Women And Personal Status Law In Iraq Politics Essay
|✅ Paper Type: Free Essay||✅ Subject: Politics|
|✅ Wordcount: 5424 words||✅ Published: 1st Jan 2015|
Personal Status law is the term applied to those provisions in a state's constitution that refer to the areas of marriage, divorce, custody, and inheritance. In many countries these laws are constructed as part of a secular, civil code, with independent courts adjudicating disputes. Historically women have been much more sensitive to personal status laws, also referred to as family law, because of their position in the household as caregivers and matriarchs. The laws that pertain to personal status in Iraq have undergone three main periods of transformation; in pre-Gulf War Iraq, the original law of personal status was set in place on December 30, 1959; several of the provisions (articles) were then amended, a few dropped, and several more added throughout the 1970's; post-Gulf War Iraq was a crucial turning point in the transformation of the code when women began to see a decline in their personal status rights; the laws were altered yet again as a consequence of the U.S. led invasion in 2003 and the drafting of a new Iraqi Constitution. By looking at these three time periods and the prevailing political atmospheres, we can then see the negative transformation and state manipulation of the personal status law. The future of the status of women in Iraq and their rights as recognized in a personal status code will also be discussed. It will be clear from this examination that while women have been successful in exerting some influence on laws of personal status in Iraq, more often than not the laws have been manipulated as a political tool by those in power, irreverent of the needs or wants of the country's female population.
It is important to consider the development of international human rights perceptions in relation to the current debate in the Middle East. The purpose of this framework is to provide a foundation from which we can understand the source of significant tension between Shari'a Law and Personal Status Law.
Human rights formed in the West during the European Enlightenment. The idea that "the rights of the individual should be of paramount importance in a political system" emerged and the emphasis on "individualism, humanism, and rationalism" (Mayer, 44) is the basis for contemporary international human rights principles. These Western foundations do well to explain the cause of tension between the West and Islam over human rights but to understand where the source of tension lies, we must look at Islam as an institution.
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Islam is the cornerstone of Middle East culture and tradition. Regardless of modernization efforts, Islamic primacy still remains. The dominance of religion affects all aspects of life including the human rights discourse and, as a result, the Muslim position on human rights is complex. "Muslims do not have a common belief about what the Islamic position on human rights is or the relationship of their cultural tradition to international human rights norms" (Mayer, 11). The Middle East, by nature, is a deeply penetrated region dealing with the impact of Western persuasion throughout its history. Human rights concepts are just another standard that the Middle East has had to assimilate and apply to their countries. However, these concepts are also part of accepted international law and by acknowledging "international law as the law of nations" (Mayer, 12), Muslims are bound to these norms. Thus, Muslim rejection to international human rights on the basis of Islam is contradictory.
Historically, "there is no human rights tradition in Islamic civilization" (Mayer, 73) and no existing criteria as to how Islamic institutions limit international human rights or is there any detail of what these restrictions would be.
"International law recognizes many rights protections are not absolute and may be suspended or qualified in exception circumstance such as wars or public emergencies or even in normal circumstances in the interests of certain overriding considerations"  However, there are certain kinds of rights that cannot be limited. These include freedom and equality, equality before law, equal protection, fair and public hearing, freedom of religion, and equal rights in marriage, all of which are listed in the Universal Declaration of Human Rights (UDHR).
In addition to these absolute rights, the UDHR also includes "definite standards regarding what constitutes permissible reasons for curbing human rights protections" (Mayer, 76). For example, Article 29.2 states:
"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." 
A similar stipulation is also expressed in the International Covenant on Economic, Social and Cultural Rights (ICESCR) in Article 4:
"The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society." 
It is clear that there are specific guidelines to restricting limits put on human rights exist; so then how does Islam seem to infringe upon these principles?
Under international law, Muslims and non-Muslims cannot be deprived of their rights. However, there is no regulation that states that "fundamental human rights may be curtailedâ€¦by reference to the requirements of a particular religion" (Mayer, 76). Nevertheless, human rights in the Middle East are being controlled under Shari'a law and as a result, "the rights that are established under international law are being qualified by standards that are not recognized in international law as legitimate bases for curtailing rights" (Mayer, 77). Thus, it can be concluded that Shari'a law is in direct conflict with democracy and human rights.
