover thereby her
momentous and precious function of motherhood, rearing of ideologically
committed human beings, she also assumes a pioneering social role and
becomes the fellow struggler of man in all vital areas of life. Given the
weighty responsibilities that woman thus assumes, she is accorded in Islam
great value and nobility:
'And of
His signs is that He created for you spouses of yourselves, that you
might repose in them, and He has set between you love and mercy...
'(The Qoran 30:21)
'And
whoever does a right deed, be it male or female, believing, We shall
recompense them their wages according to the beast of what they do.'
'...
Women have such honourable rights as obligations, but their men have a
degree above them... '(The Qoran 2:228)
'Do not
charge women with matters beyond that which personally concerns them;
for woman is a flower, not to be burdened with administrative duties.'
(Nahi al-balaghah, Kutub, No 31 - The teaching of Ali the first Imam
of the Shia' Moslems)’
In Article 21,
the legislator stresses the role of the woman as a mother and uses vague
undefined words, such as ‘worthy mothers’, to describe how she should be
judged. For example, an unworthy mother is one who remarries while she has
the custody of her child. On her marriage she has to give up her child
(Article 1170 of the Civil Code) whom she can only keep until age seven in
any event (Article 1169 of the Civil Code).
The
introduction to the Islamic Constitution states clearly the Islamic thinking
behind the laws and how women are to be treated; she is a flower not to be
burdened by administrative duties, she should not be burdened with that
which does not concern her; men have a higher degree in the society. How
this interprets into the every day lives of Iranian women has been very
contradictory. Women who, for example, pre-revolution sat in courts as
judges, were demoted to court secretary. After twenty seven years of
fighting women have been allowed back into the courts, but only family
courts, and only where it is expedient for a woman to hear the evidence. The
fact that men have a higher place in the society is translated into women
not being allowed to run for high office or hold high decision making
positions. The majority of the women MPs come from a strict religious party
who actually accept these restrictions, and the female advisers to President
Ahmadinejad are no different.
For example
the person
in charge of Centre for Women and Family Affairs – an advisory office to the
President - stated on 31 May 2006 that while she was in charge, the Islamic
Republic would never join CEDAW for it contained Articles that were
un-Islamic.
Yet girls form the higher proportion of university placements. The battle
between the strict religious laws and values on one hand, and the strength
of the women’s movement in Iran on the other hand, are constantly testing
each other.
Hardline
clerics hold key positions in the Iran who reject the rights of women. From
their point of view, women's rights and human rights activists are no more
than rootless seculars, infatuated with modernity and Western permissiveness
whose intended reforms are bound to endanger the foundations of religion,
culture, family and society.
To them,
modernising models presented by reformists using such 'Westernised' concepts
as feminism, freedom, equality and individualism amount to a challenge in
defiance of Islam that can only undermine the structure of the Moslem family
system and ultimately the Moslem nation itself.
Under
ex president
Khatami, the reformists were not able, or willing, to overcome the attitude
of extremist hardliners who base their arguments on ancient interpretations
of the Qoran.
As a result,
the two approaches, one supporting suppression of women (the hardliners) and
the other talking about moderating that suppression (the reformists), have
continued to co-operate in all areas, especially in the legislation of laws.
At present, the hardliners hold key positions such as the presidency, the
majority in Parliament and the Guardian Council.
However, the problem for the Islamic regime still remains.
The Iranian women have not accepted the discriminatory laws and remain and
fight to remain active and contributing members
of the society.
For this reason the urban society in particular has remained resistant to
the preferred mental/symbolic and physical segregation of the regime, and
women are and have been fighting a hard battle for their equal rights.
The Islamic Constitution of the Islamic Republic adopted on: 24 Oct
1979; Effective since: 3 Dec 1979; Amended on: 28 July 1989
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