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controversial new law proposes one court for shia, another for sunni

Mustafa Habib
Last week Iraq’s Minister of Justice announced two new, potential laws that will impact on how ordinary Iraqis divorce, marry and inherit. Supporters of the laws say they should be free to choose whether they…
31.10.2013  |  Baghdad

In the middle of last week Iraq\'s Minister of Justice, Hassan al-Shammari, announced that two controversial laws – one on personal status and another on judiciary proceedings – had been drafted and that they were being sent to the State Shura Council for review. The Shura Council is responsible for reviewing all draft legislation to ensure conformity with Iraqi law and the Iraqi Constitution.

The two laws would work together to regulate matters pertaining to marriage, divorce, inheritance and the custody of minors. The first was about personal status that is, whether one is single, divorced and so forth – and the second would deal with which court made those decisions and arbitrated on those kinds of statuses.

This is all despite the fact that Iraq already has a personal status law, formulated in 1959 and widely considered to be one of the most liberal of its kind in the Middle East.

It’s for this reason that the potential introduction of the two new pieces of legislation is controversial. And it’s even more controversial because, while the old law was seen as being more universal, and not discriminating between Iraq’s different sects and ethnicities, the new laws may well escalate sectarian tensions.

Due to increasing levels of violence in Iraq at the moment, the introduction of these two new laws has already been described as having particularly bad timing. They could cause problems between Shiite Muslims and Sunni Muslims and they could also be seen as another example of Shiite Muslim politicians, who currently run the country in a coalition led by Prime Minister Nouri al-Maliki, trying to grab more influence for their own sect.

The personal status law currently in effect in Iraq, Law 188, was passed in 1959 and as one group of civil society activists describes it, it “is built on an advanced reading of the Islamic Sharia”, “unifies all Iraqis” and “promotes the principle of a citizenship far from sectarian or doctrinal divisions”.

In an interview with well known Iraqi civil society activist and women’s rights advocate, Hanaa Edward, the Berlin-based liberal, political foundation, the Heinrich Boell Stiftung, explained the significance of the law further.

“While the law is based on religious sources, it is an amalgamation of the most liberal Islamic rules as well as some divergences. It restricts child marriages (by setting the legal age of marriage at 18 years), bans forced marriages and restricts polygamy; it curtails men’s prerogatives in divorce, expands women’s rights in divorce, extends child custody to mothers, and improves inheritance rights for women. It remains one of the most liberal laws in the Arab world with respect to women’s rights. Moreover, by eliminating the differential treatment of Sunnis and Shiites under the law, it does not differentiate between the various religious communities and thus sustains social and communal coexistence,” the foundation’s authors wrote.

“Since it was passed, the Iraqi personal status law has been opposed by many religious leaders, who believe that it contradicts Islamic Sharia Law, and who object to the standardization of personal status laws to cover all sectarian communities. They consider that personal status matters should be dealt with by clerics and not civil servants.”

In practice the 1959 law has given wives the right to inherit their husband’s property and for mothers to gain custody of children in case of divorce or death. That is contrary to less liberal, more religious doctrines that grant custody to fathers and only approves of patrilineal inheritance.

Over the years that Iraq has had this personal status law, civil society activists and women’s rights organizations have lobbied for further amendments to it – and in some cases, these have been made. And many activists continue to support further changes to the 1959 law.

These groups have been shocked and surprised at the Minister of Justice’s announcement that two new laws might be on their way.

“It’s very strange,” says human rights activist, Majid Mohammed. “There were no popular demonstrations calling for a change to the law and there were no acknowledged problems with the current law. Yet the Justice Ministry has drafted these laws anyway.”

“The Iraqi personal status law of 1959 is one of the most civilised in the Arab region,” Shamira Muwaka, a leading member of the Iraqi Women\'s Association, told NIQASH. “We were hoping to see a new civil law but it seems the Justice Ministry is trying to strengthen the influence of the clergy in Iraqi society.”

The second law that comes along with the new personal status law is one related to the formation of special courts of justice for those who would prefer matters of personal status to be decided by their own religious authority. This would happen in special religious courts depending on whether one is Shiite Muslim or Sunni Muslim. However many lawyers as well as human rights activists dislike this idea.

“The formation of courts with a sectarian nature is a violation of the Iraqi Constitution,” local judge Sami al-Moussawi told NIQASH. “According to the principle of the separation of powers, the judiciary must deal with matters of law. No other party can be given that power.”

On the other side of this argument are the Shiite Muslim MPs supporting the two new laws. They argue that the two laws are based on Article 41 of the Iraqi Constitution, which says that “followers of all religions and sects are free in the practice of religious rites … and the management of the endowments, its affairs and its religious institutions. The law shall regulate this.”

“We shouldn’t judge so hastily,” says one of the Shiite Muslim MPs, Ammar Tuma. “It is optional and it won’t annul the laws which have been around for decades. But,” he added, “Article 41 of the Iraqi Constitution does tell us we must pass these new laws too.”

What he doesn’t mention though, is that Article 41 is in itself controversial.

Because it is all about what role religion, and thereby one’s sect, should play in Iraqis’ lives and legal system. Some think that a law like Law 188 takes religion out of the equation too much, forcing all members of different religions and sects to abide by one set of rules. And Article 41 clearly states they don’t have to, they are free – if they wish – to choose to be judged in a religious court of their own choosing.

Of course opponents of Article 41 believe that it formalises sectarianism within the legal system and interferes with civil affairs where it shouldn’t. In the recent past there have been calls for Article 41 to be removed from the Constitution, and in particular, because opponents like Hanaa Edwards say it directly contradicts another part of the Constitution, Article 14, which states that “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, colour, religion, creed, belief or opinion, or economic and social status”.

In fact, MPs from across the political spectrum have agreed that Article 41 needs amending and that a popular referendum should be held on it.

“Iraq’s Minister of Justice has ignored the fact that the Constitutional Review Committee is still working on Article 41,” MP Wahda al-Jumaili, of the opposition Iraqiya bloc, points out. “And that no decision has yet been reached with regard to Article 41.”

Interestingly enough even some other Shiite Muslim politicians were not so enthusiastic about the newly announced laws. Although they support them in principle, they believe the timing is very bad.

“There’s no doubt we need this law,” MP Ali Shabar of the mainly Shiite Muslim Islamic Supreme Council of Iraq, told NIQASH. “But the timing – with the different crises and conflicts at the moment – just makes it a political hot potato.”

“There are other important laws we need which unite the Iraqis,” he added, “these are the ones we should be finishing work on.”

Other observers say that the current situation will mean that if the laws come any closer to being passed there will doubtless be major demonstrations around the country against them. Anyway as it is, the laws still have some way to go before they become binding in Iraq – they must also be submitted to the executive branch and then approved by Parliament. Considering what’s going on in the country at the moment and the tensions between different political parties, the two new laws could face a very difficult passage, if indeed, they ever become law.