More importantly, the overall conflict lies in the "relationship between culture and human rights" (An-Na'im, 142). Shari'a law is an integral part of Muslim society as it is the personal law of Islamic society. Most of the human rights violations related to Islam are inflicted on women especially regarding Personal Status law.
Women in Pre-Gulf War Iraq
CONDITIONS IN 1959
The late 1950's were a time of great change for Iraq. After years of living under the British mandate system and the subsequent rule of a pro-British monarch, a revolutionary new regime came to power on July 14, 1958. Led by Colonel 'Abd al-Salam 'Arif and Brigadier 'Abd al-Karim Qasim, the forces that overthrew the monarchy were united more by their distaste of the ruling regime, rather than by ideological means (Tripp, 149). Qasim quickly took advantage of his new position, consolidating power at the top of the state, and appointing himself Prime Minister, Minister of Defence, and Commander in Chief (Tripp, 152). The Iraq he took over was poor and underdeveloped, but under Qasim progressive laws were passed and early on groups were allowed to organize (including the Communist Party) to address the concerns and needs of what had previously been neglected aspects of society. These organizations, though allowed to operate openly were nevertheless still beholden to the state. One such group was the League for the Defense of Women's Rights, or al-Rabita, officially recognized by the government in 1958 though it had been active underground since 1952 (Efrati, 2).
Al-Rabita was funded by the Communist Party, but established by professional Iraqi women "to create widespread access to the kinds of opportunities which their own more privileged backgrounds had granted them" (Tripp, 154). In this spirit the group focused on educational opportunities and political participation. They were also active in helping to draft and pass the Personal Status Code of 1959. Before 1959, Iraq had no civil code that addressed matters of personal status, which are of particular concern to women. The 1940's saw the first wave of educated women in Iraq, as female doctors and lawyers graduated from state universities (Tripp, 155). The women who had started organizing in 1952 were committed to combating issues of child marriages, polygamy, and the difficulty of divorce for women compared to the relative ease of divorce for men. These women were active in helping to draft the 1959 law and their president, Naziha al-Dulaymi, used her position as the Minister of Municipalities (and the first woman cabinet member in Iraq) to sit on the panel of specialists who prepared the law. Resistance was strong among the Sunni and Shi'a 'ulama;' the Sunni were afraid that the income and prestige of the 'ulama' would suffer, while the Shi'a clerics saw possible codification of a civil personal law as "an encroachment on the realm of their mujtahids" (Efrati, 3). It is unclear why Qasim's government pushed through with the groundbreaking Personal Status Law No. 188 on December 30, 1959 (Efrati, 3). A possible reason for the ruling could have been Qasim's was interest in unifying Iraq, not because he was necessarily an egalitarian, but because consolidation of the state made control easier, thereby increasing and protecting his power base.
THE LAW OF 1959
The Personal Status Law was issued by decree in 1959 and contained two distinct innovations:
It unified personal status law for Sunnis and Shi'a.
Personal status law was now codified and written into law. Judges could no longer determine the law according to their own religious training; they simply had to apply the new code (Brown, 5).
The new law had its basis in Shari'a but made expert religious opinion unnecessary, taking control over personal status and the fate of women out of the hands of the religious leaders and putting it into the hands of the state. Underscoring how important a rift this caused among the emerging secular state and the religious clerics, author Michael Eppel writes that "Shi'ite religious leaders' opposition to this law was a catalyst in the Shi'ite awakening in Iraq" (158). This uniform law was enacted to erase sectarian divisions and subject everyone to the same rules of the state. Important provisions of the law included:
A marriage age of 18 (article 8). In special cases this could be lowered to 16.
Required a woman's consent to her marriage (articles 4 and 6).
Set forth sanity and puberty as essential to the capacity to marry (article 7).
Prohibited arbitrary divorce.
Set strict limitations on polygamy, requiring the permission of a judge which could only be granted on two conditions: 1) the husband was financially able to support more than one wife (article 4a) or 2) that there was some "lawful benefit involved" (article 4b).
