Human rights advocates and religious leaders are outraged after an overwhelming majority of the Iraqi Council of Ministers voted in favor of a contentious personal status draft law last month, which implicitly legalizes pedophilia, rape, and prostitution as long as they fall within the boundaries of a sharia-based marriage.
The draft law, put forward by Justice Minister Hassan al-Shimari and approved by 21 of the 29 ministers, lowers the age of legal marriage for females to 9 years old and for males to 15 (article 16), permits unconditional polygamy (article 104), stipulates that women over 18 years of age still need fatherly consent for marriage, and gives the husband the right to sexual intercourse even without his wife’s consent (article 101).
Moreover, the bill prevents a woman from leaving her marital home or entering the workforce without her husband's permission. The law further states that a husband is not required to financially support his wife if she is in a condition where she is unable to sexually satisfy him (article 126).
The law also states that the father is the sole guardian of his children at the age of two in divorce cases, and forbids Muslims from marrying non-Muslims (article 63). Believed to be at the forefront of women's rights in the past, Iraq now ranks 21st out of 22 Arab states in a poll of 336 gender experts released in November 2013 by the Thomson Reuters Foundation.
Prior to the US invasion in 2003, Iraqi women enjoyed favorable socioeconomic conditions that precipitously declined in the past decade, ending with this new draft law which threatens to strip women of their basic rights. Yasmine Jawad, an independent Iraqi sociologist and a social researcher in women and development, told Al-Akhbar the law "is the final nail in Iraq’s coffin."
"The law has provisions that shamelessly degrade and dishonor women," Hanaa Edwar, a prominent women’s rights advocate in Iraq and secretary general of the Iraqi al-Amal Association, told Al-Akhbar. Edwar is supported by Yanar Mohammed, the president of the Organization for Women’s Freedom in Iraq and a leading secular activist, who said, "the draft law is an abuse of children’s rights and their bodily integrity."
The bill has been dubbed the "Jaafari Law" after the Shia Jaafari school of Islam, which some claim is the basis of many of the proponents in the law. Yet many Shia clerics in Najaf, including Najaf’s highest-ranking cleric Grand Ayatollah Ali al-Sistani have already distanced themselves from it, while others have stated it has nothing to do with the Jaafari school.
Furthermore, if passed, the law will only apply to Iraq’s Shia Muslims, the majority of the population, dividing the now unified judicial courts into religious courts headed by clerics."This law serves as a ground well suited for destroying and dividing the country under religious and sectarian pretexts," Haitham al-Nahi, director general of the Arab Organization for Translation, told Al-Akhbar, "this is exactly what the US hoped will eventually happen."
"Liberty for the Iraqi people is a great moral cause and a great strategic goal … They can one day join a democratic Afghanistan and a democratic Palestine, inspiring reforms throughout the Muslim world…These nations can show by their example that respect for women… can triumph in the Middle East and beyond."
Former US president George W. Bush told the United Nations in September 2002, just a few months prior to his invasion of Iraq. On the eleventh anniversary of the US invasion and occupation of Iraq— a war considered illegal by the international community, and which left behind two million widows and five million orphans, provoked sectarian strife and empowered religious radicals— the proposed 'Ja’afari law’ proves that Iraqi women are anything but "respected" and "liberated."
"The US has decided to let go of women’s rights," Yanar Mohammed told reporters back in 2010. Embarking on cultivating allies with religious groups, Bush and his administration sought the complete destruction of Iraq’s nationalist movements, including women’s rights movements, by appointing officials not by merit but by religion and ethnicity from day one.
By doing so, the US effectively incited sectarian violence, deepened ethnic divisions, and solidified Islamic political power by supporting right-wing Islamic forces in order to undercut left-wing movements that threatened capitalism and the imperialist domination of the Middle East. Despite all the rhetoric of "women’s rights" and "liberation," US practices aided in the Islamization of the puppet government.
The Iraqi puppet government has given rise to an extreme theocracy, pushing for laws based on resolution 137 and the new Iraqi constitution crafted by the US. "The personal status draft law is based on resolution 137 that placed family laws under the rules of sharia and abolished laws that contradicted the 'established rulings’ of Islam," Ammar Tohme, head of Fadhila Parliamentary bloc, told local media in defense of the draft law.
In December 2003, just a few months after the toppling of Saddam Hussein, US-selected members in the Iraqi Governing Council voted behind closed doors for resolution 137 in the now-dissolved Transitional Administrative Law, which annulled Iraq's secular legal code and vaguely implied that each religious community apply its own tradition.
"But resolution 137 was overturned after strong opposition by Iraqi women's groups pressured Paul Bremer, the administrator of the Coalition Provisional Authority of Iraq, to reject the vote," al-Nahi assured. "Approving the draft law is the core of freedom.
Based on article 41 of the new Iraqi constitution, each component of the Iraqi people has the right to regulate its personal status in line with the instructions of its religion and doctrine," Hussein al-Muraabi, a lawmaker and Fadhila party leader, told local media.
"In particular, article 41 of the new constitution upon which this law is based has not been approved by the members of parliament and has not been amended yet," Edwar commented, "which makes this proposal illegal."
The proposed law is inconsistent with article 14 of the new constitution, which states that "Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status," and article 13 which stipulates that it is the "supreme law" in Iraq and that "no law that contradicts this constitution shall be enacted."
