Abdulateef AlZubaidy / Arab Center for Human Rights
The hardliners of the Shiite clerics, they took care the idea of subjecting “personal status” to “Sharia” since they have had a political role in Iraq. Their attempts to impose rudimentary provisions against the revocation of the liberal Personal Status Law passed in 1959, and work to cancel it in the future after emptying its content and distorting its texts with a series of amendments, In the post-2003 phase.
The new call comes from an old hatred that grew out of the same convictions that the Shiite clerics started six decades ago, And their attempt to “Islamization” of society and subject to the authority of sectarian , And the distribution of personal destinies to rooms where clerics sit on the ground (as a sign of humility) while playing an enormous role in running the society as custodians of faith (as a sign of pride) controlled by the mysterious interpretations they bring out from the depths of books outdated and social development, As a sign of adherence to Sharia and governance.
The first roots of the hardline stance are the legislation of any personal status law that is subject to the necessities of civil development in Iraq, And the removal of “family” and “individuals” from the traditional and jurisprudence of the clerics and the social impact on them in view of the male environment holding the fate of women and the march of the daily interests according to the tribal nature, And liberation from the Ottoman “sharia courts”, which prevailed until after the dismantling of this state.
The Shiite refusal to liberate “personal status” from jurisprudence is the result of fears of losing spiritual authority to the “followers” and the weakening of the socio-political status of the authorities.
Therefore, this rejection was directed precisely to “governance” on personal status, while the Most affected from that are the women who are subject the dominance of traditional and harsh religious conditions
Which makes their individual choices Cadence the jurisprudence of the guards of Sharia, through the authority delegated to them religiously and not socially objected as a result of male sovereignty which fears the destruction of its traditional image in Eastern societies in general.
The Battle of Social Subjugation began in 1876 when the Ottoman authorities completed what could be considered a modern legal regulation regulating the day-to-day transactions related to trade, contracts and penalties, Known as “the magazine of the legal rules” and written over six decades and adopted the jurisprudence of the Hanafi ideology, Its provisions were passed in Iraqi cities, with deliberate disregard for the organization of personal status. But the “revolutionary” reference to the document was the recognition of the need for a “civil” law that regulates the relationship between individuals: “… the conclusion is that in terms of being a civilian, of course, it is impossible to live alone like other animals but he needs to cooperate and share the spread of the carpet of civilization.” Shi’a jurisprudence makes the age of 9 a ceiling for actual marriage, and below it is correct to write a contract for “physical caressing” without “legitimate entry”.
The leading Shiite jurists in their fatwas proved this to be the “jurisprudential imagination” while rejected by Ayatollah Muhammad Hussein Fadlullah and Ayatollah Muhammad Baqir al-Sadr. Personal status has also been attributed to the “ruling” of clerics, whether Muslim or non-Muslim. The first clash occurred when the Ottoman Family Law was passed in 1917, which was rejected by the Shiite clerics, making the Shi’a public reluctant to submit their cases to the official judges in relation to “personal lawsuits.” The Shiite regime considered it neutral in terms of “personal status” as a direct assault on its authority, despite the fact that the Shiite attitude was in favor of the Union and Progress Constitution in 1908 which provided for freedom from “Sharia” in the rule of the state, which was rejected by Sunni clerics. However, the Ottoman family law emanating from that constitution was met with Shiite rejection and Sunni consent. Paradoxically, the Ottoman family law continues to apply in the Palestinian cities occupied in 1948 and 1967 under Israeli control now, including all the legislation of the Jewish and Christian spiritual councils and other denominations and religions without any amendment. While Lebanese law based on that law in some of its provisions.
Courts to ensure loyalty
After the establishment of the modern Iraqi state in 1921, and purely political necessities, and to bring the relationship between the Shiite community and the Sunni royal court as a result of national fears of a division threatening the unstable Iraqi throne, The most prominent writers of the Iraqi royal constitution, Naji al-Suwaidi, as the minister of justice at that time, put forward the Sharia Courts Act, which was based on the temporary law of legal proceedings established in 1921, which was reinforced by Article 77 of the Iraqi Basic Law of 1925 (the Royal Constitution).
These steps came in order to satisfy the strict Shiite position of the Personal Status Department, under which the “legal recourse” was divided on the basis of “Ja’afari” and “Sunni” legal courts, the latter being committed to the Ottoman family law, The Ja’afari courts were headed by the Shia scientist Hibat al-Din al-Shahristani.
