Iraq’s Ja’fari (Shiite) Personal Status Law: a Threat to Women and National Unity

Most Iraqi observers agree that the proposed Ja’fari Personal Status Law that was initiated by the Basra based al-Fadila (Virtue) Party was a political maneuver designed to unify Shi’i voters in last month’s parliamentary elections.  But is the law merely a temporary manifestation of domestic politics or does it represent something deeper and more sinister in Iraq’s political development since 2003?

The proposed law, that was approved by Minister of Justice, Hasan al-Shammari, former head of Fadila, and the Council of Ministers, and then sent to parliament for a vote, is highly regressive. It allows girls as young as the age of 9 to be given in marriage (are 9 year olds mentally and physically capable of marriage?).

The law legitimizes marital rape, reduces women’s inheritance rights, removes a woman’s right to initiate divorce proceedings in almost all cases while allowing the husband complete discretion in filling for divorce.  In short, the law gives husbands and male relatives almost absolute control over the behavior of wives and female relatives.

 

(For an excellent article - one of many in this issue - that gives complete details of the proposed law, see the article by the attorney, Dr. Faiza Babakhan, “al-Ahwal al-shakhsiya wufuq al-fiqh al-ja’fari….fi-l-mizan, Narjis, 64 (April 2014): 32-34). 

The proposed Ja’fari Personal Status Law establishes a new legal system within the framework of the Shi’i religious authority (al-marja’iya) in the shrine city of al-Najaf in south central Iraq.  To be created outside the framework of the Iraqi constitution, this new “court system” is intended to adjudicate issues related to the law should it pass.

The law is an insult to the memory and teachings of the 5^th Shi’i Imam of the Twelver School, Ja’far ibn Muhammad al-Sadiq (al-Sadiq means the truthful one). It demonstrates the ignorance of Minister al-Shammari (who also insults the dignity of his famous tribe – the Shammar), and makes clear that the law has no basis is Shi’i historical teachings. 

Ja’far al-Sadiq was highly learned, contributed greatly to the sciences and philosophy, has been an inspiration for many Sunni scholars, and is beloved by the Sunnis of the Naqshibandiya Sufi Order.  After his wife died, Ja’far al-Sadiq purchased a slave, Hamida Khatun, taught her to be an Islamic scholar and then married her.  

Hamida Khatun bore him two sons, one of whom is another beloved Imam, Musa al-Kadhim.  She is worshiped by many Shi’i women for her learning and wisdom.  Is this the historical context and does this provide historical justification for a law that, by any standard, can be considered a violation of human rights?

Iraq is known for having one of if the most progressive personal status laws (Law 188 of 1959) in terms of women’s rights in the Middle East, only superseded perhaps by Tunisia.  While Iraqi women have never enjoyed full gender equality, Law 188, passed under the regime of Gen. 'Abd al-Karim Qasim following the overthrow of the Hashimite monarchy in 1958, has nevertheless stimulated many women to seek degrees in higher education enter the professions and engage in politics (e.g., the first Iraqi women cabinet member, Naziha al-Dulaymi, was appointed in 1959).

During the 1970s and 1980s, women entered the workforce and professions in large numbers.  When I first visited in Baghdad in May and June of 1980, the majority of the city’s physicians were women.  Saddam wanted to break the power of the male head of household, which he saw as a threat to Ba’thist efforts to create a totalitarian state, and he needed workers to industrialize the country.  Sexual harassment laws, to prevent women from being harassed in the workplace, were passed during the 1970s, well before they became policy in the US.

With the repressive UN sanctions regime of the 1990s that destroyed Iraq’s  national economy and education system, that which had been given was now taken away.  Saddam abrogated women’s rights, confining most to the home, reinstated patriarchal control over women (such as denying women the right to travel without the permission of a husband or male relative), and undermined their access to education.

The roots of the current problem can be found in the legacy of Ba’thist rule.. The state’s encouragement of patriarchal authority during the 1990s was a response to Iraq’s defeat in the 1991 Gulf War and the collapse of the Iraqi dinar and hence government salaries – the main source of income for a large percentage of Iraqi males, especially urban dwellers.