Stipulated that mothers had the preferential right to custody of their children. Custody was granted until the age of seven, with an opportunity for the court to extend the age if necessary (article 57).
Required that men and women be treated equally in matters of inheritance.
Considered talaq to be invalid if spoken by a man whose mental capabilities were lacking (i.e. in cases of intoxication or anger).
Allowed women to seek divorce through judicial means on grounds of injury or familial discord (Efrati and Coleman).
The law was not perfect and did in fact contain many loopholes. Women activists wanted tougher punishments for forcing women to marry, a ban on polygamy and temporary marriages, as well as protection against marriage by proxy, which could undermine a woman's right to consent by substituting a male guardian. Activists were also upset that men retained the right of no-fault divorce, where women had to prove injury, and that a woman's consent was not necessary to resume a marriage after a talaq divorce. At the same time, however, the law contained many provisions considered extremely liberal and progressive. The inheritance law was considered a radical departure from Islamic teachings. Women's groups argued that "differentiating between men and women in the issue of inheritance was not suitable for a progressive society" (Efrati, 12). Women were now entering the workforce and helping to provide for the family; therefore they should be allowed an equal opportunity to support their income with inheritances. When clerics decried this move, Qasim defended the provision by saying that the verse in the Koran calling for a daughter's inheritance to be half that of a son's was a recommendation, and not a requirement (Coleman, 3). Whatever the reason for the creation of the 1959 uniform personal status law, its creation gave Iraqi women a vast amount of secular rights, and gave them the most progressive rights for their sex in the Arab world.
CHANGES OVER TIME 1963-80
The decades of the 1960's and 1970's were characterized by coup d'etats and political unrest in Iraq, as well as by fluctuating economic wealth and development, all of which contributed to a redefinition of women's rights. On February 8, 1963 'Abd al-Salam Arif lead a coalition of nationalist Nasserite army officers and Ba'th party members in a successful coup against the Qasim government, bringing a new regime into power (Eppel 202). The 'Arif government, comprised of Ba'thist and Arab nationalists, was not united on ideological grounds, and factions within the parties were quickly at odds with each other. In March of 1963 they fought to amend the personal status law, instituting slight changes "regarding polygamy and repealing the provisions applicable to inheritance, replacing them with rules more consonant with the Shari'a" (Efrati, 4). Both 'Arif and Prime Minister Ahmad Hasan al-Bakr wanted to repeal the law completely which they saw as "irreconcilable with Islamic law," but were prevented from doing so due to infighting (Eppel, 216). These changes to the law proved to be temporary and were later amended in the 1970's.
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In 1968 yet another coup was launched, this time by the Ba'th party against 'Arif's brother, who had gained control of Iraq upon his brother's death. The Ba'th party stood for the power and unity of the Arab nation, and they rejected the "Sunni/Shi'ite rift" as an obstacle to this unity (Eppel, 232). In this vein they did not move to repeal the 1959 status law, in part because of its secular nature and also because they needed women to contribute to a stronger Iraq. The idea was that by empowering women personally it would encourage them to participate economically and politically. To facilitate their agenda the Ba'th introduced many state funded organizations aimed at redevelopment. Much like al-Rabita was created as a state controlled channel for women's participation in society, so too was the General Federation of Iraqi Women (GFIW) created when the Ba'th regime came to power in 1968 (Joseph, 182).
The women's groups of the 1970's and early 80's had a reciprocal relationship with the Ba'th leadership. GFIW members were "taught that they must serve and be loyal to the party and the state," and were "encouraged to participate in a expanding public domain of social, cultural, political, and economic activities," helping to build a more solid and economically viable state (Joseph, 183). Joseph also writes that GFIW staff "spent considerable time encouraging, among the membership, affection and loyalty to the head of the party and state, Saddam Hussein" (183). In exchange for their loyalty to the state, the GFIW was given the role of implementing the changes in the laws of personal status, were allowed to host conferences of activist women, and were elevated in the public eye by Saddam Hussein's "frequent pronouncements and public appearances lauding the work and leaders" of their organization (183). The Ba'th never let the GFIW go unchecked; women leaders were appointed by their party and its budget was derived from the state (Joseph, 182). What is most interesting is that it was men at the top of the Ba'th party's power structure that set forth the goals of the GFIW. One of these goals was "to ensure the equality of Iraqi women with men in rights, in the economy and in the state" (182). While other women's groups still operated, the GFIW took over as the main catalyst for the expression of female goals. With the creation of this group, women activists again channeled their energy into rectifying the changes made in 1963 to the personal status law, and to closing the loopholes resulting from the 1959 version.
