“Freedom” to Choose Shari’a Courts


Article 41 of the Iraqi Constitution

However, the battle was a critical one that would not be surrendered easily. It represented the role Islam would play not only in family law, but in Iraq’s social fabric as a whole. It was quickly taken up again by those who saw a unified code of law as a foreign, imported doctrine associated both with the West and the oppressive Saddam-regime. Renewed efforts to obstruct the 1959 Personal Code found their place in the inclusion of Article 41 in the final draft of the Constitution. The article stated that Iraqis “are free in their commitments to personal status…according to their sects (American Bar Association, IRLDP, 2007). Such “freedom” implied that Iraqis would no longer be “limited” to a single set of laws dealing with personal matters, but would be able to choose from various sectarian legal systems, presumably (though not necessarily) based on their ethnic affiliation. The article, which appears in the “Rights and Freedoms” section of the 2005 Constitution, raised the essential question of how religious freedom was defined by Iraq’s citizens (Al-Zubaidi, 2011). Did religious freedom mean the right to personal status courts within one’s religious community? Or did it mean the right to a legal code that treated all Iraqi citizens as a unified group, equal under the law? 

Those who support Article 41 feel that a single-code system forces Muslims of different sects to adhere to one code of law with which they may not necessarily agree. Some maintain that implementation of the article formalizes a sectarian system already in place, preventing unnecessary interference by the state in civil affairs (Susman, 2007; Mosawi, 2007). Proponents are not limited to religious leaders and include both men and women. Prominent legislators who support the article include Iraqi Humam Hamoudi, Chairman of the Constitutional Drafting Committee and member of the Shi’ite Islamist Iraqi National Alliance, and female legislator Samira al-Musawi, former head of the parliamentary Committee on Women, Family and Childhood.

Critics, for their part, have also not been limited to a particular group. Members of parliament and the judiciary, as well as civil society activists and legal professionals have expressed concern about the provision (Brown, 2005), maintaining that its implementation will erode women’s rights by placing important legal matters in the hands of religious clerics, exacerbate sectarian tensions, undermine Iraq’s unity, and weaken the nation’s legal system (Stigall, 2006; Al-Zubaidi, 2011). They also raise the question of how inter-ethnic marriages, which account for approximately one-third of all Iraqi marriages, would be dealt with under separate court systems.

The argument continues. In October 2013, Minister of Justice Hassan al-Shammari submitted a draft law to the Council of Ministers which would provide for establishment of a specifically Jaafari Shi’i shari’a court for processing of a distinctly Jaafari personal status code, based on article 41.  The Council of Ministers approved that draft, sending it on to Parliament.  The controversy surrounding the proposed law mirrors that around article 41 itself.  Very few Iraqi figures articulated support for it, with even members of the Shi’i National Front in Parliament saying that its timing was not right as elections approached.  Ayatollah Hussein al-Sadr voiced his opposition to the law, saying that the state should instead promulgate general civil codes in compliance with both international and Islamic law, as this would lessen sectarian competition.  Sunni leader Sheikh Abdul Malik al-Saadi also denounced it, calling the law an “abuse” of the “patriotic noble Arab Shi’is” which would only deepen sectarian tensions.

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