Welcome to Iraq’s Shia theocracy
Mohammed Marries Aisha At 6 And Consummates at 9
Plans by Iraq’s Shia-led government to institute
Sharia family law have come under fire, writes
Salah Nasrawi
Iraq’s Shia-led government has drafted a family law for the country’s
Shia
majority that feminist activists and rights groups say will impose an
Iranian-style theocracy, violate women’s rights and sow further
divisions in a nation that is already sharply split on sectarian lines.
If endorsed by the parliament, the ja’fari
(Shia)
personal status law will replace one of the most progressive family
codes in the Middle East and revive controversial strict Islamic
practices,
including sanctioning child marriage. It will also institutionalise the
Shia clerical establishment and give it a larger say in the state legal system.
On 25 February, Iraq’s council of ministers said the draft law,
proposed by Shia Minister of Justice Hassan Al-Shimari, had been
ratified and sent to the parliament to pass into a law. Al-Shimari said
21 ministers out of the 29 present at the cabinet meeting had voted for
the bill.
It is unclear, however, if Sunni Arab or Kurdish ministers have endorsed the
controversial draft law. Also, there were no reports on whether all Shia ministers had voted for the proposed legislation.
Al-Shimari, a representative of the religious Shia Al-Fadhila Party,
sparked uproar when he tabled the bill for discussion by the government
in October. Critics condemned it at the time as anti-feminist and a
breach of Iraq’s post-US invasion constitution, which forbids the
enacting of laws that contravene “democratic principles” and human rights.
Under the
proposed law,
a Supreme Shia Judicial Council will be established in the Shia holy
city of Najaf to supervise nationwide religious tribunals that will
settle the family matters of
Iraqi Shias, such as marriage, divorce, the custody of children, inheritance and endowments.
The
draft law
is based on the principles of ja’fari jurisprudence for personal status
issues. Ja’fari fiqh, or jurisprudence, is based on the thoughts and
teachings of Ja’far Al-Sadiq, an eighth-century Shia imam. It differs
from Sunni Muslim schools of Islam in wide-ranging ways and it gives
power to the mujtaheds, senior Shia clerics, to derive verdicts.
To understand what all this means, some history and background are vital.
Iraq’s current personal status code dates to 1959 when the
revolutionary government that had toppled the monarchy one year earlier
passed a law that was widely considered to be progressive because it
institutionalised partial equality between women and men in a number of
areas, restricted polygamy, created a judicial procedure for divorce and
required marriage to be performed only in state-run courts.
The l
aw, which was
later amended several times by governments following the ouster of
president Abdul-Karim Qassim in 1963, also imposed an 18-year age limit
for marriage.
One of the amendments allowed matrimony for persons over the age of
15 but under that of 18 in very strict cases and only by authorisation
of a state judge.
The 1959 law was made binding on all Iraqi Muslims regardless of
their sect. Christians, Jews and other minorities were covered by a
combination of the personal status law, the civil law and their own
personal status legal systems.
However, the
Shia seminary
in Najaf rejected the 1959 family code as un-Islamic and insisted that
the clerical establishment should deal with personal family affairs
alone.
Since the law’s inception, Shia clerics have urged their followers to
consult them for guidance on such matters as marriage, divorce and
inheritance and not the government courts.
In 2003, and under the chairmanship of Shia cleric Abdel-Aziz
Al-Hakim, Iraq’s US-installed Interim Governing Council enacted a decree
that gave power to non-state courts to rule in all disputes among
Muslims concerning marriage and divorce.
The decree was overruled by the US occupation’s chief administrator,
Paul Bremer, after domestic and international human rights groups
protested against the resolution on the grounds that the imposition of
Islamic law would erode Iraqi women’s rights.
As political deadlock now grips the country, the ruling
Shia religious groups have found a new opportunity to enact another family law that reflects their own conservative views.
The endorsement has also been announced in the run-up to the 30 April
elections, apparently in an attempt by the Shia political groups to
play on the sectarian sentiments of sympathetic Shia voters.
The law was sponsored by Shia cleric Mohamed Al-Yakoubi, the
spiritual leader of the Al-Fahdila Party, who charges that many of the
aspects of the current family law are un-Islamic.
