Welcome to Iraq’s Shia theocracyPlans by Iraq’s Shia-led government to institute Sharia family law have come under fire, writes Salah Nasrawi
Iraqi security forces search for weapons during clashes with Al-Qaeda-linked Islamic State of Iraq and the Levant in the city of Ramadi, 100km west of Baghdad (photo: Reuters)
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 law, 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.