Earlier this month, Iraq’s parliament received amendments to its constitution that — if approved — will fundamentally change Iraqi women’s legal rights. The amendments include sectarian religious laws — breaking with the current law based on Sunni and Shiite jurisprudence.
The amendments apply to Iraq’s personal status code, which is a legal framework addressing family law that gathers most of women’s legal rights in matters of marriage, divorce, child custody, alimony or inheritance. One of the proposed amendments could allow child marriages of girls at age nine.
If approved, the amendments will affect marriage inside the civil court that provides legal protection for women from polygamy and different forms of abuse. It also weakens the power of the state appointed judge in granting power to sectarian religious authorities instead of a cross-sectarian reading of the law that decides whether cross-sectarian marriages are possible.
Iraqi women’s rights and civil society activists consider this proposal to fundamentally question the basis of women’s legal rights in Iraq along conservative and sectarian lines. Activists from different platforms, like the Iraqi Women Network, Iraqi Women Journalist’s Forum and Organization of Women’s Freedom in Iraq, have pushed for progressive reforms of the personal status code rather than its questioning along regressive lines. An international campaign — launched by academics, activists and individuals (including this author) — started a petition demanding the parliament speaker and Iraqi MPs reject these changes.
The central government is dominated by Shiite Islamist conservative parties. And armed sectarian and religious groups have ruled in Iraq since 2003. In such an environment of generalized sectarian violence — and marked by the dominance of sectarian and religious conservative forces — the existing personal status code is inclusive, uniting Sunnis and Shiites under one legal framework and granting women essential rights, like the right to divorce in cases of domestic violence and abuse.
Challenging the personal status code, established in 1959, is not new in Iraq. Since 2003, Shiite Islamist political parties who came to power with the U.S.-led coalition forces have pushed for change several times. They presented different propositions — all of which introduce the possibility of a sectarian personal status code.
These proposals — all advocated by Shiite Islamist political parties — follow the principle on which the Iraqi political system has been based since the invasion and occupation: communal identity politics.
This Iraqi political system since 2003 has institutionalized ethno-sectarianism through the introduction of a system based on communal quota. Each “community”— Arab, Kurd, Sunni, Shiites, etc.— has its share of power. The debaathification campaign, led by the U.S. forces during the first years of the occupation, disbanded the army and expelled from the state’s institutions former members of the Baath Party, provoking a collapse of the state stripped from its experienced and skilled agents. The bloody repression of the forces opposing the invasion and occupation and the marginalization of the Sunni population by the U.S. administration and new Iraqi political leadership have exacerbated sectarian tensions.
All of this created a context of social, ethnic and sectarian tensions in the country — plunging it into a civil war. In proposing a specific law for Shiite Muslims, the Shiite Islamist political elite seeks to assert its own identity on Iraqis, rather than an inclusive version of Iraq’s identity.
Proposing to adopt a sectarian system breaks with the political legacy that the Iraqi personal status code is meant to represent. Originally championed by prominent feminists and the anti-imperialist, secular left, they fought for its establishment in 1959 to protect women’s rights outside of sectarian divides. As such, the code is a legacy of the women’s movement. One of its figures — who was also the first Iraqi (and Arab) cabinet minister — Naziha al-Dulaimi participated to its writing. It was the symbol of the unity of Muslim Sunnis and Shiites gathered under one law, and it openly questioned the traditionalist and conservative political elite put in power by the British occupation.
Significantly, all these law propositions have been very unpopular among Iraqis, Sunnis and Shiites alike. Most Shiite clerics also opposed it. In 2015, a protest movement began against the post-2003 political system, alleging corruption and nepotism by the country’s new political elite. Demonstrators demanded a state treating it citizens equally, instead of a political system based on ethnic, religious and sectarian identity. They denounce the post-2003 regime for its corruption, nepotism and mismanagement of the country.
More generally, women’s rights and civil society activists have been at the forefront of mobilizations for a welfare system, advocating for functioning state institutions and services — like access to electricity, running water, housing and employment. Activists consider that the post-2003 regime, its sectarian functioning and the corruption and nepotism of its new political leadership have resulted in widespread impoverishment and generalized violence.
For women’s rights activists in Iraq, the proliferation of child marriage is a consequence of the generalized impoverishment, insecurity and the absence of functioning state’s institutions. The proposed reform would just legitimate this already widespread practice.
Since 2003, Iraqi women’s rights activists have been caught between fighting to preserve their existing rights — under threat from conservative social forces — and for their essential rights to security and dignity — under siege from the violent social, political and ethno-sectarian crisis provoked by the invasion and occupation.
Changing the personal status code in this way would bring Iraq’s legal environment back to the period when the country was still colonized by the British Empire, during which no law governed Iraqis in personal matters other than religious and tribal courts. That would break the legacy of the progressive political forces that established the personal status code — and above all — the legacy of the women’s movement that fought for these rights for all Iraqis, regardless of religious sect.