The Iraq Interim Governing Council (IGC) issued a resolution on 29 December 2003
(Number 137) proposing the abolition of the existing Personal
Status Law, which applied uniformly to all Iraqis, in favour
of the application of religious law. This would mean
authorities in each of the country’s communities –
Sunni and Shi’a Muslims, (Catholic) Chaldeans,
Assyrians, and (where appropriate) tribal chiefs –
administering different legal provisions that applied only to
“their” people, not to Iraqis as a whole.
This resolution elicited strong protests and demonstrations
in Baghdad, Sulaimaniya (in the Kurdish north) and other
cities, from prominent women’s organisations, and from secular
and liberal Iraqis. These included the interim minister of
public works, Nasreen Barwari, and other women prominent
in public life. The Kurdish parliament rejected the
resolution, affirming its adherence to the existing law. In
the face of these strong reactions the resolution appears to
have been withdrawn for the moment – although the issue will
arise again as the new Iraqi constitution is drafted.
The issues of “personal
status” are routinely used by religious authorities and
political Islamists as a rallying position for both
conservative and populist sentiments. Thus, the very fact that such a
resolution could be proposed is a significant measure of the
combination of social and ideological forces now contending
for mastery in the coming Iraqi state. It would, if accepted
and implemented, be a truly retrograde step, returning Iraq to
the legal regime that prevailed in the first half of the 20th century.
The consequences for married Muslim women would be
particularly severe. The resolution would allow polygamy;
unilateral right of divorce to the husband (without reference
to a court); denial of rights to divorce to the wife except
under restricted and extreme conditions; obligation of the
divorcing husband to offer maintenance for only three months
after divorce (the ‘idda period during which the woman
is not allowed to remarry, waiting to see whether she is
pregnant).
Within marriage, moreover, the wife would be dependent on
the husband’s permission to work outside the home or to
travel. Under the laws of succession, males will continue to
inherit twice the share of the females.
The respective religious laws applying to non-Muslim
communities in Iraq would be equally patriarchal.
A contested history
How does the IGC’s recent proposal relate to the experience
of the modern Middle East, and indeed to the earlier national
experience of Iraq itself? In this article I will sketch some
of the relevant correspondences, in particular from Egypt and
Iran, before returning to the issue in the perspective of
recent Iraqi
history.
Most modern Muslim majority states, except Turkey and
Tunisia, have adopted a modified version of shari’a law for personal status.
Crucially, however, from the beginning of the 20th century,
these laws were codified into state law (as against jurists’
and judges’ law in accordance with books of Islamic
jurisprudence), and subject to state legislation.
In the 1950s, countries such as Egypt and Morocco abolished
the special shari’a courts for family matters, and
incorporated personal status into regular courts. Iraq, under
the rule of Abd-al Karim Qasim (1958-63) took similar
steps.
The present proposal, restoring the law to the religious
authorities, reverses these reforms. It also reverses a
century-long trend in which legislators have tried to alter
the provisions of the shari’a in favour of modern
conditions and sensibilities. This is illustrated by the
experience of Egypt and Iran.
Egypt’s matrix
Egypt presents an interesting example of personal status
law. The most important reform package was introduced by
presidential decree under the rule of Anwar Sadat in 1979. It was known as the
“Jihan Law”, after Sadat’s wife, known to be the instigator.
These reforms made the husband’s right to unilateral
divorce subject to court ruling and registration (previously,
a husband could divorce his wife without her knowledge). They
also gave the first wife the right to divorce if her husband
proposed a second marriage; gave a divorced wife property
rights in the matrimonial home; and made custody of children
subject to court decisions, rather than the fixed rule that
gave the father or his family ultimate custody.
Sadat got a committee of ulama (Islamic authorities)
to endorse these amendments, some of whose members reneged on
their endorsement following his assassination in 1981. The
amendments were also challenged in parliament, in popular
campaigns and in the courts, until the Supreme Constitutional
Court overturned them in 1985 – on the grounds that the
presidential decree was promulgated under emergency laws and
without parliamentary approval (like so many other Egyptian
laws!).
A highly contested parliamentary vote restored most, though
not all, of the decree’s provisions in 1986. But the struggle
continues, and in 2000 there was an attempt to grant a woman
the right to divorce under a shari’a provision called
khul’, providing she renounces all financial and
property rights.