THE NEW PROVISIONAL CONSTITUTION
In 1970, members of the General Federation of Iraqi Women decided the time was right to push for a new personal status law to replace the 1959 code and more importantly the restrictive amendments introduced in 1963. They pushed for greater reforms, and formulated a draft for a new family law that was presented to the regime in 1975 (Efrati, 4). While not all of their demands were met, several amendments to the personal status code were included in Iraq's Provisional Constitution in 1970 and 1978. Among the important changes:
Article 19 declared all citizens equal before the law (regardless of sex).
Divorce was permitted by judicial proceedings if the marriage took place before 18 years of age or without a judge's approval.
Forced marriages were nullified if not consummated, and divorce was allowed where the marriage was not consummated.
New punishments were set for forcing marriage and for preventing marriage.
Punishments were set for marriages contracted outside of the court
A man who contracted a second marriage (without judicial permission) could be imprisoned for 3-5 years.
A wife now had legal grounds for demanding a divorce if her husband took a second wife without permission by a judge.
A woman could now have a no-fault divorce if the marriage was not yet consummated and the marriage expenses were returned to the husband.
Situations under which a woman could obtain a judicial divorce were clarified and expanded, ex) adultery.
Maternal custody was extended to the age of 10. At age 15 the child could choose whom to live with (Efrati, HRW and Joseph).
The law still registered several shortcomings. It did not forbid marriages by proxy, did not go far enough with the maternal age of custody, and lowered the possible marriage age to 15 (from 16) if a judge saw that special circumstances prevailed. Another major blow to the hopes of women's groups was that no ban on polygamy was included. Activists still opposed article 3(5) which allowed a judge to decide whether wives could be treated equally (Efrati, 7). They contended that judges were "ill-equipped to make such a decision," and that equal treatment was an "impossibility, citing as reinforcement the Quranic verse which states 'Ye will not be able to deal equally between [your] wives, however much you wish [to do so]'" (7). Other articles that remained unchanged from the 1959 version included articles 34, 38, and 39, which allowed for divorce outside of the court, and ensured that "equal rights to divorce were not granted to women" (9). Still the changes in the 1970's, though slight, did encourage the women's movement. Also, in January of 1971, Iraq ratified the International Covenants on Civil and Political rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR), both of which provided equal protection to women under international law (HWR, 2).
The central question here is why did the Ba'th party pay attention to women's demands for greater opportunities and rights? Women activists had been vocal about instituting change since the 1920's, and though successful in seeing the 1959 law passed, they had not encountered many reforms since. Women's groups were partly responsible for the additions, but their activities alone do not explain the shifts in policy put into place by the Ba'th government. Among the new initiatives were Labor and Employment laws which passed, allowing women opportunities to participate in the civil service sector, maternity benefits that were introduced, as well as other legislation (HRW, 2). According to Human Right's Watch, the Iraqi Bureau of Statistics reported that in 1976, women represented about 38.5 percent of those in the education sector, 31 percent in the medical field, 15 percent of civil servants and 25 percent of lab technicians. Women were also accorded the right to vote in 1980. When one considers that the first female graduates of educational institutions didn't emerge until the 1940's, this participation is highly accelerated. This increased economic participation then paved the way for slight changes to the personal status law. As Joseph writes, "In so far as freeing women from familial controls to participate in the labour force and the polity was needed for the state-building programme, some revision of the personal status laws became necessary and useful" (184). Thus, during this time period, due to the economic expansion of the state, the regime saw fit to expand women's participation and facilitated this through political means, by amending the personal status law.
