The Personal Status Law and Political Tensions in Iraq

(Iraqis protesting proposed Ja’afari Law on March 8, 2014. Photo: Thaier Al-Suidani/Reuters)

Since the Iraqi Personal Status law was ratified half a century ago it underwent a lot of changes and additions, in an attempt to make it more complete. Personal Status Law is a term that applies to the rulings of the constitution related to marriage, divorce, alimony, will, inheritance in addition to other legal issues related to family.

This law was a fruit of replacing socialism instead of individualism after the revolution of 14th of July, 1958. Amongst the first orders of business were issuing a unified civil law to replace the Sunni and Ja’afari Sharia Law courts. On the 7th of February 1959, the Iraqi justice ministry formed a committee in order to compile a list of laws that were compatible with the principles of Sharia, what was accepted in the laws of Islamic countries, and what Sharia courts agreed with. The committee was able to formularize a law that was later known as the Personal Status Law Number 188 of 1959.

Despite the amendments on the law related to the rights of women, it remained a controversial issue and caused conflict between the state and its institution related to legislations on one hand and the Marje’ia, the Shia religious authority which continued requesting its abolishment, on the other hand.

After the fall of Saddam’s regime in 2003, it was evident that some essential changes were to be implemented to the law, including the replacement of the current laws with Islamic Sharia, especially in issues related to polygamy and legal separation. More specifically, it was the late Abdul Aziz Al-Hakim, the son of Grand Ayatollah Muhsin Al-Hakim during his chairmanship of the Governing Council for the month of December 2003, who aimed to abolish the Personal Status Law by issuing Decision Number 137 to implement the laws of Islamic Sharia. The decision was faced with strong opposition, which lead Paul Bremer, the head of the Coalition Provisional Authority at that time to veto the decision.

The attempts to abolish the Personal Status Law 188 returned in 2014, when Al-Fadhila Islamic Party, represented by the Minister of Justice Hassan Al-Shimmary, proposed the ‘Ja’afari Law’ to the Council of Ministers. It is worth mentioning that the Ministry of Justice was basing its formulation of the proposed law on Article 41 of the Iraqi Constitution which states that “Iraqis are free in their commitment to their personal status, based on their religion, sect, beliefs, or choices.” Parliament had a first reading of the draft law, but it did not pass a final vote due to the strong opposition it faced.

The Shia Ja’afari Personal Status Law stirred up a huge debate in political and social circles, with Iraqis expressing their fear that this law would cause the division of the Iraqi people, while others saw that it would cause damage to the interests of Iraqi women and represented a violation of their rights. Furthermore, demonstrations took place in several Iraqi cities asking the parliament not to pass it.

One of the issues of this law that caused the negative backslash was that it reduced the minimum age of marriage to nine years instead of 18 as set by the Personal Status Law, as well as forbidding the marriage of Muslim men to non-Muslim women except for temporary marriage.

Human Rights Watch also asked the Council of Ministers to retract the ‘Ja’afari Law,’ emphasizing the importance of protecting the legal framework of girls and women’s right in light of Iraq’s international commitments, regarding the proposed law as limiting women’s rights and facilitating polygamy for men, not to mention allowing girls to get married at the low age of nine. Human Rights Watch also warned that the proposed law violates The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which Iraq signed in 1986, in addition to the fact that it violates the Convention on the Rights of the Child, which Iraq signed in 1994.

It should be mentioned that all the attempts to abolish the current Personal Status Law have political interests and motivations. Those proposing it aim to create a public debate with a religious hallmark in the Iraqi street during election season, in order to redirect voter attitudes towards a specific direction with the hope to spark a similar debate inside the parliament, using any objection they face as an opportunity to pose as the “defenders of the rights of the sects” against those who attempts “to deny them.”

Those who are against the Ja’afari Law on the other hand claim that the current Personal Status Law covers the legal transactions of both Sunnis and Shia versions of Sharia Law as it was established first in 1959 based on the rules of Sharia Law and combined the different versions of Islamic schools, being subject to refinement since 1963 until the 1970’s.

After failed attempts to pass the law, the Proposed Law to Amend the Personal Status Law was another attempt to reproduce the Ja’afari Law in 2017. The amendment was proposed by an MP from the National Alliance, specifically the Citizens Bloc, attempting to resurrect decision 137 of the Governance Council in 2003 which demanded the abolishment on the Personal Status Law and the application of the Islamic Laws in regards to Personal Status based on the principles of the Ja’afari sect.

However, by looking closer at the proposed amendment, the negative impact was clear: it was a violation of separation of powers specified by the constitution in Article 47, and the independence of the judiciary as specified by Article 19 of the constitution since it connected the Personal Status Courts with the Councils of Fatwa in both the Shia and Sunni endowment. It also violated Article 14 of the constitution which specified that Iraqis are equal in front of the law without discrimination in gender, sects, ethnicity, nationality, colour, faith, sect, beliefs, opinion, or economic and social condition. Furthermore, it is also a violation of the CEDAW convention, and included in its recommendation the abolishment of Article 41 of the Iraqi constitution. Last but not least, it actually violated the decision number 1325 of the UN Security Council and the national plan to implement that decision which is related to changing any discriminative laws against women.

The amendment was ratified in principle on October 2017, but again caused huge outcry and was regarded as ’setback for Iraqi women.’ In December 2017 the Iraqi Parliament rejected the proposed amendments on the Personal Status Law after efforts by the Woman’s and Family Committee in the Iraqi parliament who made sure that the amendment passed in principle by the parliament before its first, second, and final voting in order to eliminate it early on. It should also be noted that Grand Ayatollah Sistani rejected passing the Ja’afari Law, with his two spokespersons and his office reiterating repeatedly that the Grand Ayatollah “stands in one distance from all Sunni, Shia, Kurdish, Eyzidi, and Christian political blocs and that he does not support anyone at the expense of the other.”

At the moment, local organizations concerned about the law do not debate the law publicly in fear that those who want to change it will use this as an opportunity to distort it, and hence prefer not to include it as a subject of their support campaigns. Their current role is limited to stand against any attempts to amend it.

The Personal Status Law was one of the best in the Arab region. However, it has fallen behind the laws of Tunisia, Egypt, Morocco and is in need for further amendments in the future in order to cope with the developments of the modern world and become more civil and inclusive towards all Iraqi men and women.