“Giving” men more authority and control over their wives, daughters and female relatives became a form of social psychological compensation.  The Ba’thist regime sought to offset the threat perceived by males resulting from their financial insecurity, and the consequent feelings of a loss of control over their lives and predictability that that loss implied, by giving them increased power over women’s lives. 

Saddam’s policies contributed to an increase in violence against Arab women during the 1990s as respect for women, especially among the less educated classes, declined.  While the Ba’thist regime received an award from UNESCO in 1988 for dramatically increasing the rate of literacy among Iraqi women, women raised during the 1990s are often semi-literate or illiterate.  

An indicator of the depth of negative attitudes towards Iraqi women was apparent immediately after the toppling of Saddam and the Ba’th.  The Iraqi Governing Council (IGC), appointed by the US occupation authority, and comprised almost exclusively of men, sought to repeal Law 188 in the fall of 2003. 

Only mass demonstrations organized by women’s groups, the Iraqi Communist Party, and the Iraqi blogosphere that developed rapidly after April 2003, forced Coalition Provisional Authority administrator, L. Paul Bremer, to intercede and force the IGC to withdraw Law 137 designed to nullify the 1959 personal status law.  As Iraqi women told me at the time, while Iraq’s new cadre of post-Ba’thist (male) politicians could agree on virtually nothing else, they could all agree on suppressing the rights of women.

With the extensive period of violence that has engulfed Iraq since Saddam ordered the Iraqi army to invade Iran in September 1980, including the 8 year war that ensued, the Gulf War, the 1991 Intifada, and the sectarian violence of 2003 to 2008, the ratio of males to females has been greatly skewed in favor of women.  A colleague at the Iraqi research center, Bayt al-Hikma, told me that women constitute well more than 60% of Iraq’s population.

Women, many of whom are poor and single heads of households, and who often lack education given the lack of access to schools during the 1990s, are an easy target for male politicians, especially those I term sectarian entrepreneurs (tujjar al-ta’ifiya).  Which brings me to the current proposed Ja’fari Personal Status Law.

The proposed law has less to do with suppressing Iraqi women than with increasing the power of sectarian politicians, in this instance those who control Shi’i political parties.  In the short term, the law was designed to mobilize the base of al-Fadila and Prime Minister Nuri al-Maliki’s Islamic Call Party (Hizb al-Da’wa) and State of Law Coalition.  The publicity around the law was intended to discourage Shi’a voters from voting across ethnic lines in last month’s parliamentary elections.

The much more sinister side of this law is to promote a new type of identity politics, one based on sectarian rather than an Iraqi national identity.  If this law were to pass, it would certainly encourage Sunni sectarians to introduce a personal status law for their own community.  

In the process, this perspective would contribute to the efforts of sectarian entrepreneurs to create political cleavages based on vertical identities (bina’ al-hawiyat ala al-usus al-‘umudiya), rather than cleavages based on horizontal identities (bina’ al-hawiyat ‘ala al-usus al-ufuqiya).  Put differently, the law is designed to promote, especially among Iraqi Shi’i males, a political culture based on sectarian rather than a cross-ethnic national identity.  

In this regard we should remember that the political preferences expressed by Iraqi voters in the 2010 elections resulted in the victory of a cross-ethnic coalition, al-‘Iraqiya,  that was led by a Shi’i, Ayad Allawi and attracted not only Sunni Arab votes, but large numbers of secular Shi’a and Kurds as well.  Prior to 1963, when the first Ba’thist regime destroyed the Iraqi nationalist movement, cross-ethic cooperation in political life was the norm in Iraq.

The second goal of the Ja’fari personal Status Law parallels Saddam’s policy of the 1990s, namely to create among Iraqi males (in this case Shi’a) a false sense of power and authority..  When recently attending a conference in the al-Najaf area of Iraq, numerous Iraqi professors and intellectuals expressed their concern (and disgust) with the fact that a country so rich in hydrocarbon wealth – oil and natural gas – still had a poverty rate of between 20 and 30% of the populace.

A third goal of the Ja’fari personal status law (perhaps less conscious in the minds of al-Fadila and its allies who thought up the law) are feelings of fear and anger towards the former Ba’thist regime that many Shi’a see as dominated by Sunni Arab sectarians.  The thought of the return of the Ba’th or, worse yet, Sunni Arab radical “Islamists” (in quotations because most of these so-called Islamist know little or nothing about Islamic doctrine) who hate the Shi’a and consider them kuffar, represents a legacy of the ancient regime. 

