(By Noga Efrati*)
At the end of October 2013 the Iraqi Justice Ministry sent a draft law on Shiite (Ja’fari) personal status to the cabinet for approval and referral to the parliament. It stipulated that all cases of personal status — marriage, divorce, child custody, inheritance etc. – would be adjudicated according to Shiite jurisprudence. A debate sparked concerning the consequences for democracy and national unity.
Proponents claimed to be pursuing a democratic right of personal freedom, especially freedom of religion for the Shiite majority whose beliefs have been ignored in Iraqi legislation for decades. Opponents argued that the proposed legislation would violate human rights and formalize sectarianism within the legal system, further endangering Iraq’s fragile national unity. Some commentators linked the proposal to the upcoming general elections (April 2014) depicting it as a political maneuver.
Other analysts saw the proposal embedded in the conflict over whether post-Saddam Iraq should choose a secular or religious identity. The situation, however, is more complicated. The ministry move is but the latest round in a historic struggle over the terrain of personal status legislation that has resurfaced in post-Saddam Iraq. No less than about democracy, national unity, and human rights, it is about authority to determine laws governing personal status and their adjudication.
Already on 29 December 2003 the U.S.-appointed Iraqi Governing Council passed Resolution 137 abolishing Iraq’s lenient nonsectarian Personal Status Law. Resolution 137 met fierce resistance, spearheaded by Iraqi women politicians and activists, and was repealed two months later. However, this did not prevent further moves to undermine the PSL on the part of both clerics and religious politicians who sat on the committee charged with the drafting of a permanent constitution.
The provision that was ultimately adopted—Article 41 of the Iraqi constitution— stated that ‘Iraqis are free in their commitment to their personal status according to their religion, sects, beliefs, or choices, and this shall be regulated by law’. Though clearly providing for recourse to religious jurisprudence, no specific provision was made to preserve the PSL as an option. Thus, when a Constitutional Review Committee was formed in September 2006 human rights activist, jurists, and politicians demanded that article 41 be reconsidered. But to no avail.
Much of the discussion surrounding the Shiite proposal centers around controversial article 41 which communalizes personal status. Defenders of the proposal maintain that article 41 assures Iraqi citizens the right to address their personal status issues according to their religious and sectarian beliefs in religious courts, adjudicated by clerics. The proposed Shiite PSL, they stress, would not annul the existing PSL or prevent others from opting to civil courts, to be adjudicated by civil servants. It thus would not infringe on citizens freedoms, undermine democracy, or increase the sectarian rift in Iraq.
Opponents, however, claim that the proposed legislation is unconstitutional. Article 41, they say, is in contradiction with the constitution’s, article 14, which states that “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.” Unlike the 1959 PSL which endeavored to move toward gender equality, the proposed law removes all limitations placed on polygamy; it opens the gates for child marriage; it gives the husband right to sexual relations with his wife “any time he wants,” to forbid her from leaving their matrimonial home, and to withhold financial support for disobedience. Moreover, as the Constitutional Review Committee has not reached a decision regarding the constitutionality of article 41 the Ministry of Justice has no authority to introduce a law based on it.
Analysis of the conflict surrounding the Shiite proposal however, must consider its place in the continuum of a historic struggle. The 1959 legislation marked the apex of a struggle begun during the Hashimite period (1921-1958) between the religious establishment (encompassing both Sunni and Shi’i clerics) and the secular government, over the authority to make laws governing personal status and who should be entrusted with adjudication. Until 1958, clerics fearing that codification and transferring family matters to state courts would marginalize the religious establishment managed to deflect legislation efforts. But with the 1959 law the realm of personal status passed to the hands of the state and its civil servants.
Resolution 137 of 2003 and article 41 turned the tables again. It was no coincidence that Resolution 137, abolishing the 1959 PLS, was passed under rotating chairman ‘Abd al-’Aziz al-Hakim, a Shi’i cleric (who headed the Supreme Council for the Islamic Revolution in Iraq) and son of Grand Ayatulla Muhsin al-Hakim. The latter was a long-time opponent of the codification of personal status laws during the Hashimite period.
The 1959 legislation also created, for the first time in Iraq’s history, a framework which legitimized women’s participation in the legislative process concerning family matters. And indeed women’s rights activist played an important role in pushing for and shaping the PSL both in 1950s and the 1970s. Article 41, albeit without clearly stating it, allowed the 1959 PSL to remain a la carte, but this article requires implementing legislation and the 1959 law may be unfavorably amended or erased. Thus any new personal status legislation based on article 41, as with the proposed Shiite PSL, threatens to undermine advancements for which women’s rights activists have struggled long and hard.
When considering the conflict surrounding the Shiite PSL proposal however, no less at issue may be the internal Shiite power struggle over religious leadership in Iraq.
When the Minister of Justice, a member of the Islamic Virtue Party, announced the new legislation he claimed it was supported by Iraq’s Shiite religious leadership. Indeed an outspoken supporter of the proposed legislation was Grand Ayatullah Muhammad al-Ya’qubi, head of the Islamic Virtue Party. However, the preeminent Grand Ayatullah Ali Sistani was not consulted. His aides emphasized that it was Sistani who had insisted that the 2005 constitution stipulate that Iraqis are free to live by their own rules of personal status, so that the Shiites in Iraq would not be obligated to follow beliefs other than their own. Furthermore, he continuously works in the appropriate manner to achieve the approval of parliament for laws and regulations away from the media and without confrontation. Anyone familiar with the current parliament, they added, should have known that the major blocs are not ready to ratify a Shiite PSL.
The storm surrounding the proposed Shiite PSL led to its shelving until after the upcoming elections. If the three major ethnic and sectarian blocs – Shiite Muslims, Arab Sunni Muslims, and Kurds – continue afterward to run the country, but with a larger or more united Shiite bloc, passage of a Shiite PSL is probable. However, because of deep splits within both Shiite and Sunni blocs new alliances may be formed on the basis of common political objectives, rather than on ethnic or sectarian grounds, hindering future efforts. In any case, another bout of debate will follow.
The Shiite religious leadership in Iraq appears determined to pursue the communalization of personal status laws, to entrust this realm to the hands of the religious establishment, and to secure their democratic right to religious freedom. Equally adamant, jurists, human rights activists, feminists and nationalist politicians are determined to prevent such a move. They fear this realm would slip from their hands, risking the loss of safeguards concerning the rights of women and children, and fragment Iraqis into legally separated ethno-sectarian entities.
The terrain of personal status legislation in Iraq has historically been and continues to be fervently contested. The debate over the Shiite PSL, the eventual passage of which is highly probable, reflects power struggles and competing understandings of democracy, the role of Islam, and national unity. While Ja’fari rules do not have to be interpreted in contradiction with women and children’s rights and legal pluralism does not have to spell theocracy, with today’s violent sectarian conflict the communalization of the personal status realm would no doubt further national disintegration.
* Noga Efrati is the author of Women in Iraq: Past Meets Present, Columbia University Press, 2012. She is currently a Research Fellow at the Harry S. Truman Research Institute for the Advancement of Peace, The Hebrew University of Jerusalem.
Related video added by Juan Cole: