Why can women not be appointed as judges in the Islamic Republic of Iran?

Introduction

Women cannot become verdict speaking judges in the Islamic Republic of
Iran. Why?

Is this rule based on the Islamic treatment of women and their role in society or is it furthermore an adaptation of traditional rules?
Women’s rights in Islam seem to be interpreted and misinterpreted, perhaps more than in any other religion.

This might be because of the lack of knowledge of insiders and outsiders of the religion, as well as the political representation through the Middle Eastern countries, with the starting point of the Islamic Revolution in Iran in 1979.

The question whether women could be appointed as judges has become one of the main controversial issues, since numerous clerics believe that this would be against the true meaning of the Quran. In Iran, while women are allowed to listen to civil cases as judges, they are prohibited from becoming the verdict-speaking judge in civil courts and absolutely prevented from participating as judges in criminal courts.

In the Persian Empire, the role of women and their rights was historically determined by their relationship with the king.

While during the Achaenemid Dynasty, the king was the sole source of authority, legislature and executive branch simultaneously, women enjoyed economic independence. They were involved in state affairs and had decision rights in numerous situations (wealth, marriage, and occupation).

Women had the opportunity to choose their profession and stay financially independent, which indicates that regardless of their family status they were not separate living creatures behind high walls, just kept for child bearing.

Through the Achaenemid Empire, Persian empresses, such as Pourandokht and Atoosah, daughter of Cyrus I., were accepted as leaders and rulers of the nation.

There was unequal treatment of women under the Qajar dynasty in effect between the World Wars. This caused Iran to be seen as a backwards and unreasonable country in regards to human rights and especially women’s rights.

The major date for re-evaluating women’s rights in Iran between the World Wars is 1928: Reza-Khan, the ruling shah from the Pahlavi dynasty decided to attend a state event with his wife and his daughters without “higab”, the veil.

In 1979, another major change in the role of women role occurred: through the Islamic Revolution. Women were forced to put on the hijab and they were guaranteed to be treated equally on the Islamic level.

But soon after the revolution, promises given to women were taken back. While many women did not mind the dress-restriction, conservative clerics imposed Islamic law mechanically.

The Islamic government required not only the hijab for women, but went further and forced all female members of the courthouses out of their jobs.
Even though women had a tremendous role in the Islamic revolution, they were only given supportive roles and no leadership positions in the governmental institutions.

Hence, women started fighting for their own rights and requested a reform of the Islamic movement.

A Persian woman’s magazine published that, due to the wrong interpretation of Islamic verses, women rights were suppressed and improperly denied.

Islam tried to reject the notion that women were objects for the male society. Instead women are described as the nurturer of the public and the protector of humankind.

Arabic society would call “son-less” families abtar, meaning the ones who will not continue. But Islam rejected such a notion. As an example, when Prophet Muhammad’s son died at the age of two, the Sure Kauthar (108) was revealed, which secured the continuation of the family through female descendants.

At a time when Arab society would bury their daughters alive, the Prophet would honor women in their role as society leaders.

The issue is whether the appointment of a woman to become a judge in the
Islamic Republic of Iran would contravene (a) Iranian law (b) Islamic law.
The Constitution of the Islamic Republic of Iran is strictly based on the Quran
and states the equality of the genders in two articles.

i. Art 20 of the Iranian Constitution

ii. Art 21 (1) of the Iranian Constitution

i. Sure 4 (Nessah):34

ii. Sure 2 (Baqarrah): 228

Under the rule based on hadith, there are different schools of thought.
An isolated ahad hadith requires the restatement of two people only,
and is not accepted by the majority of an Islamic group.

Abu Bakr was one of the closest followers of the Prophet, who wrote his hadith twenty-five years after the Prophet died. He states in his hadith that the Prophet was outraged when he saw that a Persian king’s daughter was ruling over the Persian nation. Furthermore, he declares that the Prophet told his followers that no nation would be able to grow under female leadership.

An indefinite (mutawatir) hadith is told by many people and is accepted by
most Moslems within a sect.
Sayidinah Ali was another follower of the Prophet. He cites in his hadith that the treatment of women reflects one’s own respect for humankind and for God’s creatures.

The question of female leadership came up mainly after the women’s liberation movements of the 20th century.
According to Article 20 of the Iranian Constitution women and men are to be treated equally. However, the article states that this treatment should be according to the law and does not mention that the genders have equal rights.

The meaning of law is interpreted further in the sentence “… in conformity with Islamic criteria”, which means that the treatment is only equal and the basic principles are only considered in a given scope. This interpretation however, is not the one given by the Quran, but is interpreted in the Preamble of the Islamic Constitution.

“The family is the fundamental unit of society and the main center for the
growth and edification of human being. … 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.”

The contradiction in the article becomes clear when it is read parallel to the preamble. Sure enough the rights are given, but the woman is considered in her high role of motherhood and mentor for her family society.

On the other hand, the preamble 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.”