A fourth goal was more short-term in nature.  Because Iran had doubts as to whether supporting Maliki was the most effective policy given his lack of popularity, the proposed law was meant to curry favor with Iraq’s powerful neighbor to the east.  Hopefully, that would have encouraged Iran to support Maliki's State of Law Coalition which is supported by the Fadila Party.

One of Saddam’s most destructive legacies is to have succeeded in promoting sectarianism during the 1990s as part of his “divide and conquer” strategy to remain in power.  Many Shi’a resent the discrimination they encountered during the 1990s and what they feel to be the lack of concern that Sunnis tribes, the base of Saddam’s regime, especially those in the traditional so-called Sunni Arab Triangle, who refused to empathize with their plight.

During a trip that I just concluded to attend another conference in Iraq, Iraqi political scientists and economists argued that 80% of Iraq’s annual budget is absorbed by corruption and other malfeasance with only 20% devoted to government service such as public health, housing, electricity and education.  Promoting sectarian identities (such as white landowners in the post-Civil War south in the US) is a time-honored tactic to distract the marginalized in society and prevent them from developing a correct understanding the actual causes of their poverty and misfortunes. 

Sectarian politics may constitute an efficient strategy in the short term by attracting more votes, but in long term it will poison Iraqi politics.  No one denies the danger posed by the Islamic State of Iraq and the Sham (ISIS) in al-Anbar Province.  However, this terrorist movement was given an enormous political boost by Maliki’s sectarian policies towards Iraq’s rural Sunni Arab community in western and north central Iraq.

As many Iraqi judges and lawyers have noted, the proposed law is in violation of many international treaties and codicils that Iraq has signed relating to the status of women and children.  It also creates a legal system outside of and in contradiction to the Iraqi constitution of 2005.  It marginalizes Shi’i women and thus undermines Iraq’s ability to develop at all levels – economically, socially culturally and politically – with 60% or more of the Shi’a basically confined to the private sphere.

There are Iraqi Shi’i males who argue that we should not worry because this law is only a “political maneuver” that will never become law.  This argument is on the same order of the wishful and disingenuous thinking of Egyptian ambassador to the US, Nabil Fahmy.

Fahmy argues that we should not worry about the hundreds of Muslim Brothers who have been condemned to death for killing a single police officer and for other indeterminate crimes in trials that lasted less than a day because they will never be put to death.  This is the same type of thinking of the many Germans who argued in the early 1930s that no one should worry about Adolf Hitler and the Nazi Party because they were a bunch of crackpots who would never come to power. 

During International Women’s Day this past February, many Iraqi women dressed in black and demonstrated against the proposed Ja’fari Personal Status Law.  They carried many signs, such as “Keep your deviant behavior (al-shudhudh) away from our children,” and, “A woman should neither be bought nor sold.” In the photographs that I have seen, there were many men among the demonstrators.

Even if the proposed law dies in parliament – after having already been referred to that body by the Council of Ministers – tremendous damage has already been done.  Shi’i men, especially those who are poor and lack education - a not insignificant percentage of Iraq’s Shi’i population -  have been encouraged to take the idea that women’s rights should be repressed seriously.

 

Certainly this proposed law will lead to more violence against women by promoting suspicion of their morals and trustworthiness (otherwise why the need for the law?)  It can also be used to justify discrimination against women in the workplace.  Many women are already single heads of households and lack the necessary skills to enter the workplace. This law would make their economic status even worse.

What is needed is support from Iraqi men and clerics in condemning the proposed Ja’fari Personal Status Law and joining women’s organizations in demonstrations meant to prevent parliament from passing it.  This will not only help prevent the adoption of the law, but contribute to democratization in Iraq by promoting the norms of tolerance and pluralism that are essential to a democratic political culture.  

The introduction of Ja'fari Personal Status Law constitutes a "teachable moment."  Iraqi women should use it to b uild a national network of powerful organizations that, working with progressive men, can protect and further the rights of women.  A great slogan for such a movement would be: "There can be no democracy when over 60% of the population are excluded from public life."