British high-ranking officials Edgar Bonham Carter (a senior judge) and Nigel Davidson, the British High Commissioner’s legal secretary, acknowledge that the British government was behind the granting of “personal status” to Shiite clerics to “ensure their support of the regime and us” Despite the objections of the Iraqi civilian and military elite that served in the Ottoman Empire, and later became the government elite of heads of ministry and ministers, deputies and military commanders, believing that Iraq needs a “civil law” and not legal jurisprudence controlled by who wearing a turban.
But friendliness between (Shiite – the royal) did not last long, and the two sides collided in 1933 and 1945 as a result of the desire of the throne governments to find a unified personal status law, at the end of The clash leading to Cancel Legislation under the law of the sequel of the Law of Civil and Commercial Proceedings No. 88 of 1956 and the sequel of Law No. 40 of 1963.
In 1933, the first government of the state, Rashid Ali Kailani, introduced a Draft project for the unification of personal status laws in the Kingdom of Iraq, As the most prominent embodiment of the “Iraqi national social divide” As one of the projects of the National Party of brotherhood, founded by Yassin al-Hashemi, Al-Kailani formed a legal codification committee to prepare the draft law, But the effort faltered as a result of the government’s political failure and its dissolution late in the year, As well as the pressures of Najaf.
The idea was revived in 1945 by Hamdi Pachachi’s two-year government, which named the “Government of Laws”, when a committee of four jurists was formed to draft the “Personal Status law” and completed the project. But the law remained locked in the government as a result of the strong Shiite opposition launched by Ayatollah Mohsen al-Hakim, With the support of the Supreme Sectarian Muhammad Hussein aal-Kashif al ghetaa.
Al Hakim revealed his position rejecting the law in 1945 In a letter to the government of Abdel Salam Aref, and again Demanding that the law in 1959, which was approved by the government of Abdul Karim Qasim, be repealed, that the two laws were “contrary to Sharia” and that in the “Royal Covenant” one of his sons was sent to the National Assembly to urge the deputies not to pass the law. The deputies forced the government to refer it to a competent committee to study and reconsider it “.
We can return this juristic obligation for senior Shiites about Any law that is fair to women and civil Personal Status, to the vision of the Supreme Shiite cleric Muhammad Hussein aal-Kashif al ghetaa, about The Ottoman Magazine Which restricted the judiciary The judges appointed by the Authority that “the judiciary and governance at the Imamiyah is a divine position that does not interfere By the sultan, or otherwise, is dictated by justice and a set of conditions, and isolated by the disappearance of some of the corner attributes of intelligence, justice and diligence, does not abide by time and place. For decades, Ayatollah Mohsen al-Hakim led direct incitement against modernization. Considered Abdul Kareem Qasim a “punk” and his government was “contrary to Sharia”. The Communist party was defeated and its members, most of them Shiites, considered “infidels” to justify the government’s rejection of two laws: personal status and agrarian reform.
The liberation of women, was the cause of the first clash between Qasim and al Hakim, and the anti-Republican rule of the “veil” built a barrier between the two men, which withdrew to be a barrier between the two authorities. According to the first conservative governor of Karbala and Najaf, Fuad Aref, the government of the revolution refused to grant a license to print a Najafi religious book entitled “The chastity between Negative and Positive” as containing “reactionary ideas.” The crisis erupted between the two men, As well as the increase in women’s activism in pro-left-wing demonstrations led by women who do not wear veil in Karbala and Najaf, making the Shiite clerics gather their supporters on two consecutive occasions under supervision of AL hakim and exit the demonstrations.
The Shiite direct objection to the personal status law governing marriage, divorce and inheritance, and specifies polygamy, and requires the marriage of women with a minimum age of 16 – 18 years in line with Sunni jurisprudence, especially Hanafi, while the Shiite jurisprudence makes the age of nine ceilings for actual marriage, And below, it would be right to write a contract for “physical caresses” without “legitimate entry”. The most prominent Shiite jurists in their fatwas proved this “jurisprudential perception” such as the references of Muhammad Kazem al-Yazdi, Abi Hasan al-Musawi al-Asfahani, Mohsen al-Hakim, Khomeini, Abi al-Qasim al-Khoei and Sistani, who raised the provisions of the infant marriage from his fatwas, while rejected by Ayatollah Muhammad Hussein Fadlullah and Ayatollah Muhammad Baqir al-Sadr.
In order to achieve a revolution in the new law, inheritance is divided equally between women and men, but this article was amended by the government of Abdel Salam Aref 1963, to bring them into conformity with the “Shariah” However, the amendment of the law did not abolish Of antagonism by al Hakim and the Najafi elite of the law.