Iran’s dynamic
An even more fascinating example of personal status law is
Iran after the 1979 revolution. The earlier regime of the Shah
promulgated “family protection laws” in 1967 and 1976. Under
these provisions the rules of the shari’a were
drastically amended along lines similar to the Jihan laws in Egypt.
Ayatollah Khomeini, after he took power, proclaimed these
laws to be dead, and even threatened that individuals who had
divorced and remarried under them would be prosecuted for
adultery. The restoration of traditional shari’a rules
led to great hardship and chaos in family affairs. Soon, there
were campaigns for reform from within revolutionary political
quarters, especially from high-ranking women – including
Khomeini’s own daughter.
The revolution had promised to restore dignity to women and
families, as against their pre-revolutionary, western-style
exploitation as ‘sex objects’. How can this promise, they
argued, be compatible with giving arbitrary powers to husbands
to throw out their wives and children at will, as well as
inflict other indignities?
This pressure was fuelled by the revolution’s unsettlement
of Iranian society and its stimulus to political activism; the
war economy during the long conflict with Iraq in the 1980s
also brought more women into the job market and the
professions.
The result was a succession of reforms. These took place
partly through amending laws and procedures, but more in the
form of the standard marriage contract. This allowed the wife
some protection from shari’a provisions, including the
right to divorce under certain conditions, and some financial
protection. These were theoretically voluntary undertakings,
but they became the norm in most marriages in Iran.
As conservative clerics persisted during the 1980s in
obstruction of government legislation, especially on land
reform and labour protection, Khomeini issued an astonishing ruling in
1988. He declared that the Islamic government is heir to the
Prophet Mohammed’s prerogative, and as such is empowered to
suspend all provisions of law – including prayer,
fasting and pilgrimage – if the government judged this to be
in the interest of the Islamic community. This gave the
government complete freedom to select what it applies from the
shari’a.
In practice, the Iranian mullahs and the powerful
judiciary among them have become more and more arbitrary in
their judgments, in accordance with a calculus of power and
their intimidation of opponents. Most recently, they have
excluded hundreds of candidates from the majlis
(parliamentary) elections.
Iraq’s social experience
In the light of these comparative experiences, how has Iraq
fared? The military-led revolution in 1958 that toppled the
monarchy was a period of great turbulence, in which
“progressive” forces, especially those of the Iraqi Communist
Party and its allies, were prominent. Many democratic and
leftist figures assumed government positions, and reform and
innovation were in the air.
The Qasim government introduced
reform of the Personal Status Law in 1959, against strong
opposition from religious and conservative quarters, both
Sunni and Shi’a. Personal status courts replaced
the old shari’a courts, making rulings on family
matters in accordance with codified state law. The reform
restricted polygamy, and empowered wives to initiate divorce
and make financial claims. Crucially, it also specified equal
shares in inheritance for sons and daughters rather than males
inheriting double the female share.
These reforms were greeted with consternation by
conservatives, and with jubilation by leftists and
secularists; the latter’s rhyming slogan in demonstrations was
tali al-shahar maku mahar, wal-qadi nethebba bil-nahar
(“by the end of the month there will be no dowries, and the
qadi can be chucked into the river” – although dowry
was not actually abolished).
Qasim was overthrown in 1963 in a bloody coup.
Its Ba’athist authors, after their bloodbath of communists and
other opponents, were soon themselves outmanoeuvred by their
reactionary figurehead, Abdul-Salam Aref, who took control
with a clique of army officers from the “Sunni
triangle”.
A delegation of religious notables, both Sunni and
Shi’a (although Aref was disdainful of the latter)
lobbied the now-sympathetic new junta, who responded by
restoring elements of earlier family law (notably the rules of
inheritance favouring males).
A second coup in 1968 re-installed the Ba’ath party in
power, with Saddam Hussein in the wings, soon to emerge as its
strongman and ultimate dictator. The new regime, professing
socialist credentials and the desire to subordinate
traditional formations of patriarchy, tribe and religion under
Ba’ath authority, was generally progressive on social issues
and women’s rights.
A series of amendments to the 1959 laws of personal status
began in 1978 and developed through the 1980s. These extended
and clarified the 1959 laws in a generally liberal direction
with regard to women’s rights in family and society (but
excepting the 1963 inheritance law amendments favouring
males). During this period more opportunities were opened to
women in public life, education and the professions.