The 1980's and 90's were a hard time for all Iraqis, and women were no exception. Two wars and a decade of U.N. sanctions ensured that women's groups had other more pressing concerns than the continued fight to amend the personal status code. In 1972, with the nationalization of Iraq's main commodity, oil, the state's wealth increased and an economic boom contributed to advancement in education and the workforce for women. By the 1980's and 90's a slow-down occurred as these resources were diverted to pay for the Iran-Iraq war and later to the Iraqi invasion of Kuwait and the Gulf war that followed. Throughout these decades women again became a tool of the state. Whereas before they had been co-opted with political reforms, now women, under threat of personal or familial harm, were urged in the 1980's and 1990's to put the state first and family second. Loyalty to the state was absolute. Divorce was now used as a weapon of the regime. Noga Efrati writes, "women were encouraged to seek judicial divorce if their husbands evaded or deserted military service, defected to the enemy side, were convicted of treason, or held foreign citizenship and refrained from returning to Iraq for more than three years" (10). During these years the GFIW did manage to convince President Saddam Hussein to pass a few resolutions, in special cases, but to the advantage of only a small number of women.
Women in Post-Gulf War Iraq
Beginning in the 1990's women started to see a dramatic reversal in their personal status rights. Joseph writes that "the modest legal advances for women would be precariously balanced against the costs the Ba'th would incur by antagonizing other constituencies" (184). The constituencies he speaks of are those of the religious leaders and the tribal chiefs, the same people whose support Saddam needed to court in order to retain power throughout the wars. Saddam made a decision to "embrace Islamic and tribal traditions as a political tool in order to consolidate power" (HWR, 3). In this vein Saddam manipulated and created law wherever it served his political purposes. In 1988 he legalized honour killings in Iraq, "permitting men to kill their wives or female relatives if they were judged to have dishonoured the family name by committing adultery," which resulted in the deaths of an estimated 4,000 Iraqi women and girls (Tripp, 227, HWR). This reversal was a concession to Shi'a clerics. Women's access to the public and private sectors (including education) were also cut in order to ensure jobs for men during wartime and to help "appease conservative religious and tribal groups" (HWR). A combination of depressed economic and political factors in the late 1980's and early 1990's led to a regression of women's status and rights in Iraq, taking them back to traditional roles in the family.
The 2003 Invasion and the New Iraqi Constitution
With the U.S. led invasion in 2003, many activists both in and outside of Iraq expected a positive change in the status of women and hoped for the restoration of a progressive personal status code. The hope was that after removing Saddam from power, a new government, guided by an egalitarian Western power (the United States) would be able to resurrect and strengthen the original personal status law of 1959, ensuring more equal rights for women. Unfortunately it has been a bumpy road for female activists. The war and its aftermath have greatly reduced personal freedoms for all Iraqis, and attempts at preserving the personal status code have taken a back seat to preservation and personal safety.
Progressives and women activists initially suffered a setback when in December 2003 the Iraqi Governing Council (IGC), under the control of 'Abd al-'Aziz al-Hakim, the Shi'a cleric who leads the Supreme Council for the Islamic Revolution in Iraq (SCIRI), passed Order 137 which seemed to set aside the 1959 personal status law (Brown, 6). Hakim had long been in opposition to the progressive personal status code, and used his opportunity as head of the rotating governing council to pass a measure that instilled Shari'a and nullified the old code. According to Noga Efrati, women moved aggressively to fight Order 137, organizing a series of protests (1). One such protest drew activists representing "80 women's organizations," who carried placards that with slogans such as "We Reject Decree 137 Which Sanctifies Sectarianism and Division in Iraqi Society and Family" (1). Women's groups also held press conferences and high-level meetings with American provisional authorities to voice their concerns over the law, which in addition to nullifying an important code, was ambiguous and dangerous in its wording (Coleman, 3). Paul Bremer, leader of the Coalitional Provisional Authority, ended up vetoing Order 137, but the move by the Shi'a cleric foreshadowed the uphill fight women would have to face in a new, sectarian Iraq.