Not just inconsistent with local law, the "Jaafari Law" also violates international legislation. Basma al-Khateeb, humanitarian worker and women’s rights activist who represented a coalition of more than 100 Iraqi NGOs in the 57th session of the Committee on the Elimination of Discrimination Against Women (CEDAW) in Geneva, told al-Akhbar that "Iraq’s Council of Ministers should withdraw the new draft law and ensure that Iraq’s legal framework protects women and girls in line with its international obligations."
The draft law violates the CEDAW, which Iraq ratified in 1986, by giving fewer rights to women and girls on the basis of their gender, and the Convention on Rights of the Child, which Iraq ratified in 1994, by legalizing child marriage, putting girls at risk to sexual abuse, and not basing custody decisions on what falls in the best interests of the child.
Yet, al-Shimari, who proposed the law, continues to insist the bill "protects women from injustices," and prevents illicit child marriage, which has been on the rise ever since in the US invasion, outside established legal systems. Other lawmakers have also voiced their support of it, claiming it does not violate citizens rights. "The Jaafari law does not bound all Muslims to abide by it.
It does not eliminate the 1959 Personal Status Law but rather allows multiculturalism and freedom of choice for all citizens," said Amir al-Kanani, a prominent Sadrist official. "Abolishing poverty and encouraging education is what protects women and reverses Iraq’s growing child marriage problem," Edwar commented, "legalizing such practices is a form of encouragement not prevention."
"Passage of the Jaafari Law would be a disastrous and discriminatory step backward for Iraq’s women and girls," Joe Stork, deputy Middle East and North Africa director at Human Rights Watch, said in a statement. "This personal status law would only entrench Iraq’s divisions while the government claims to support equal rights for all."
Nadje al-Ali, a professor of gender studies at the School of Oriental and African Studies in London and co-author of the book "What Kind of Liberation? Women and the Occupation of Iraq," told Al-Akhbar, "the law seeks social and political conservatism and religious authoritarianism, not religious freedom." Likewise, according to Iraq’s first shadow report submitted to CEDAW by the coalition last month, the notion that the law celebrates freedom of choice is "legally a deceptive allegation."
The report considers the law to be "a preliminary step to issue more laws for the Personal Status Law for each and every religion and sectarian division," similar to that of Lebanon, "the country that has not witnessed any peace and stability since its independence…. where multiple Personal Status Laws are core keystones that provoke the absence of nationalism among the Lebanese and cause the bloodiest sectarian conflicts ever."
"People should be granted the freedom to choose the personal status law that is in accordance with their religious doctrine," al-Shimari added, "we shouldn’t force believers to abide by legislations that are inconsistent with the fundamental provisions of Islam." Iraq’s Association of Muslim Scholars have also voiced their disapproval of the new draft law.
Last week the association issued a statement arguing that the already existing 1959 law serves the interests of the country’s citizens as it is "the outcome of consultation with specialists in Sharia law and civil law representing all Iraqi people."
Iraq’s current personal status law, Law 188 issued in 1959 when the Iraqis overthrew the British-enforced monarchy, "is considered to be the most protective of women's rights in the Arab countries," al-Ali said.
Held up as the most progressive in the Middle East with respect to women’s rights, the 1959 law prohibits marriage under the age of 18 for both male and female, restricts polygamy, bans forced marriages, protects women from domestic violence and sexual harassment, establishes at least partial equality between women and men as it guaranteed equal male, female workforce and equal pay, grants women paid maternity leave, and denies favoritism to men in inheritance, divorce, and child custody.
The law also fosters cohesion between different religious communities by "eliminating the differential treatment of Sunnis and Shia under the law" and allowing a Muslim male to marry a non-Muslim female without restrictions. In 1976 Iraq enacted compulsory education for both sexes.
In 1979 Iraq legislation for the eradication of illiteracy was passed, and in 1982 Iraq received the United Nations Educational, Scientific and Cultural Organization (UNESCO) award for eradicating illiteracy, and by 1985, female literacy rates were 87 percent, the highest in the region. It wasn’t until the 1991 Gulf War and US-led economic sanctions against the regime that women’s rights in Iraq began to deteriorate.
The US war and occupation only continued what the sanctions had already started. Iraq, which began to suffer from suicide bombings only after the entry of Western forces in 2003, has thus far experienced over 1,500 attacks, most a result of ethnic antagonisms and sectarian factionalism.
This deterioration of security and stability has promoted a rise in religiously driven political extremism, which has had a profound effect on women's rights. "This is the legacy of the American 'liberation’ of Iraq," al-Nahal affirmed.
"The law is meant to be manipulated by political blocs in hopes of collecting gains in the upcoming elections," al-Khateeb added, "it gives clerical institutions more power and tribal risings more dominance which attracts religious voters."
The parliament must still ratify the proposed bill before it becomes law which is unlikely to happen until after parliamentary elections scheduled for April 30, 2014, and after the supreme Shia religious authorities (marji’iya) approves the draft, which it has not done yet.
"My whole family are Shia and they all denounce this law," Jawad exclaimed, "the sectarian political parties are using Islam as a cover up to their repugnant violations of women's rights."
By: Rana Harbi
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