By Hajer Naili
Thursday, April 17, 2014
The draft law has made international headlines, mainly for provisions allowing girls as young as 9 and boys as young as 15 to marry. But when questioned on the likelihood that the text will be passed, one expert said: "I would say it is less than 50 percent."
Credit: The U.S. Army on Flickr, under Creative Commons
NEW YORK (WOMENSENEWS)--A bill to roll back the rights of Shiite women and children in Iraq has generated shockwaves in the West, but analysts with knowledge of the country say odds are against its passage.
Manal Omar describes the bill--which would allow some girls as young as 9 to legally marry--as political bait to bring conservatives out to vote in the April 30 legislative elections.
"I think the primary message here is a way to invigorate the masses before the elections," says Omar, associate vice-president for programs in the Middle East and North Africa region at the United States Institute of Peace, based in Washington, D.C. "People who are not going to vote tend to be more from the tribal and conservative parts and more of the working class groups."
Omar traveled last month to Baghdad where she spent March 8, International Women's Day, with women's rights activists who oppose the bill. "There is a very strong concern among Iraqi women's activists," Omar said in an April 16 phone interview. However when questioned on the likelihood to see the text passed she responds, "I would say it is less than 50 percent."
Among other initiatives to stop the bill's passage, the Arab Human Rights Academy, based in London, has launched an online petition to demand the text be abandoned.
The draft law stipulates that Iraqi Shiites refer to Islamic Sharia for such personal status issues as marriage and divorce, as well as issues of inheritance and adoption.
The text has made international headlines mainly for provisions allowing girls as young as 9 and boys as young as 15 to marry. The same text allows an even younger girl to be married if her parents give consent.
Beyond early marriage, other provisions say a wife cannot leave the house without the permission of her husband. A husband is granted the right to have sex with his wives without their consent, which is understood as a legalization of marital rape. Custody is automatically granted to the father of any child over 2 years old in the case of a divorce.
Muslim men can also no longer marry non-Muslim women. The exception would be so-called temporary marriages. "Article 63 of the proposed Jaafari draft law . . . prevents Muslim males from permanently marrying non-Muslim females. They are only permitted to do so temporarily, that is, for sexual pleasure," writes Muhannad Al-Ghaz in an article for Al-Monitor, based in Washington, D.C., that discusses in detail several articles of the draft.
Iraq's current personal status law of 1959 is widely regarded as one of the most liberal and secular in the region. It sets the age of marriage at 18 for both girls and boys, prohibits arbitrary divorce, restricts polygamy and guarantees equal inheritance for men and women.
Omar says that when she was in Baghdad last month an Iraqi female politician, a Shiite who supported the bill, described it as a bit of "over compensation" to reaffirm the Shiite identity of Iraq after decades of rule of the secular Baathist regime of Saddam Hussein under which Shiites were persecuted.
Omar cautions Western media and organizations against portraying the bill in terms of secular versus Islamic. "I think what would be more helpful is for organizations to point out that these laws, the way they are being interpreted, are un-Islamic."
Most Islamic scholars agree that a marriage without the consent of the bride or performed under coercion is illegal. And the Quran permits Muslim men to marry non-Muslim women, specifically one from the "People of the Book," which includes Judaism and Christianity.
Haider Ala Hamoudi, a law professor at the University of Pittsburg who advised the 2009 Constitutional Review Committee of the Iraqi legislature on behalf of the United States Embassy in Baghdad, has analyzed the text.
In a phone interview he called it sloppily drafted and poorly organized. "I just dismiss it as publicity to garner votes."
In a March 31 article in the Jurist, Hamoudi lays out the obstacles to transforming religious texts into actual laws and calls the text something of a "political stunt." In the article he quotes Ayatollah al- Bashir Najif, a leading Shiite, as criticizing the bill as "rife with flights of fancy in legal and juristic formulations that render it impossible that a jurist would find it acceptable."
The Jaafari Personal Status bill is named after the Imam Jaafar al-Sadiq, founder of the Jaafari school of jurisprudence and the sixth Shiite imam. It would apply to Iraqi Shiites, who make up about 60 percent of the population.
In late October, Iraqi Minister of Justice Hassan al-Shimari sent a copy of a draft to the cabinet for review. On Feb. 25, the Council of Ministers approved the text, but no date has been set for discussion by lawmakers.
Shiite politicians have tried to change the personal status law before.
In late 2003, the Iraqi Interim Governing Council issued Resolution 137 to replace the existing 1959 law by expanding the power of Muslim courts to rule in all disputes on family matters. The resolution was eventually annulled in 2004 by Paul Bremer, the U.S. administrator of the Coalition Provisional Authority of Iraq, after human rights groups indicated the resolution would erode women's rights in the country.
In the fall of 2005, the current constitution--which had U.S. drafting oversight-- was approved in a referendum.
That constitution resurrected Resolution 137 through Article 41, Isobel Coleman, senior fellow at the Council on Foreign Relations, wrote in an article last month in Foreign Affairs. Article 41 is described as saying 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."
"The seeds of the Jaafari bill were planted specifically in Article 41 of that constitution, which had been highly controversial from the outset," Coleman wrote.
In a phone interview, Coleman said it was expected that this article would have a "negative effect on women's rights, minority rights and would also exacerbate sectarian tensions in the country."
Coleman believes the bill is likely to be tabled. Like Omar she sees it as "an appeal to conservative Shia in the run-up to the elections by the justice minister and by the government."
Hajer Naili is a New York-based reporter for Women's eNews. She has worked for several radio stations and publications in France and North Africa and specializes in Middle East and North Africa women in Islam.
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