Hence, even though it is not directly stated, the Islamic Constitution wants to give women more rights than they had during the Pahlavi dynasty and claims to go back to the “true” Islamic rules. This can be supported by the requirements the Constitution sets for leaders in general:

Article 109 [Leadership Qualifications]

While the requirements concentrate on the professional and social ability of a candidate, a gender requirement is not mentioned. The best example of the misinterpretation of this article is given in Shirin Ebadi’s case, who states that after the revolution she was not able to be a judge, based on the rule that women were too emotional and hence, not able to judge fairly. She and thirteen female judges were suspended from their work and were given clerical roles at the courthouses.

Article 21 (1) also states the “…Islamic criteria…” as the main measurement for gender rights. It even continues by stating that women should be able to develop and be supported in their role as “mother” and “raiser of humans”.

Setting the measuring stick with the Islamic Request personal prophetic word criteria leaves a tremendous option for interpretations. These interpretations are usually done by the more powerful people in the political society, which are men and hence, read to their own liking.

One could argue that to become a presidential candidate, one has to be “rejal”, which means in Persian “mature and wise “, but this is interpreted by the higher power as a male person.

Furthermore, a gender requirement could be seen in Art 107: “… qualifications mentioned in Article 109, they shall elect him as the Leader.”. This cannot be supported as an argument, since the Persian language does not distinguish
between the 3rd person singular, and hence, him is just a mistake of the English translation.

The Iranian government claims that there are female judges in the country, however, not revealing that they act as “Inquiry Judges”: paralegals, legal secretaries and legal assistants.

Before the islamization of the Middle East, women in that region had basically no rights. They were treated as slaves in their own homes and were not considered as human beings. 30 For the first time in religious history, the Quran mentions women, addresses women directly, and dedicates two chapters to them. One sureh is named Nessah, the Arabic word for women, another is called after Maryam, the mother of Jesus.31 Nessah draws distinction between men and women and reveals their different social roles (Nessah: 1), inheritance law (Nessah: 11), and their positions in family law. (Nessah: 23-25).32

But Nessah is not the only verse speaking about women. Furthermore, it should be seen as a summary of the entire “female” rights in the Quran.

Several unique women are mentioned: The wife of Noah, the wife of the Pharaoh, and Maryam, the mother of Jesus are cited as samples of believers (Ahqaf: 10-11) and the wife of Egypt’s Aziz who fell desperately in love with Yusuf (Josef) is mentioned (Yusuf: 2) as a non-believer who converted.

The Nessah verse is misinterpreted and read to mean that

o men are superior to women and

o have authority over them.

This is supported by the argument that men are qawwamuna, which is translated as superiority over women. Part of the sureh, which states that “some are preferred over others”, is interpreted as men are preferred over women.

However, the Quran does not support this interpretation. Furthermore, it indicates equality among the genders by bringing supporting sureh Al-Taubeh: 71, which clarifies the meaning of care and responsibility. “…for the believing men and for the believing women, they are guardians of each other…” and Al-Taubeh: 72 “… to the believing men and the believing women…” Al Taubeh states that women and men are awliyya, meaning supporters of each other and gives rules for commitment to both of them.

It is also argued that the superiority of men can be seen in the second part of the verse “… what they spend of their property (for the support of women) …”. But this argument can not be supported. Before the Quran was written, women did not work, and hence did not have the financial capability to survive. Therefore, judges at that time did not take the ‘new’ changed social status of women into account and continued seeing the man as financial head of the family.

Additionally gender equality can be supported by Sure Ahzab: 34-35, where
both men and women are addressed.

“Surely the men who submit and the women who submit… believing men and
believing women…obeying men and obeying women… truthful men and truthful women…humble men and humble women…”.

Afsane Majmabani, an Iranian woman in the judicial field, claims also that she was forbidden to follow her career as a judge. She argues that the Quran does not support this treatment, since the Quran itself refers to female judges.36 The best example is Belquis the Queen of Saba, whose duties did not only include to rule over her nation in Marib, but to set verdict in legal cases. Sure Al-Naml: 23 also mentions a visitor entering the kingdom and citing at a later date: “Surely I found a woman ruling over them… and she has a mighty throne.”

Baqarrah: 282 states that the testimony of two women equals that of one
man, and explains this requirement with the following “… so that if one of them should make a mistake, the other should remind her.”
This verse is understood as the main source of women’s lack of intellect and their incapability to judge on their own.

This interpretation of the verse is taken out of its context. Given the time and location of Quran’s revelation, this statement would have been a very progressive step for women. As we could see from the history of the Islamic development, it is clear that woman did not have any rights before Islam.38 While Islam did give them numerous rights and did not question their intellectual capability; they were unfamiliar with the world outside their own homes and did have little knowledge about society.

Furthermore, this interpretation against women does not consider the fact that first, women were allowed to be witnesses, and second that the Prophet’s first wife,
Khadijah, was one of the only business women of her time; nevertheless, she hired male workers and trusted their business sense.

Neither could this be supported by Ahzab: 33, which requires two women witnesses verses one man. This as well has to be understood in the historical frame. This verse was written at a time, when Aisha was accused of cheating on the prophet. She had been alone in the desert and returned with a young man, who had rescued her, hence people immediately started rumors.

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