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Last October, Hassan al-Shimari, Iraq’s minister of justice, quietly submitted a draft law to the Council of Ministers for review. If implemented, the Jaafari Personal Status Law (so named because it is based on the Jaafari school of Shia jurisprudence) will fulfill a longtime goal of the country’s conservative Shia leaders: to exert religious control over critical family matters such as marriage, divorce, custody, and inheritance for the country’s Shia -- some 60–65 percent of the population. Shia advocates of the law, noting the decades of oppression they suffered under a harsh Baathist Sunni minority, contend that the bill would expand their freedom to practice their faith. Although that might be true for some Shia, for others it would drastically curtail their civil rights in the name of religion, and deepen sectarian tensions in society. It would also seriously undermine the rights of women and children by permitting unfettered polygamy, a Taliban-like restriction on women’s movement, child marriage for girls as young as nine, unequal divorce and custody, and an end to interreligious marriage.
Iraq’s existing personal status law dates to 1959. It includes several progressive provisions loosely based on various schools of Islamic law. It sets the marriage age at 18 for both boys and girls; prohibits arbitrary divorce; significantly restricts polygamy (including by requiring a judge’s permission and proof that the husband can treat both wives equally); and guarantees equal inheritance for men and women. Together, these provisions marked a considerable legal step forward for Iraqi women who went on to make notable educational, economic, and political strides under the secular Baathists. Religious leaders, however, resented the code from the outset because it forced religious conformity. Shia leaders, in particular, viewed it as yet another example of Sunni oppression.
Soon after Saddam Hussein, a Baathist, was overthrown in March 2003, Shia leaders moved to try to annul the personal status law. Attempting an end-run around the U.S.-led Coalition Provisional Authority (CPA), which was headed by L. Paul Bremer at the time, a group of conservative Shia leaders attempted to slip onto the books a clause known as Resolution 137. It would have replaced the existing 1959 law with a religious free-for-all on family matters: Each religious sect would have been allowed to set its own rules. In late December 2003, the Iraqi Governing Council, which was chaired by the influential Shia leader Abdul Aziz al-Hakim, took advantage of the American holiday lull to pass the measure behind closed doors. As word spread about Resolution 137, women’s groups and those who recognized the danger in its sectarian nature rallied. They held protests and press conferences and demanded that the U.S. authorities cancel the measure. Ultimately, Bremer pocket vetoed the bill, but Resolution 137 was a clear indication that Shia conservatives were determined to realize their vision of an Islamic state.
The writing of the new Iraqi constitution, overseen by the United States and approved in a referendum in the fall of 2005, became the next major Islamist-secularist legal battlefield. The process was highly contentious, with secular Iraqis determined to resist conservative Shia attempts to construct a theocracy. Unable to forge a consensus, the consitution drafters simply wrote a constitution with inherent contradictions. For example, the second article sets Islam as the official religion of the state and a “foundation source of legislation” and states that “no law may be enacted that contradicts the established provisions of Islam.” Yet the same article also holds that “no law may be enacted that contradicts democracy” or contradict the many individual rights and freedoms articulated in the constitution. Those include gender equality, which is affirmed in Article 19.
Proponents of the Jaafari bill are trying to exploit these very contradictions. Hussein al-Mura’abi, a Shiite leader who belongs to the same party as Shimari, argues for the law on constitutional grounds: "This is the core of the freedom. Based on the Iraqi constitution, each component of the Iraqi people has the right to regulate its personal status in line with the instructions of its religion and doctrine.” Unfortunately, he is correct: The seeds of the Jaafari bill were planted specifically in Article 41 of the constitution, which had been highly controversial from the outset. Much to the chagrin of women’s groups, Article 41 resurrected Resolution 137, stating that “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.” Recognizing the dangerous ambiguity of Article 41, women and human rights leaders over the years have demanded that the government abolish the provision but have not succeeded. Now, conservative Shia have made their first serious attempt to put Article 41 to use. The only surprise is that it took so long for them to try.
In some respects, the timing of the bill is curious. When it was first introduced last October, the Council of Ministers seemed likely to table it until after the upcoming parliamentary elections, scheduled for April 30. But the council’s approval of the bill on February 25, and the introduction of companion legislation establishing special religious courts, can be viewed only as political pandering to conservative Shia parties and voters in the run-up to the vote. Parliament must still approve the bill for it to become law, but the move has added sectarian tinder to a highly volatile, and increasingly violent, political situation.
But sectarianism is not the only problem. The shocking prospects of Iraqi child brides as young as nine, legally sanctioned marital rape, and restrictions on a woman’s ability to leave her own home have also caught headlines around the world. UN officials have denounced the legislation, as have civil society groups such as Human Rights Watch. And they should continue to do so. International bodies, including the United Nations and the World Bank, which recently signed a loan agreement with Iraq to finance important infrastructure improvements, should express their unambiguous concerns. The United States should also be unequivocal in denouncing the bill. Nongovernmental organizations such as Amnesty International and Human Rights Watch should continue to track the issue closely.
But the international community can only do so much. In Iraq, women’s groups and human rights activists have taken up the charge, as have some Sunni clerics who have spoken out against the law. But the women’s protests have so far failed to bring more than a few dozen people into the streets. For them, this must all feel very familiar. Despite the Iraqi constitution’s promises of gender equality, over the last decade, women in Iraq have been fighting a constant rear-guard action against the conservative Islamic forces that have tried to restrict their legal rights and impose new social restrictions on them in the name of religion. A campaign to force women to wear veils ebbs and flows but does not go away. The penal code is soft on violence against women, and many so-called honor crimes go unpunished. Rape and honor killings have even increased in parts of the country, as have rates of under-age marriage.
A 25 percent quota for women in parliament has brought women into the public sphere but with limited results. Many of those who are elected to parliament are relatives of politicians or are otherwise politically well-connected. Fewer than five percent of the women elected under the quota achieved enough votes to get there on their own; mostly, they are just there to help their party meet its requirements. Further, since parliament is dominated by conservative parties, most of the female politicians belong to those parties and generally adhere to their traditional stance on gender issues. Although a few are outspoken and some have become political role models for a younger generation of aspiring female politicians coming up through the ranks, there is no effective “women’s caucus” that could be relied upon to block the Jaafari bill.
Various international treaties to which Iraq is a signatory, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child, could prove useful for blocking the legislation, and opponents are already noting how those treaties would be violated. Although it is likely that the bill will be tabled simply to avoid further inflaming sectarian passions in the run-up to the election, the best outcome would be if opponents of the bill -- not only women’s groups but also human rights activists, moderate religious leaders, and those recognizing the highly divisive sectarian nature of the legislation -- come together not only to block the Jaafari bill but also to amend the constitution so that Article 41 does not remain a legal ticking time bomb. Given the precarious state of Iraqi politics at this time, that scenario does not seem likely now but should be high on the agenda for moderates and secularists over time. As violence escalates across the country, the discriminatory and deeply sectarian nature of the Jaafari bill is the last thing Iraq needs.