The attitude of the regime to family and women changed in
the 1990s, after the 1991 Gulf war and subsequent sanctions.
During this period and until his demise, Saddam turned to
religion and tribe to legitimise and reinforce his power base
and as instruments of social control. The increasing control
of these patriarchal authorities was detrimental to women.
“Honour killing”, for instance, was sanctioned, and
perpetrators escaped with light punishment, if any. Tribal
jurisdiction, which had prevailed in the first half of the
20th century under the monarchy, was reintroduced, and civil
and personal matters entrusted to tribal chiefs and tribunals.
The honour of democracy
Here the story comes full circle. The raison d’etre of the
war in Iraq was the establishment of democracy, human rights
and the rule of law. The IGC was established ostensibly as a
step in that direction. It is odd then that its first
legislative act on the family should be to abolish secular law
and establish backward religious authority – and an arbitrary
one for that matter, only bound by the mullahs’ and
shaikhs’ interpretations of the shari’a.
But this step is only a function of the nature of
“representation” on the IGC, with religious figures supposedly
representing their “communities”. To some extent such a choice
of representatives was inevitable, given the destruction and
dissolution of all political and civil bodies under the
Ba’ath. Religious, tribal and ethnic formations survived, or
were deliberately reconstructed and reinforced by the regime
as means of control.
Elections will not solve this problem at present: the same
formations are best placed to mobilise votes and intimidate
dissidents, while political parties and civil associations
have not had the chance to build up constituencies. This is
all the more reason for the Coalition Provisional Authority to
work towards constitutional checks to stop these theocratic
tendencies.
What, in any case, does it mean to “apply the
shari’a”? We have seen how doubtful it is in the case
of the Islamic Republic of Iran. In relation to public law and
functions, the shari’a’s indeterminacy makes it a means
of arbitrary rule. Its only clear hallmarks (though even these
are much disputed) are in the spheres of family and women and
of aspects of public morality. These become the fields of
display of religious authority.
The results are clear. Covering up women and segregating
the sexes, prohibiting alcohol (which just makes it
expensive), censorship of cultural and literary products and
the media, and, in the worst case, so-called Islamic corporal
punishments of amputation and beheading, as in Saudi Arabia
and Taliban-ruled Afghanistan (less common in Iran). In Iran,
compulsory veiling of women in public has become the ultimate
symbol of the mullahs’ power, and its abolition, if it
comes, will signal their defeat.
There are many indications that some religious forces in
Iraq, Sunni and Shi’a alike, are attempting to
impose just such signs of their authority. Muqtada al-Sadr’s
militias, for instance, have been intimidating women in areas
under their control into wearing the veil. They employ
violence against shops and bars selling alcohol, and have
attacked and destroyed one brewery in Baghdad. Cinemas and
theatres have also come under pressure.
If Iraq is to stand any chance of democracy and the rule of
law – which already seems remote under present conditions –
then these forces must be resisted.
openDemocracy has published
analyses, interviews, reportage and personal reflection
about Iraq before, during and after the 2003 war. Among
the highlights:
- Paul Rogers, The
coming war with Iraq (February 2002) - our
international security columnist's prescient
perspective, from over a year before the war started
- Faleh Jabar, Too
soon to stop thinking: the view from Iraq
(September 2002) - an exiled Iraqi academic calls for
a political strategy, not military force alone
- Yasser Alaskary, The
Iraqi dictatorship: a unique case needs an exceptional
solution (September 2002) - a young dissident's
call for moral imagination and political action
- Faleh Jabar & Yasser Alaskary, Iraq
after Saddam: two generations in dialogue
(December 2002) - a fascinating, even moving
conversation between Iraqi democrats
- Wendell Steavenson, A
light in the north (April 2003) - how it looked
from Sulaimaniya, Kurdistan, as the bombs rained down
on Baghdad
- Ayub Nuri, Brief
encounters in an anxious land (July 2003) - an
Iraqi Kurd's post-war journey brings conversations of
cinematic clarity
- Gil Loescher, I
was not going to die in the rubble (December 2003)
- the openDemocracy's columnist's astonishing tale of
survival in Baghdad, amidst the death of his friends
Arthur Helton and Sergio Vieira de Mello
- Fred Halliday, Looking
back on Saddam Hussein (January 2004) - a
respected scholar's reflections on a lifetime's
entanglement with the Iraqi experience
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