In Iraq, the personal is political: The raging debate on child marriage and what's really at stake

In the past two months, heated debates have taken over Iraqi political and media scenes around a proposed amendment of the Personal Status Code submitted over the summer to Iraq's parliament.

Adopted in 1959, Law 188 of the Personal Status inscribed a set of laws, separate from the Civil Code, that gathers the rights and duties of Muslim citizens in matters of marriage, divorce, child custody, and inheritance. 

The proposed amendment breaks the current code in Iraq that gathers Muslims under one regime of rights by allowing separate sets of laws based on Shia and Sunni jurisprudence. Marriages would be contracted according to the chosen jurisprudence, as opposed to abiding by the existing law.

The debates go as such: on one side, several Shia political parties in power since the US invasion of 2003 have advocated for the introduction of a sectarian code. They insist on the importance of aligning all laws to the “Sharia” and to the Jaafari jurisprudence for Shia Muslims.

They accuse their opponents of questioning fundamental religious and cultural values and being agents of the West. In the recent period, they also rejected an article of the Personal Status Code that grants child custody to the mother, arguing that it contradicts the Sharia that grants it to the father.

Meanwhile, women and human rights advocacy groups, a network of intellectuals and media figures, and a wide range of political opposition have strongly mobilised against the proposal.

Organised around the coalition Alliance 188, women and human rights groups have argued that the amendment radically undermines a law that is considered fair and uniting for Shia and Sunni Muslims. The law in its current state guarantees fundamental rights for women such as the minimum age of marriage, the right to divorce, and the custody of their children.

They state that allowing for separate sectarian codes is divisive in a context marked by the dominance of sectarian tensions, and the rise in the past decades marked by war and militarisation of misogynistic and patriarchal norms, especially when political violence rules. Interpretations of the dominant Shia school in Iraq, the Jaafari jurisprudence, determine the age of maturity for girls as early as nine years old and allow for different types of precarious marriages with very few rights for women.

If adopted, the proposed amendment will provide a legal ground for child marriages, an already widespread phenomenon in the country, and for marriage unions that do not offer any legal protection for women. The coalition also pointed out the structural weakness of the parliament and the use of anti-democratic methods such as intimidation, threat of violence, and lack of transparency used by the Shia political groups to enforce the amendment.

These debates are often portrayed as the fight between religious forces trying to impose regressive and misogynistic Sharia laws, and secular forces opposing religion and defending women’s rights. But this is a caricature of the debate, and it does not allow us to understand what is truly at stake here.

A conflict between secular and religious forces in Iraq?

The Personal Status Code in Iraq is not a secular law, it does not place “personal matters” for all citizens of all religions and sects under the authority of the Civil Code.

It places Muslims under the authority of specific interpretations of Shia and Sunni jurisprudences that were negotiated by several actors, including ulemas — body of Islamic scholars — of both schools, over the decades preceding the establishment of the law 188 in 1959.

Put simply, these debates stand at the intersection between state-building and nation-building in the colonial and postcolonial eras, a process that involves various social and political groups competing for power and legitimacy, and that is deeply classed, raced, and gendered.

The mobilisations around the Personal Status Code are not new. Similar proposals have been made by several Shia political parties almost every few years since the US-led invasion and occupation of 2003. The proposals are always met with strong opposition from feminists and progressive groups and widely rejected by Iraqis themselves, Shias and Sunnis alike.

The obsession with attacking the Personal Status Code started straight after the invasion, with Decree 137 the brainchild of Abdel Aziz al-Hakim, the leader of the Islamic Supreme Council of Iraq, one of the main Shia political parties that came to power with the US-led invasion.

Decree 137 was an attempt to abolish the Personal Status Code altogether and replace it with sectarian codes. While this attempt failed partly due to feminist mobilisation, it was reintroduced in the form of article 41 of the Constitution adopted in 2005 which inscribed the freedom for Iraqis to choose their “personal status” based on their religious and sectarian beliefs. Article 41 was contested at the time by feminist groups, and it is often cited by the Shia political groups as a legal ground for their proposed amendment.  

The dynamics of the 2003 US-led invasion had a lot in common with those of the establishment of the modern state during the colonial era. Like the British did in the 1920s, the Americans privileged a fragmented, sectarian, and tribalised version of citizenship, establishing a political system based on communal quotas — the muhasasa system — and allying themselves with the most reactionary forces.

In many ways, article 41 of the Iraqi constitution, drafted and voted in the context of a brutal occupation, and the repeated proposals to establish a sectarian personal status law constitute an ‘Americanised’ version of the Iraqi political system that Shia political parties in power have appropriated, along with its liberal argument of the “freedom of choice”.