Instance the Shiite diligent the stubborn rock In the face of any amendment to the personal status laws, Despite their reservations to the Sharia Courts Law, which granted them considerable space to manage the affairs of the community socially, but their permanent desire was to separate all the “Shiite individual” socially and financially from the state, and subject it to the authority of clerics alone, In order to strengthen the status of the community, And fear of smelting “Shiite community” in “State society” Which deals politically on the basis of Loyalty to citizenship Represented in That time by the throne and the kingdom, with the emergence of the sweeping nationalist and Marxist currents that were welcomed by some groups.
The risk of returning to the “Jaafari Law” is a standing of re-submission with another “name” that may cover the sectarian sensitivity of naming while retaining content.
While After the occupation of Iraq in 2003, there was a spate of community violence that was escalating alarmingly and dramatically throughout the country, and in the south (Basra) in particular, with the emergence of attempts to impose Islamization on its “Shiite” On the state of “historical repression” since the emergence of the religious trend after the second Gulf war in 1991, as if it was a kind of forced compensation to counteract the ideas and practices of previous regimes. But it was a kind of terrible religious confusion mixed with superficial emotion to justify the self-defense of the oppressed, and a way to avenge the “secularism” that has flourished since the beginning of the formation of modern Iraq in 1921. The weakest link to imposing the new pattern of ideas was to infringe the freedom of women gained through a long struggle and through positive policies since the enactment of the 1959 Law. It was The painful disaster in the attempt by the periodic president of the Governing Council, Abdul Aziz al-Hakim (the son of hardline dissident Ayatollah Mohsen al-Hakim), to issue Resolution 137, Which represented a reactionary reaction to practices controlled by clerics and imposing their interpretations on society, And return to the pre-civil organization of the modern state.
Although Cancellation This decision later by majority vote of the members of the Governing Council, but the idea of subjugation of Personal Status Which was surrounded by hardliners Shia have taken care of Remained on the table, And succeeded in imposing the rationing of compulsory Islamization, To establish a constitutional provision that makes individuals subject to their personal affairs in accordance with Article 41 of the Permanent Iraqi Constitution of 2005 that “Iraqis are free to abide by their personal status, according to their religion, sects, beliefs or choices. This formulation came from the US ambassador in Baghdad at the time (2005) to satisfy Shiite militants seeking to repeal the law itself.
The decision faced a wave of large-scale objections, and a number of Iraqi women MPs said that the article “opens the door to random opinions on the fates and fate of families, leading to disintegration and fragmentation, in addition to the consolidation of sectarianism and family disintegration in Iraqi society.”
With the stigmatization of clerics as anti-women, there was also an effort, in turn, to stigmatize women’s rights activists against anti-Islamism and not represent the totality of Iraqi society. The activists were often portrayed as separate from the facts in Iraq. Which was later translated at Basra with horrific attacks against women
Under the pretext Violation of Sharia and social norms, particularly between 2005 and 2008. According to police records and statistics collected in 2005-2008, the number of women killed in Basra is under the pretext ” Violation of Sharia “, In 2005, the number of victims was 85, and in 2006 the number was 96, while 2007 was the largest organized killing of 133 victims, followed by the death rate to less than 50 in 2008 following a government campaign against radical militias.
Although the Local government denial at that time and The allegation that the killings were “individual” and did not represent a systematic approach against women, although most of the women were killed On suspicion only For “honor crimes ”Or revenge for girls who refused to establish relations with the militiamen because of the division and social difference, but the similarities and horrific killing methods matched that the killing bodies one They varied between brutal physical torture with sharp instruments, gunshots in the body, and torture to death with an electric drill.
“Al Jaafari “Law
In mid-July 2013, the Minister of “Justice” Hassan Al-Shammari surprised the media by announcing two laws linked together which they are “Jurisdiction Law of the Iraqi Jaafari” and the “Ja’faria Personal Status Law” And submit them to the Government Which in turn referred them To the Iraqi Council of Representatives.
But a storm of objections from the centers of civil gravity in the southern provinces and Baghdad, as well as the parliamentary opposition Sunni and feminist, formed a wall to block the legislation of the two laws, Which are a dangerous precedent in the consolidation of sectarian division in the country, especially since the Ministry of Justice did not do at the same time By placing a Draft laws parallel to the Sunni sect or other religions to justify the discrimination of the Shiites by law, which strengthened the belief that the movement of Shammari is behind the Islamic Virtue Party and spiritual leader Ayatollah Mohammad Yaqoubi, in preparation for winning the elections in 2014, after losing the party’s political weight And its seats in the provincial councils and the Iraqi Council of Representatives.
