Iraq’s Lost Century

Shia religious authorities, in collaboration with their political allies in the Iraqi parliament, seek to redefine Iraq’s personal status law according to religious rules. On July 29, The Coordination Framework, the largest bloc in Iraq’s parliament, introduced a controversial bill to amend the Personal Status Law of 1959 (N0.188). This proposed amendment would mandate that Iraqis, upon marriage, choose either Shia or Sunni jurisprudence to govern all personal status-related matters within their marriage. This change creates legal uncertainty by replacing predictable, codified law with premodern, uncodified Islamic jurisprudence. Moreover, it disproportionately affects women, especially by facilitating early marriages.

The bill was read in parliament on August 4, triggering widespread protests across Iraq. In response, a coalition of activists, politicians, and human rights organizations mobilized protests throughout the country. Iraq has become deeply divided over this amendment, with clear lines drawn between supporters and opponents. The debate has also dominated social media, where the hashtag “No to Amendment of Personal Status Law” has gained significant traction.

The opposition to this amendment is not confined to internal dissent. Human rights organizations, international institutions, and several Western countries have expressed strong concerns about what they view as a legislative step backward, particularly regarding women’s rights in Iraq. The amendment is seen as a threat to the unified nature of the law and a potential erosion of individual freedoms, especially for women. In a striking move, the legal department of Iraq’s Ministry of Higher Education issued an order banning law professors from participating in television or media interviews regarding the recent legal and legislative controversy. This action has raised further concerns about transparency and the silencing of critical voices in the ongoing debate.

This blog delves into this latest legislative development, which has remained underexplored in academic circles. The central thesis is that, if the amendment passes, it will set Iraq’s family law system back by a hundred years. Such a shift would disproportionately impact women’s fundamental rights, exacerbating the challenges they face under an increasingly religiously influenced legal system.

Background

Iraq’s legal system traces its origins to the Ottoman Empire, which blended Islamic jurisprudence with civil law. After World War I, Iraq became a British mandate, and despite the collapse of the Ottoman judiciary, British authorities sought to maintain Ottoman law, dividing Iraqis by sect and allowing religious authorities to control personal status matters. There was no requirement for these cases to be handled in state courts, and civil judges often deferred to Islamic jurists, particularly when navigating Sunni-Shiʿi legal differences. After the British mandate ended, various governments sought to unify personal status laws.

In 1959, the revolutionary regime enacted the first Personal Status Code (Qānūn al-Aḥwāl al-Shakhṣiyya), which applied nationally except for Christians and Jews, who retained their own courts. However, Shiʿi leaders consistently opposed the imposition of non-Shiʿi law. Following Saddam Hussein’s fall, Shiʿi leaders, particularly Abd al-Aziz al-Hakim, pushed to repeal the Personal Status Law through Decree 137 in 2003, seeking to give religious authorities greater control. However, strong opposition from women’s rights groups, liberals, and Kurds, alongside civil society protests, led to the decree’s revocation by US civilian governor Paul Bremer.

Reviving the old agenda: Iraq’s new constitution and the shadow of Decree 137

The post-Saddam Hussein era highlighted the urgent need for a new constitutional framework, especially after the Coalition Provisional Authority (CPA), the transitional government of Iraq from 2003 to 2004, abolished the 1970 Provisional Constitution. The new Constitution of Iraq (al-Dustūr al-‘Irāqī) was subsequently drafted with significant input from U.S. advisors and was approved by a national referendum in October 2005. This new constitution formally recognizes Islam as the official religion of the state and establishes it as a foundational source of legislation.

The current push for amendments to Iraq’s Personal Status Law can be traced back to the negotiations surrounding Iraq’s post-2003 constitution. During these negotiations, political bargaining between the United States and powerful Shia factions resulted in a significant concession: the inclusion of a provision addressing personal status law. Despite objections from Kurdish representatives, Article 41 of the new constitution granted the long-standing demand of Shia leaders by stating: “Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law.”

This provision effectively echoes the intent behind Decree No. 137, which was issued in 2003 by Abd al-Aziz al-Hakim but later revoked due to widespread opposition. Since the constitution’s adoption, Shia political leaders have repeatedly attempted to amend the 1959 Personal Status Law (No. 188), citing Article 41 as the legal basis for doing so. However, these efforts were thwarted due to political resistance and the lack of a parliamentary majority. Now, with the Shia bloc holding a majority in parliament, the dynamic has been shifted. On Monday (16.09.2024), the Iraqi Parliament concluded the second reading of the proposed amendments to the Personal Status Law, which are heavily supported by the Shia faction. A final vote is imminent, and the bill is likely to pass.