Al-Yakoubi and other proponents of the law argue that Iraq is a multi-sect society and the law should accommodate different
interpretations of Islam as well as all people’s beliefs provided that these do not impede the rights of others.
“Shias cannot be committed to verdicts that violate the Sharia. This
is not a matter for compromise or bargaining,” Al-Yakoubi said in a
statement.
It is not yet clear if Grand Ayatollah Ali Sistani, who is considered
to be the prime marja, or spiritual reference, in the country and is
believed to wield enormous power over Iraq’s Shia majority, supports the
new law.
Sistani has remained tight-lipped on the controversy, but another
senior cleric, Ayatollah Basheer Al-Najafi, has voiced concerns about
passing the law without Sistani’s consent.
Sistani is believed to reject the model of
Iranian-style theocracy in
favour of the separation between religion and politics. He has not
wholly embraced the theory of velayat-e faqih, or the guardianship of
the Shia jurists, which was espoused by the late Iranian Grand Ayatollah
Khomeini and is now imposed in Iran.
The theory grants nearly absolute power to the Guardian and institutes rule by Shia clerics.
There is growing evidence to suggest that Sistani is reluctant to
show public disagreement with the hard-line Shia clerics who support
Iran’s ruling clergy, several of whom have already moved to Najaf and
advocate religious guardianship.
After the US-led invasion in 2003, policies adopted by the occupation
authority led to the empowerment of Shia Islamists and largely excluded
Shia secularists from the new government of the “federal, free and
democratic” Iraq.
It was widely believed that the administration of former US president
George W Bush promoted the empowerment of Iraqi Shia Islamists
following the 2003 invasion as part of a strategy to support moderate
Islam and contain extremism.
Noah Feldman, a US professor of law who was a key adviser on the
Iraqi constitutional process, described policy in Iraq as aiming to
create an “Islamic democracy” in which “citizens can vote for laws
infused with Islamic beliefs, ideals, and values, and the state can
endorse Islam and fund religious institutions and education.”
These have since proved to be unrealistic, if not false, aspirations,
as Shia religious groups have controlled the government and dominated
the national political space, pushing leftists, nationalists, liberals
and secularists to the sidelines.
This is why the battle over the new draft law seems to be drawing new
frontlines between the two groups, as the latter now fear that their
lifestyle is at stake should Iraq be pushed into being a religious
state.
The critics’ priority now is to try to stop the parliament from
ratifying the bill. They argue that the law violates the constitution,
which stipulates that legislation should not contradict democracy, the
principle of equality before the law and gender equality.
One of their concerns is that the law will give enormous power to
Shia mullahs who will oversee religious courts that will operate against the state judiciary system.
Some critics say the law will even encourage paedophilia and rape, a
reference to legalising the marriage of girls as young as nine and the
lack of appropriate guarantees for freedom of choice in marriage.
A key problem of the new law is that it does not deal with mixed
marriages between Shia Muslims and Sunni Muslims or specify options for
Shia Kurds and Sunni Kurds.
Its opponents hope that Kurdish and Sunni MPs will now join the few
Shia secularists in the parliament to shoot down the bill when it is
brought forward for debate.
The Kurdistan Region Government has also passed its own personal
status law that has given further rights to women, and it is unlikely
that its members in the Iraqi parliament will support the
Shia family law.
There is little doubt that representatives of the Iraqi Sunni Arabs will reject the new law.
Eleven years after the US-led invasion that toppled the secular
regime of former Iraqi president Saddam Hussein, many Iraqi Shias fear
that their country is now being gradually turned into a
theocracy.
However, Shia politicians are unfazed by the criticisms and seem determined not only to get the
law passed but also to turn Iraq into a theocratic state.
“A lot of politicians wish to have an
Islamic regime
in the country, and I am in the forefront of them,” Justice Minister
Al-Shimari was quoted by Baghdad’s Al-Mada newspaper as saying on
Saturday.
“Those who believe that an
Islamic regime contradicts politics should abandon politics and let them go to hell,” Al-Shimari said.