It was a political”sectarian” adventure May lead to the unity of the country threatened, to acquire a number of seats and political privileges. The anti-Iraqi personal status law moved from Al Hakim to Al Yaqoubi party under the same framework, to achieve political and social domination of Iraqi Shiites, to demilitarize the Iraqi state and to return it to the era of small rooms in villages controlled by clerics, without taking into account the dangers of social division in shade A spate of calls for “sectarian” and “regional” division. However, the risk of the return of the “Jaafari Law” is available with parliamentary hints to re-put it again with another “name” that may cover the sectarian sensitivity of the label with the content remains dangerous itself.
Criticism against the law
Escalated the Campaign to reject the amendment of the Iraqi personal status law, Which aims to organize marriages in accordance with the Sharia, and demonstrated civil groups to reject the project, While the United Nations Mission called for comprehensive and broad consultations In conjunction with this escalation.
Hundreds of activists in the capital Baghdad and several provinces, including Basra and Diwaniyah, staged protests against initial approval of the personal status law by parliament. The participants carried banners with names denouncing the initial approval of the law, including “Our daughters are not a commodity, I got married and I am a minor.” The demonstration was attended by children and girls holding signs saying, “Is it conceivable to marry a year from now?” The United Nations Assistance Mission for Iraq (UNAMI) called for broad and comprehensive consultations on amendments to the draft Iraqi personal status law with a view to ensuring full respect for women’s rights, stressing the urgent need to develop legal and institutional strategies to eliminate discrimination against women and girls.
And demanded the Iraqi Bar Association Parliament To withdraw the proposal of personal status law, adding that the proposal leads to the consolidation of sectarian identity at the expense of the principles of citizenship, and the loss of rights acquired for women under the law in force for personal status, noting that the proposal eliminates the principle of equality before the law approved by Article 14 of the Constitution. This proposal leads to “making the crime really permissible for out-of-court marriage”.
The United Kingdom called Members of the Iraqi parliament to reject the proposed changes to the personal status law, “which would lead to the reduction of the age of legal marriage in Iraq to nine years.” A spokesman for the British embassy in Baghdad said in a press statement that “allowing different groups, by legislation in accordance with their own legislation, would reduce the marriage age of some girls in Iraq to nine years.” “This is a retrograde step that contradicts the rights of women and girls, and this would harm national prosperity, because the social, educational and economic development of women is an important factor in pushing national development forward and exacerbating sectarian divisions, The United Kingdom therefore calls on Parliament to reject these amendments. A delegation from the British Embassy presented the concerns of the United Kingdom in a roundtable discussion on personal status law hosted by the Iraqi Bar Association on November 14. The event was attended by parliamentarians from the State of Law, the Change Movement and the Patriotic Union of Kurdistan, as well as representatives of the government and non-governmental organizations And the media And the international community.
The Sources indicate that political blocs and parties will intensify their campaigns to support laws of a religious or tribal nature ahead of the elections. The sources say that «these parties want to use these files in the election campaign».
The US State Department objected On a project of Law to allow that law to marry children. Washington rarely comments on an Iraqi law before it is passed, which activists see as a warning signal to Islamic forces to proceed with its endorsement.
Activists and civil society organizations organized dozens of aggregations and demonstrations against the law and accused Islamic parties of returning to the laws «The ages of ignorance».
Despite the majority of deputies voted on the proposed amendments, various political forces issued statements condemning them, including the “Alliance of Forces” (Sunni), which confirmed its rejection, and called on the presidency of the parliament to «withdraw and not put to vote».
The Fiqh Council, the highest Sunni religious body in Iraq, rejected the amendments and confirmed in a statement that «the personal status law in its current version represents a middle point between the different sects, and no one complained of it over the previous decades».
To that , Call The Catholic Chaldean Patriarch Louis Raphael (I) Sacco during a visit to Paris to amend the Constitution to ensure “equality of all citizens,” stressing that religion is a “personal option” and may not be implicated in the affairs of the state.
He said during a press conference at the Arab World Institute “The priority for Iraqis is security and stability.” “We need international help to achieve this and to promote a healthy and non-sectarian way.”
He continued: “I am an Iraqi citizen, it does not matter if you are a Christian, a Shia, a Sunni or a Kurd … Religion cannot separate citizens. Religion is a personal choice: to believe or not to believe, I am free and faith cannot be imposed by force, “stressing that” people in the Middle East must be aware of it. ””If these countries want to enjoy a secure future, they must be a civilian state and I dare not say secular.”