The proposal, if adopted, would mean a return to a legal system that dates back to the time of the monarchy and its religious, tribal, and sectarian courts, and the erasure of the legacy of the first Iraqi Republic.

The legacy of the first Iraqi republic was shaped by the anti-imperialist leftist culture of the 1950s that established the authority of the emergent state over various political groups, including colonial powers and religious authorities.

Furthermore, the establishment of the Personal Status Code marked the participation of women’s groups represented in 1959 by Naziha al-Dulaimi — a communist and leader of the Iraqi Women’s League and then Minister — in the negotiation of their rights. It was then considered one of the most progressive of its kind in the region.

At the time of its drafting, the slowly emerging Shia political groups contested the law seeing it as undermining their power. The main forces advocating for citizenship based on equality, rather than on a special set of laws based on gender and sect, were the leftist revolutionary forces. The most radical among them in the 1940s and 1950s demanded that “personal status” be placed under the Civil Code that grants equal rights for all citizens regardless of gender, sect, or religion. In many ways, one can argue that despite their visible opposition, the interest of religious and sectarian forces coincides with the ones of the colonial and neocolonial powers then and now in one fundamental point: undermining the progressive political forces that advocate for citizenship based on equality in a strong and sovereign state.

However, the Shia political groups that have been pushing for this amendment since 2003 are not the political minority they were under the British-backed-monarchy of last century. They have, since 2003, been at the centre of political power. One wonders what it means for them to assert their sectarian-religious identity when it is already hegemonic in the country.

The personal and the private

Since its inception, at every moment of crisis, at every turn of major political events, the Personal Status Code has been subject to reforms. The authoritarian Baath regime also used it as a political tool at various historical moments. 

The dominant ideology and polity of the Shia political elite that was brought to power by the US-led invasion of 2003 have proven to be, particularly anti-democratic, brutal, self-serving, sectarian, misogynistic, and masculinist.

It has facilitated the fragmented ethnosectarian political system put in place by the US invasion and occupation and fueled through its various armed groups (many of which are allied with the Iranian regime) political violence that is both sectarian and gendered.

After decades of war and militarisation, violence is the language of masculinity and the language of power.

Very importantly, this political elite in Iraq has also facilitated the dismantlement of the state and its institutions, and all mechanisms of wealth redistribution, the privatisation of everything that sustains urban living from access to electricity, water, to health and education.

In the past year, the dominant Shia political elite have launched repeated attacks on women’s rights and gender equality, from the passing of an anti-LGBTQ law to banning the use of the word gender.

They have used anti-Western conspiracy theories and “sexual morality” panics as a smoke screen to distract public opinion and as a tool to undermine the opposition and justify violent crackdowns on protests and dissent.

In many ways, these attacks can also be seen as an illustration of the gradual loss of popularity of these groups who are perceived as responsible for the dire social, political, and economic realities, and the generalised violence that dominates Iraqis’ everyday lives. Their strategy is also constitutive of the Shia-Shia power competition as each group is looking to assert itself over the other and of the hegemony of Iran in Iraq’s political affairs.

This debate also shows how power operates in Iraq and the contemporary world. Women’s rights and gender issues are at the heart of systems of power, a nexus through which power is asserted, deployed, or confiscated. These forces portray themselves as the bearers of the authentic local culture and as protectors of religion.

However, their strategy is a programmatic version of a classically masculinist, neofascist, far-right discourse that is found in the region, and in the world from Hungary and Japan to the US and France. Unsurprisingly, these forces also have in common the gutting of all social protections and public services and depriving poor and working-class people of access to essential resources and rights.

The logic of privatisation of power, services, and resources, has been constitutive of the polity brutally led by the US invasion and carried out by these groups since 2003.

It is what the October 2019 uprising against the post-2003 regime in Iraq has powerfully denounced. It has demanded a democratic, sovereign, strong and functioning state that treats its citizens equally regardless of sect and gender, and redistributes the country’s rich resources to the benefit of the poor and the marginalised.

 The systematic attack by the Shia political elite on legal and political mechanisms that grant rights and freedom to its citizens, especially women and marginalised groups, has the effect of keeping feminists and progressive activist groups in a defensive mode as they are forced to fight to preserve the limited existing rights instead of pushing for more rights.

Iraq's Personal Status Code is patriarchal, and as activists have argued in their campaign to adopt a law sanctioning domestic violence, women and marginalised groups need more rights and more protection. So far, the diligent efforts of Alliance 188 have managed to delay the parliamentary discussion of the proposed amendment and is working towards a withdrawal of the proposal altogether.

However, the mobilisations of women and a wide range of activists and intellectual forces in Iraq around these issues, instead of being inauthentic, have shown that the progressive legacy of the past century continues to reemerge against all odds.