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Iraq’s marriage and family rights are under threat

Iraqi children are seen in a town of Mosul after the village was retaken by Peshmerga forces from Daesh on October 31, 2016 [Ahmet Izgi/Anadolu]
Iraqi children are seen in a town of Mosul after the village was retaken by Peshmerga forces from Daesh on October 31, 2016 [Ahmet Izgi/Anadolu]

For the third time since the occupation of Iraq in 2003, the National Personal Status Law number 188 of 1959, which is still on the statute book, is at risk of being amended despite the fact that it is one of the best pieces of Arab legislation. The first time that this was planned was in December 2003, when Abdul Aziz Al-Hakim, leader of the Shia Islamic Supreme Council of Iraq, served as the President of the Governing Council for a month while under US occupation.

One of his “achievements” was issuing Resolution 137 to abolish the National Personal Status Law and refer all women’s and family affairs, in every aspect, from the civil courts to Islamic jurists, each according to their own doctrine. This was the first step towards institutionalising family sectarianism. The resolution stipulated that Islamic law be implemented with regards to marriage, engagement, eligibility, proof of marriage, prohibitions, marriage of non-Muslims, women’s marital rights — such as dowry, support, divorce, separation, Iddah (waiting period for divorcees and widows), nursing, custody, allowances and inheritance — and all other personal affairs, and that they be implemented based on the stipulations of one’s doctrine.

Al-Hakim also ordered that the law be put into effect immediately, forgetting that he was simply an employee of the occupation. After women’s rights organisations protested and a number of the “occupation’s feminists” — who were promised 40 per cent of the political seats — resorted to Paul Bremer, the American head of the occupation authority, he intervened and forced the Council to freeze the resolution.

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The second occasion was more detailed. The Shia Islamic Virtue Party, represented by Justice Minister Hassan Al-Shammari, proposed the Ja’afari draft law to the cabinet on 27 October 2013. The cabinet approved the draft, but the law wasn’t passed due to the strong opposition that was not limited to feminists this time, but included large segments of society, as well as human rights organisations within Iraq and abroad. It also included opposition from international organisations such as Human Rights Watch.

The draft bill consisted of articles that many believed paved the way for Daesh’s actions still to come, including lowing the female marriage age to 9 and male marriage age to 15, or younger with the guardian’s consent; legalising polygamy; and providing practical guidance for dividing time amongst four wives. This also included an article prohibiting Muslim men from permanently marrying a non-Muslim, meaning it gave men the right to temporary marriage; this is usually performed by a cleric who approves its duration, which may range from minutes to years. A specific amount is paid to the woman, while the cleric is paid a fee. According to one of the articles, women were to be deprived of financial support if a man’s needs were not met due to her being too old or too young.

The latest proposal to amend the law comes from the same people, but in a smarter version than its predecessors, as the precise details that provoked such anger, such as determining the age of child marriage, have been omitted. Instead, they are calling for a general enactment that will legalise all the amendments made in the past.

Parliament voted on the amendment on 31 October; it took just a few minutes to get approval. According to the Speaker of the Iraqi Parliament, Salim Al-Jabouri: “We discussed this issue, and there is no need to hear those who support and those who oppose, as we have heard both views.”

Salim al-Jabouri, Iraq's parliamentary speaker [file photo]

Salim al-Jabouri, Iraq’s parliamentary speaker [file photo]

The only objection was the lack of a quorum, to which Al-Jabouri said: “What is the objection? Count those who are present. You are already here; don’t leave, vote while you are all here, as we have already discussed the issue. I will repeat the previous points and remind you that this was already completely discussed.”

This shows us the voting process on legislation that aims to change the life of Iraqi citizens and the composition of family and society. Look at the so-called “parliament” that was allegedly formed in the kind of “democratic” manner seen especially in third world countries and governed directly or indirectly by a handful of hired employees.

The vote on the proposed amendments is facing protests and objections from women’s rights organisations, as on previous occasions. Demonstrations against the changes are being organised, as well as social media campaigns, with the participation of several parliamentarians. The objection to these changes is that a duly-amended National Personal Status Law would violate the constitutional provisions that “preserve women’s dignity, maintain the human rights of citizens, and preserve their national identity”, despite the fact that everyone knows the constitution’s sectarianism and weakness.

What are the proposed amendments? The two main changes are related to allowing Muslims to submit a request to the specialised Personal Status Court to implement Islamic law in personal affairs based on their own doctrinal affiliation, and the obligation of the court to “adhere to the rulings issued by the Shia Endowment Bureau and Sunni Endowment Diwan, depending on the husband’s doctrine.” The Shia Endowment Bureau is also obliged to answer the court’s requests for clarifications, according to the established Shia jurisprudence and fatwas of the scholars. In the absence of an established jurisprudence, the court will refer back to the supreme religious reference to which most Iraqi Shia traditionally go to in Najaf. Meanwhile, the Sunni Endowment Diwan must answer to the court based on established Sunni jurisprudence.

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In other words, and very briefly, what is being proposed is the transfer of the decision-making powers regarding personal status, which is the essence and foundation of personal freedoms, from the civil court, in accordance with law 188, to the clerics, with varying degrees of understanding, jurisprudence and reference, and passing them from one party to another, requesting “clarification”. This will also result in the imposition of the domination and establishment of abhorrent sectarianism that targets family unity, especially by determining the family doctrine based on that of the husband.

The new amendment proposal avoided the trap of stating the legally binding details and is similar to the employment of the concept of “Taqiya”, meaning “prudence”, whereby one takes the precaution of exhibiting or saying something other than what is practiced. This disrupted the opposition campaign, especially in terms of using the slogan of underage marriage, which is not actually explicitly mentioned in the new proposal, but which carries the possibility of indirect and direct harm to women, families and society.

It is enough to recount the sectarian parties’ governance, and the experience of living in the shadow of the religious “clerics” and their association with politicians to whom is attributed financial, religious and moral corruption over the past 14 years, for us to understand the magnitude of anger and panic caused by such legislation. If passed, this would authorise them to make life-changing decisions that affect the lives and freedoms of everyone, especially women. Regardless of whether their turbans are white or black, the mentality is much more dangerous and deeper than at first appears and, as such, deserves to be fought against by all.

This article first appeared in Arabic on Al-Quds Al-Arabi on 7 November 2017

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