Key controversies in the proposed amendments

The proposed amendments to Articles 2 and 10 of Personal Status Law No. 188 introduce significant changes to the applicable law and official authority regarding marriage in Iraq. One of the most controversial aspects of these amendments is the expanded choice given to Iraqi individuals regarding the legal framework governing their marriages.

Under the proposed legislation, Iraqi men and women seeking to marry would have the option of applying the provisions of Personal Status Law No. 188 of 1959 or the provisions of either the Shi’a or Sunni Islamic school of law. This introduces a degree of flexibility that is not currently available, allowing individuals to choose a legal framework that aligns more closely with their personal beliefs and cultural preferences.

However, the proposed amendments also raise concerns regarding potential disparities in treatment between spouses. In the event of a disagreement between the spouses regarding the applicable school of law, the marriage contract would be deemed to have been concluded according to the school of law of the husband. This provision has been criticized for perpetuating gender inequality and potentially disadvantaging women in certain circumstances.

Furthermore, the proposed amendments stipulate that the Personal Status Court shall validate marriage contracts concluded by religious clerks and authorities. While this may be intended to streamline the marriage process, it also raises questions about the role of religious institutions in legal matters and the potential for conflicts of interest.

The amendment before the Iraqi Constitutional Court

The deep divisions within the Iraqi Parliament over the proposed amendments prompted a formal request for the Iraqi Constitutional Court to interpret Article 41 of the Constitution. In its decision No. 219/Federal/2024 dated 17 September 2024, the Federal Court held that the Iraqi Constitution granted the Iraqi people the right to regulate personal status according to their religion, faith or belief according to their personal choices. Thus, the exercise of this right may not be restricted or limited.

The Court held that the text of Article 41 is clear and unambiguous, requiring no further interpretation. It grants Iraqis the freedom to conduct their personal status affairs according to their religious, sectarian, or personal beliefs, without any restrictions or limitations. Additionally, the Court reaffirmed the protection offered by Article 46, which prohibits restricting or limiting constitutional rights and liberties, except by law, and only insofar as such restrictions do not infringe upon the core essence of the right or freedom.

While the Court’s ruling did not explicitly address the proposed amendments, its interpretation implicitly supports their constitutionality. By affirming the primacy of individual religious freedoms in matters of personal status, the Court reinforces the principle that such laws must be consistent with the broader constitutional guarantees of personal autonomy and religious liberty.

Conclusion

In the majority of Middle Eastern jurisdictions, family law is predominantly determined by the religious affiliation of the parties involved. However, in 1959, Iraq diverged from this model by enacting a unified Personal Status Law, replacing its fragmented family law system with a state-centered legal framework. As outlined in the rationale behind the 1959 law, the Iraqi legislature aimed to foster stability in family life and safeguard women’s rights. If the proposed amendment is passed, Iraq’s family law system will revert to a fragmented legal framework akin to the one in place a century ago, in 1921. This legislative reversal would lead to legal uncertainty, replacing predictable, codified law with premodern, uncodified Islamic jurisprudence, which may disproportionately affect women, particularly through the facilitation of early marriages. Under the current law, a woman can be married only if she is over 18 years of age as a general rule, whereas under Shia jurisprudence, a minor girl could be married at the age of nine. This proposed shift in the legal age of marriage represents a significant regression in the protection of women’s rights within Iraqi society. With respect to a woman’s right to inherit from her deceased husband, under the existing Law No. 188 of 1959, she is entitled to her share of her husband’s inheritance, encompassing both movable and immovable property. However, under Shia jurisprudence, which would govern under the proposed amendment, a woman could only inherit her husband’s movable property, excluding real estate. This alteration constitutes a fundamental difference, significantly diminishing women’s economic standing and financial entitlements.

Moreover, the amendment would empower religious authorities, instead of the judiciary, to administer personal status law, eroding state judicial oversight. Such a shift not only undermines the unified legal system established in 1959 but also violates Iraq’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, which Iraq ratified in 1986 and 1994, respectively. The proposed amendment threatens both women’s rights and the integrity of Iraq’s legal commitments, leading to significant legal and social ramifications.