The proposed amendment of the Iraqi Personal Status Law treats women as slaves and objectifies them. It is against Iraq’s international obligations, and against any initiatives to develop the legal and judicial system that could be adopted by any country to promote and protect its citizens’ rights. Islamic representatives in the Iraqi Parliament proposed a draft of the amendment of the active Iraqi Personal Status Law. Most Iraqi citizens, non governmental organizations’ leaders, especially women rights organizations, expressed their disappointments and stood against it. They believe this amendment targets the achievements and rights that they have fought for. Many human rights activists, legal professionals, civil unions and institutions, and the Iraqi Bar supported Iraqi women’s campaign against the proposal of this amendment. IOHRD, as a human rights organization, supports the efforts to disregard the proposed amendment of the Iraqi Personal Status Law. IOHRD thinks this amendment treats Iraqi women as slaves and objects. It thinks that this amendment is a terrible backward step of Iraq’s international obligation to promote and protect women’s rights. After a close look at the proposed amendment, IOHRD reached the following comments:
The proposed amendment is against article 41 of the Iraqi constitution that gave the Iraqi citizens a wide range of choices to regulate their personal status according to their religion, doctrine, beliefs, and choices. However, the proposed amendment eliminates the options to only two of these, the law, and whatever their choice of doctrine (Article 3/A)
All Personal Status laws and norms that are established based on a doctrine identity are basically considered discrimination against women. Permitting many legal systems to regulate the same topic itself is considered discrimination against women.
The proposed amendment ignored the fact that the Iraqi society has adopted a unified personal status law for many decades. For example, this unified law legitimized only one type of marriage, a permanent marriage that is governed, and protected by the active law. While under the proposed amendment( article 3/A) many forms of marriage are permitted, depending on the parties’ religious group( Sunni or Shi’a) such as the temporary marriage, Misyar marriage, Al misyaaf marriage, Al Misfaar Marriage, Mihjaaj Marriage, —etc. Certainly, all these forms of marriages have results and consequences that the Iraqi courts, judicial system, and legal institutions are not ready and do not have the capacity to deal with.
The proposed amendment will cause the instability in the iraqi judicial precedents, and jurisprudence because it gives the iraqi citizen the option either to follow the Iraqi Personal Status Law, or to follow their religious group doctrine. However, citizens who choose to follow the religious group rules and doctrine in regulating their personal status will follow unstable, contradictory, and conflicting rules because each religious leader has different a opinion, prospective, and fatwa.
The proposed amendment causes significant discrimination against other religious doctrines because it eliminates citizens’ options to regulate their personal status, and gives the power of “ Iftaa” ( decision making) to only two major religious doctrines which are the Jaffari Immami (Shiaa) and the Hanafi (Sunni), and by doing so, ignoring other religious groups ( Article 3/G&D). In fact, The proposed amendment ignores the fact that even these two major religious doctrines( Sunni and Shi’a) themselves are divided into many subgroups. For example, the Shiaa doctrine, as well as the Sunni doctrine, has at least more than four sub groups . In Addition, this amendment ignores another fact: there are many existing religious groups in Iraq, other than the two mentioned, who also have followers. Forcing other religious groups’ followers to follow other doctrine’s rules and orders to regulate their personal matters violates their rights which was secured by article 41of the Iraqi constitution.
The proposed amendment will exhaust the judiciary system by making the Iraqi courts mock courts, having no power to resolve the actual disputes. Instead, the Iraqi courts will act as a coordinating institution between the Iraqi citizens and the legitimate authority represented by the role of Iftaa (religious leaders who make decisions) but not the law ( Article 3/B) which obligates the court to follow the decisions of Iftaa (the religious doctrine decision) to initiate and reason its judgments and orders.
The proposed amendment encourages and increases minors’ marriages by giving the religious leaders the legitimacy to authorise such marriages. Based on the Iraqi supreme judicial council’s statistics, a huge number of divorce cases were recorded for marriages out of courts.
Following the doctrinal option to coordinate and manage the personal status will increase the discrimination against women and strengthen the male dominance which will lead to the full control of people’s family matters and personal status. Examples of these discriminatory provisions:
Provisions related to the age of marriage, and provisions that give males the power to allow minors’ marriage. These provisions will lead to force marriage on nine year old girls with the consent of their guardians based on the religious point of view, which does not specify marriage age, but relies on the physical and mental capacity of the parties, which is a very flexible measure.
Provisions that required the male consent of the marriage of virgin adult female.
Provision related to the deprivation of female heirs from inheriting any real estate from their deceased father, and give all real estates to the male heirs.
Provisions that give the father full children’s custody and deprive the mothers from the very young children.
Provisions that permit the forced marriage after the wife post marriage consent and permit the “Fidhuly Marriage.”
Provisions that adopt the husband’s faith and religious doctrine to determine the legal reference and disregard the wife’s will.
Provisions regulating the polygamy.
Other provisions that regulate the relationship between the male and female such as “ Mulk Al yameen”
9. The proposed amendment encourages the no-punishment policy by giving the legitimacy to the forced marriage contracts after the female post marriage consent. Such policies don’t punish the male who forced marriage on a female who post consent such marriage (Article 5/1).
10. The proposed amendment in Article 8 violates the judicial authority’s power, especially the federal court power. It gives the proposed amendment immunity against any revocation by the federal court, unless the federal court gets consent from the Islamic doctrine experts to do so. As known, these Islamic doctrine experts have technical and islamic science knowledge without legal background or knowledge that is required to resolve disputes. In conclusion, the application of the proposed amendment is considered a huge, unpreferable interference in the judicial independency and waste of the federal court’s efforts and expertise. Moreover, it is consider as a clear violation of the Iraqi constitution.
Considering IOHRD’s comments above, and based on the United Nations recommendations to Iraq as a part of the international contractual mechanism, or under the comprehensive international review, IOHRD recommends Iraq parliament to stand against and reject the proposed amendment of the active Iraqi Personal Status Law and open a productive conversation with the community, non governmental organizations, and human rights activists to discuss the reasoning, benefits, and goals of any future amendment of the active Personal Status Law, ensuring and securing the protection of human rights in general and women’s rights, specifically achieving the unity of Iraq and its legal system. Thus, IOHRD supports the idea of adopting the uniform legal system that can secure and protect a wide range of women’s and children’s rights.
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