A proposed law in Iraq would restrict women’s rights by permitting girls as young as nine to wed. If passed, the Ja'afari Personal Status Law (whose name is derived from Imam Ja'afar Al-Sadiq, the sixth Shi'ite Imam and the founder of the Ja'afari school of jurisprudence) will codify marriage, divorce, inheritance and child custody procedures under religious law. It would apply to Iraqi Shi'ites, who make up the majority—60–65 percent—of the country’s population. The draft was put forward by Justice Minister Hassan Al-Shimmari, a member of the Shi'a Islamist Virtue Party, and was approved by the Council of Ministers on February 25, 2014. It must now be approved by parliament in order to become law.
Iraq’s current Personal Status Law (Law No. 188 of 1959) is considered one of the most protective of women’s rights in the Arab world. It sets the legal age for marriage at 18 (in exceptional cases 15), and is applied to all Iraqis regardless of their religion or sect. The law bans forced marriages and restricts polygamy. Women’s rights in divorce were also extended under that law. The provisions in the 1959 law marked a significant legal step forward for Iraqi women’s rights, particularly concerning family matters.
Today, there are fears that passage of the draft law would pave the way for future laws restricting women’s rights, such as their ability to work or leave their homes. The proposed law breaches several international conventions, such as the Convention on the Rights of the Child, through its legalization of marriage for girls from the age of nine—even allowing girls younger than this to be married with their parents' approval—and boys at 15. Article 104 of the draft law would permit unconditional polygamy and Article 101 would legalize marital rape.
Joe Stork, deputy Middle East and North Africa director at Human Rights Watch, said that the “passage of the Ja'afari law would be a disastrous and discriminatory step backward for Iraq's women and girls . . . This personal status law would only entrench Iraq's divisions, while the government claims to support equal rights for all.”
The pending legislation will encourage further fragmentation in Iraqi society by separating out personal status laws according to sect, instead of the current all-encompassing family code. Supporters of the draft claim that it simply regulates existing practices in Iraq. They say that the new law would not greatly change existing legal proceedings, as personal status cases are already dealt with by religious courts. Advocates reference personal freedoms, particularly freedom of religion, as an argument for the draft law’s approval.
Hussein Al-Mura'abi, also a Virtue Party member, has argued for the law on constitutional grounds: “This is the core of the freedom. Based on the Iraqi constitution, each group within the Iraqi population has the right to regulate its personal status in line with the instructions of its religion and doctrine.” If implemented, the Ja'afari Personal Status Law would accomplish the objectives of conservative Shi'ite leaders: to exert religious control over family matters such as marriage, divorce and inheritance for all of Iraq’s Shi'ite population.
As violence escalates throughout Iraq, many worry that if the law is approved it would inevitably further divide Iraqi society into religious and sectarian blocs, each with their own separate legal framework. The proposed law trespasses on existing Iraqi laws on human rights, and the deeply sectarian nature of the Ja'afari Law is the last thing Iraq needs at this crucial time, as it heads toward general elections on April 30.
All views expressed in this blog post are those of the author and do not necessarily represent the views of, and should not be attributed to, The Majalla magazine.