Feminists and civil society activists in Iraq are calling once again for the withdrawal of a proposition made by two parliamentary commissions, the legal and the Awkaf, to re-introduce in a new form the previously rejected Ja’fari law.
On the pretext of reforming the Personal Status Code relying on the very polemical article 41 of the Constitution, a group of parliamentarians are willing to introduce a sectarian family law based on Shi’a jurisprudence breaking with the existing one that applies for Sunnis and Shi’as alike.
Questioning a unifying and a more egalitarian legacy
Challenging the Law n°188 of 1959 is not new in Iraq. The law includes legislation related to personal status such as marriage, divorce, custody and inheritance etc. constituting the Personal Status Code (also known as Family Law in other Arab countries).
They presented different propositions all of which introduce the possibility of a sectarian based PSC: Decree 137 proposed in 2003, Article 41 of the new Iraqi Constitution adopted in 2005 and more recently the Ja’fari Law proposition in 2014.
That last law is named after the main school of jurisprudence of Shi’a Muslims in Iraq the Ja’fari mazhab. It contains articles that can allow the marriage of girls from the age of 9 considered as sin al-Balagha (the age of maturity) in the Ja’fari jurisprudence.
It can also allow precarious forms of marriage in which women could lose basic legal protection. The Ja’fari law represents a rupture with the PSC.
On the one hand, it questions what is considered by Iraqis as a historical gain in terms of legal rights such as the minimum legal age of marriage fixed at 18 years old for both sexes, and the limit imposed on polygamy and unions contracted outside the civil court.
On the other hand, it also constitutes a rupture with the unifying and non-sectarian nature of the PSC that gathers both Sunni and Shi’a jurisprudence and thus is applied to both sects and renders possible intersect marriages.
More generally, it can also be argued that the push for a sectarianization of the PSC by the conservative Islamist Shi’a political groups who took power after the US-led invasion and occupation of Iraq, represent an even more radical political stance.
Through both a conservative reading of religious jurisprudence and a politico-sectarian definition of their national identity, these groups are also questioning the legacy of the anti-imperialist left that fought for the establishment of the PSC in the late 1950s.
In Iraq, the adoption of an openly pro-women’s rights PSC in 1959 was related to the political culture of the revolutionary elite that came to power through ‘Abd al-Karim Qasim (1914–1963)’s 1959 coup. It also signalled questioning the dictates of ‘ulemas and tribal leaders over private matters.
Crucially, the adoption of this code marked the beginning of women activists’ inclusion in the process of negotiating for their rights. As an example, Naziha al-Dulaymi (1923–2007), a gynaecologist by trade, and a prominent figure of the League for the Defense of Women’s Rights, was the first Iraqi and Arab female minister. She was a prominent communist and anti-imperialist activist who participated in the drafting of the PSC.
The text of Law no. 188 is clearly inspired by different schools of jurisprudence thus eliminating the differential treatment of Sunnis and Shias and allowing state-trained and appointed judges to rule on personal matters without consulting the ‘ulemas.
Thus, the PSC gathering both Sunni and Shi’a jurisprudence provided a legal frame applicable equally to all Muslim Iraqis. This makes the Law no. 188 a symbol of both the new nation’s unity beyond ethno-sectarian lines and the inclusion of women’s rights activists’ demands through their participation in the legislative process itself.
At a time when the political culture was marked by the anti-imperialist left, especially the Iraqi Communist Party, both ethno-sectarian unity and pro-women’s rights aspirations were linked to one another.
Activists of the Iraqi Women Network, as well as the Iraqi Women Journalist’s Forum, the Organization of Women’s Freedom in Iraq and prominent civil society activists firmly opposed all the measures that break with the unifying and relatively egalitarian nature of the PSC.
They have all expressed fears over both the adoption of a system based on a regressive and conservative reading of Muslim jurisprudence and the sectarianization of women and family issues in a context marked by social and religious conservatisms, sectarian conflicts, political instability and the absence of a strong unifying state.
Against a communal-based political system
Significantly, Sunni Islamists also opposed these propositions, siding instead with the preservation of a unified code that facilitates inter-communal marriage and unites all Muslim Iraqis. All these law propositions have been very unpopular among Iraqis, Sunnis and Shi’as alike.
Most Shi’a clerics also opposed it. The fact that most of the Shi’a population and clerics also oppose the sectarianization of the PSC shows that this issue does not divide Sunnis and Shi’as on strictly religious-sectarian lines, but rather on political-sectarian lines.
Only the conservative Shi’a Islamist parties that came to power in 2003 push for a sectarianization of the PSC which for them is synonymous with more autonomy and signal an affirmation of their politico-sectarian identity. It is clearly an opposition between divergent political models between a conservative and sectarian one and an egalitarian and unifying one.
The US-led invasion and the occupation administration have institutionalized communal-based identity as the basis of the Iraqi political system. This very polity constitute the raison d’être of the sectarian groups that came to power in 2003 since their political power would not be possible without a communal-based political system.
It is precisely this system that Iraqi feminists and civil society activists are combatting through their recent mobilizations in Tahrir square. The popular movement of protest that started in late July 2015expresses its revolt against the communal based post-2003 political system and the corruption and nepotism that characterizes the new political elite.
In claiming their demand of a dawla medenya (civil state), demonstrators also express their denunciation of the instrumentalization of religion in politics. In response to the use of a sectarian discourse by the Iraqi government in its war against the Islamic State organization in the North of the country, Iraqi demonstrators have insisted on the fact that corruption and sectarianism have created this terrorist organization and that only social justice and equality can adequately resolve the issue of terrorism and sectarian violence in Iraq.