Changes to a law affecting Iraq society are on hold for now – that's a good thing

A girl holds a placard as activists demonstrate against female child marriages, in Tahrir Square in central Baghdad on July 28. AFP

Last month, a proposal was made to amend Iraq’s personal status law that was passed 65 years ago and has long been considered to be one of the most protective of women's rights in the Middle East.

Of late, that law has been the subject of much controversy, particularly in relation to the minimum marriage age. The law currently provides the legal age of marriage for both men and women is 18 years and some Iraqis are worried that the proposed changes could encourage child marriage.

The proposed amendments are also provoking divisions at a time of relative social stability in the country, and stoking fears that changes to the personal status law could lead to serious regressions of basic rights.

The draft law seeks to introduce monumental changes to Iraqi society in a rushed manner without significant preparation or debate. It was making its way through Parliament but was suddenly withdrawn before a second reading that was originally supposed to take place last week.

Its future is now uncertain, but it's clear that it should never have been submitted in the first place and certainly not in this manner. The draft illustrates much of what is wrong in Iraqi politics and policy formation today, a system that is imbued with division, populism and short-term gain.

Personal status laws are common to many Muslim-majority countries. They govern issues of marriage, divorce, inheritance and child custody. In countries where there are several Muslim denominations in significant numbers, such as in Lebanon, there are typically several personal status laws.

Iraq’s personal status law was adopted in 1959 by the country’s first republican government. Iraq was and remains a religiously diverse country. At the time the law was passed, Iraq was highly undeveloped, particularly in rural areas. Women were often deprived of basic rights, including being forced into early marriage.

The 1959 law was adopted as part of an effort to iron out religious differences and to eliminate such practices against vulnerable groups. To date it applies to all Muslims regardless of denomination. It also draws from the most progressive aspects of different Islamic traditions. Hence the minimum age of marriage, as mentioned earlier, is 18 years (15 in exceptional cases, and under strict conditions). The law also removes authority from religious clerics to decide on family and inheritance issues and grants them to judges.

While this runs contrary to common practice in the region, it is not entirely without precedent or equivalent elsewhere. Tunisia’s personal status law also departs from Islamic tradition in several important respects.

The current framework in Iraq is not without its flaws. Implementation, in particular, has been problematic. It can be common for illegal marriages to take place outside the state’s knowledge. By some estimates, up to 20 per cent of marriages are illegal, particularly in poor and rural communities.

Since the 2003 US-led invasion of Iraq, Islamic parties have been playing a dominant role in politics and in society. In that capacity, they have sought to repeal the 1959 law on a number of occasions and to revert to a more traditional application of personal status laws, as determined by the religious establishment. Early attempts were made in 2003, 2014 and 2021, all blocked because of a lack of support.

The issue also arose in 2005, during the drafting of the Constitution. Article 41 provides that Iraqis are “free in their commitment to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law”. While that provision is clear, without any implementation legislation, it has not yet been fully applied.

Last month the issue was resurrected once again. Raed Al Maliki, an independent MP, introduced a proposed amendment to the 1959 law that is all of one page long. This current draft proposes to maintain the law as is, while giving Iraqi Muslims a choice between applying the provisions of the 1959 law and applying the religious rules of their choice.

The current proposal is symptomatic of Iraq’s particular brand of ethno-sectarian politics, which is imbued with its own style of populism. Even as Iraq is experiencing a period of relative calm – security in most parts of the country has greatly improved and there is no immediate threat of social unrest – the proposed amendment may accentuate divisions merely for political gain.

In this version of populism, the enemy is perceived to be international feminists, secular Iraqis, progressives and anyone who is committed to well-established state traditions (including judges). The spoils, however, are electoral favours within each proponent’s religious community.

The proposal is also symptomatic of Iraq’s failed policy-making process. The draft proposes to introduce huge social changes, without having carried out any thinking process to back it up. No white papers or dialogue processes have been carried out; no papers commissioned on what the proposal’s implications might be at the individual or societal levels.

For example, while the proposal’s defenders have denied that the draft will allow for child marriage, they do not make any suggestions on how to tackle child marriages that are already taking place. If left unchecked, and if no specific wording is included on this issue in the draft, proponents of the practice could very well feel emboldened.

In defence of the draft, some have argued that if adopted it will encourage couples who have entered into illegal marriages to register them. However, that is a mere conjecture. Under current legislation, only judges can officiate marriages, and it is a criminal act for others to do so. It is also a criminal offence to violate the minimum marriage age. The draft law does not offer a pardon for any of these acts, which means that they will still be punishable under the law.

In addition, while the draft law purports to give Iraqis the right to choose their own personal status rules, it seeks to propose a single religious colour on all Sunnis and all Shiites, even though both houses are internally divided. Many Iraqi Muslims do not fall so neatly into either category. There are, for example, a great many Shafi'is in Iraq who have different beliefs to Hanafis, who are a majority among Sunnis. And yet Shafi’is are not recognised by the draft law, in what appears to be a clear violation of Article 41 of the Constitution.

The draft also says nothing about what should happen in case of forum shopping, particularly by men. In the event a man who is in dispute with his wife decides to change his denomination in favour of the set of rules that are most favourable to him, what set of rules should apply? Iraq does not have civil registries that crystallise a Muslim’s specific denomination, so switching from one set of rules to another could be very easy, and therefore potentially very damaging, particularly for women.

None of these issues have been properly considered in the current debate. The proponents of the draft and other policy-makers would do well to withdraw the proposal and replace it with a meaningful process that seeks to modernise personal status questions, and initiate processes that would reduce abuses, particularly of vulnerable women.

A white paper on these questions that is informed by expert opinion and by rational discussion could serve as an example of how a modern state modernises critical legislation of this type.

Now that the second reading in Parliament has been suspended, there are suggestions that this may already be happening. If so, what started as a potential trainwreck could end up being an example of how groundbreaking legislation should be debated and adopted in a real, functioning democracy.