In the final draft of the Constitution women's status in the new Iraq has not been clarified. In the October 2005 document, article 14 states that Iraqis are equal before the law "without discrimination because of sex," but it also states that "no law can be passed that contradicts the undisputed rules of Islam" (Pollitt, 1). Whose version of Islam will govern is still up for debate. The law seems to indicate that Sunnis and Shi'a would be free to follow their own doctrine, and because it does not explicitly repeal or reference the 1959 law, scholars say the Constitution would appear to allow the continuation of the 1959 code of personal status for those who wanted to use it (Brown, 5). Shari'a law could mean the return of unrestricted polygamy, divorce by talaq, honour killings, and a public death for perpetrators of adultery (Weinberg, 1). The picture becomes even more unclear when one looks at the Supreme Federal Court, also established by the Constitution. This Court will be made up of "a number of judges and experts in Shari'a and law" (Pollitt, 1). It is unclear at this stage where there would be room for a civil court system.
While the women of Iraq and the National Assembly managed to be successful in keeping the 1959 law intact, it seems that the country is destined to be divided along religious lines. Even if Iraq remains a unified country, the religious and sectarian splits in law could make adjudicating disputes incredibly difficult. What would happen in the case of a Sunni woman who is married to a Shi'a man? Would she have the right to visit a Sunni or secular court, or if the country reverts back to its' patrimonial past, will she be forced to go to a Shi'a court. Perhaps she could pick whichever court is most advantageous to her cause. A Supreme Federal Court adjudicating on the basis of Shari'a is also problematic for non-Muslims residing in Iraq. If Shari'a is the law of the land, will non-Muslims also be subjected to it even though the constitution guarantees freedom of religion? The two main sects of Islam will most likely interpret family law differently, and women have gone from an even footing under secular law, to an unknown system that could test their resilience and forfeit their accustomed rights.
The fact is that the new Iraqi government has laid out a constitution which gives Islam a central role and which names the religion as "a basic source" of legislation (Pollitt, 1). Shari'a has been recognized as a legitimizing factor, and therefore if women and moderates hope to advance the cause of women's rights in the new Iraq, they will probably have to do so within an Islamic framework. In the recent past women in other nations have also faced a change in their status, with different outcomes.
One fear is the possibility of Iraq following in Iran's footsteps, which would be a disastrous blow to the women's movement and to the hopes of those that wish to see Iraq modernize. With the coming of Iran's revolution in 1979 and the attainment of power by religious clerics, the country's progressive family law was suspended and within a few months new Shari'a rulings "lowered the marriage age to nine, permitted polygamy, gave fathers the right to decide who their daughters could marry, permitted unilateral divorce for men but not women, and gave fathers sole custody of children in the case of divorce" (Coleman, 5). While a distinct possibility, this seems to be a fate Iraq has avoided with clauses in their Constitution that guarantee women an equal footing with men. Hopefully, Iraq will follow the letter of the law and will not suffer the same fate as Iran's family law codes.
Fortunately, there is precedent for a successful path to a change in women's status. Morocco and Indonesia have both seen extensive dialogue concerning their personal status codes, and each has discussed changes using Islam as a large part of their rationale. Morocco benefits from a large network of progressive nongovernmental organizations, which pushed to "raise the marriage age from 15 to 18, abolish polygamy, equalize the right to divorce, and give women the right to retain custody of their children" (Coleman, 5). As with Iraq, these progressive organizations were opposed by a large and vocal religious block within the country. In this case, the changes in the Shari'a-based personal status laws were facilitated by a modernizing monarch, King Muhammad IV. He backed the reformers and in October 2003 presented Morocco's parliament with revisions to the law, defending his changes with references to the Koran and thereby placing the new law above reproach from religious leaders (Weitzman, 394). Iraq may not have the NGO strength of Morocco, but with the emergence of a charismatic, forward-thinking leader, as well as pressure from women's organizations and others from below, a reform along the lines of Morocco's experience could be achieved.
In the case of Indonesia, grass-roots groups have started schooling women on Islamic jurisprudence so that they may hold their own religious debates. In 2004, Musdah Mulia, the chief researcher at Indonesia's Ministry of Religious Affairs, proposed changes to the existing Shari'a in the areas of "marriage, polygamy, and the wearing of the hijab" (Coleman, 5). She defended these changes in much the same way that King Muhammad of Morocco did, through references to
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