• News

Religion, Law, And Iraq’s Personal Status Code

34Shares
17KViews

Personal Status issues - those dealing with matters under the umbrella of family law, including marriage, divorce, child custody, adoption, and inheritance - have been the focus of some of the most contentious debates over the role of Islamic law in post-Saddam Iraq.

While strict Shari’a guidelines may fall to the wayside in other realms of litigation, in the areas of family law and personal status - those which most directly affect Iraqi citizens - religious authorities have made clear their intent to uphold, to the best of their ability, the principles of Shari'a.

Iraqi Personal Status Code, Law 188, Article 1 screenshot
Iraqi Personal Status Code, Law 188, Article 1 screenshot

At the center of controversy has been the Iraqi Personal Status Code, Law 188, which dictates the way in which family law issues are dealt with. Instituted in 1959 by Iraq’s left-leaning revolutionary government at the time, the code was a unified, codified national law that treated all Iraqi citizens as equal regardless of their sectarian affiliations.

The law replaced the former system of differential treatment of Shi'ite and Sunni Muslims and other religious minorities under separate Personal Status courts whose judges decided cases based on their own religious training (Al-Ali, & Pratt). These courts became a branch of Iraq’s regular court system, and it was the judges’ role to implement the codified law rather than interpret Islamic law on their own.

COPYRIGHT_IO: Published on https://www.islamopediaonline.org/religion-law-and-iraqs-personal-status-code/ by Aaliyah Azeena on 2022-10-13T12:33:06.719Z

The law stipulated that judges could refer to Shari'a principles only when the codified text failed to offer a provision for a certain situation (Brown, 2005). The code is based on French civil law as well as Sunni and Jafari (Shi'ite) interpretations of Shari’a, forming what some consider a successful model of a civil code compatible with Western law that is rooted in Shari'a (Stigall, 2006).

The code, though, is based on many central rulings of Shari'a disadvantageous to women: polygamy, for instance, is allowed as long as it is approved by a judge; men have greater power to initiate divorce, and can divorce their wives simply by pronouncing "three repudiations"; all divorces, for that matter, must be filed with a Shari’a court; inheritance laws lean in favor of men, awarding female heirs half of what their male counterparts would are entitled to by law(American Bar Association, Iraq Legal Development Project, 2007).

Since the code's stipulations must fall within the "legitimate interpretations of Islam, there are technically no civil marriages" (Brown, 2005). However, since all Muslim marriages, including inter-sectarian ones between Sunnis and Shi'ites, fall under its unified Islamic jurisdiction, one could argue that the law does allow for civil marriages via such non-traditional unions.

Intermarriages between Sunnis and Shi’ites are in fact frequent, comprising one-third of all Iraqi marriages prior to 2003. These rates have dropped significantly, though, as violence has increased. Mixed couples risk violent attacks, forced separation or both at the hands of Islamic militias.

A surprising government-sponsored program in 2009 initiated by Iraqi Vice-president Tariq al-Hashemi offered monetary incentives to couples who intermarried (Fadaam & Madhani, 2009). The program’s stated aim was to ease sectarian tensions, and though it raised eyebrows, the program flourished despite potential consequences for personal safety.

Inter-religious marriages, however, are less common. Marriages between Muslim men and Christian women are permitted and treated like other Muslim unions. Muslim women, however, are forbidden from marrying outside their faith.

Non-Muslim couples, other the other hand, are dealt with by a multi-code system where marriage issues are covered by secular elements of the Personal Status Code and respective religious authorities (UNHRC, 2005).

So while the Iraq’s codified personal law is not secular in nature, it weakens the power of religious establishments by removing their ability to interpret law independently of the state, or to oversee their own personal status courts (Brown, 2005).

The law, which had been in place under Saddam Hussein, was thus viewed by many as an extension of his discriminatory policies against religious Shi’ites, and like so many policies under his regime, as sacrificing "sectarian principles on the altar of national unity" (Stigall, 2006).

Screenshot of Resolution 137
Screenshot of Resolution 137

Not surprisingly, attempts to overturn it came shortly after Saddam was removed from power in 2003. Abdul Aziz al-Hakim, then leader of the Supreme Council for Islamic Revolution in Iraq (SCIRI), proposed Resolution 137 the same year, reinstating a system in which legal cases relating to family law would be handled in either Sunni or Shi’ite Shari’a courts and presided by Islamic jurists rather than state judges.

The resolution would in essence overturn Iraq’s Personal Status Code and enable religious leaders to rule in family law cases (American Bar Association, IRLDP, 2007).

Opposition to it brought together women’s groups in and outside of Iraq and gave momentum to what would become a growing Iraqi women’s rights movement. Their outspoken resistance, along with that of secularists, Kurds, and especially, hundreds of unaffiliated individuals who protested publicly against what they the saw as the erosion of Iraqi civil rights, resulted in the ultimate repeal of Resolution 137 (Usher, 2004).

Though the campaign was a success, it had represented a Catch 22 for women: the code they were defending, though relatively progressive compared to other countries in the Middle East, still allowed for blatant mistreatment of women under the legal system at large. Iraqi criminal code, for example, imposes punishment for any sexual relations outside marriage (Edward, 2009).

These include fines and detention, but can be decreased or removed if unmarried participants end up marrying. According to the Organization for Women’s Freedom in Iraq, the law has led to female victims of rape marrying their male predators in order to escape a prison sentence (Mohammad, 2011).

Thus, women were left essentially where they had begun before the battle against Resolution 137, with a 1959 Personal Status Code based in Shari’a law, which still blatantly discriminated against them in many instances.

Share: Twitter | Facebook | Linkedin

About The Authors

Aaliyah Azeena

Aaliyah Azeena - Aaliyah Azeena is using her own voice to speak up for ourselves, the Musilm and kickstart an open honest dialogue about Islam in today’s society. She is raising the place of Muslim women in mainstream society, drawing awareness to the Qur’an’s message of gender equality and Islam’s principle of peace. Aaliyah is paving the way toward a world in which every woman can raise her head without fear of being attacked for her gender or beliefs. She is pioneering our own paths as Muslim women living in today’s modern society, and this is our story.

Recent Articles

  • Religion Law And Iraq - The Way It Affects The Global Society

    News

    Religion Law And Iraq - The Way It Affects The Global Society

    What comes to your mind when you hear religion law and Iraq? Some people might not have enough ideas about how these are all connected and significant to the world. Balancing justice with long-term peace and security in a post-conflict context is extremely difficult. The challenges in Iraq's post-IS (Islamic State) landscape are discussed in this article.

  • Fatwa - An Interesting Islamic Ruling

    News

    Fatwa - An Interesting Islamic Ruling

    When news broke on August 12, 2022, that the writer Salman Rushdie had been attacked, many people immediately remembered the fatwa, or edict, issued in 1989 by Iran's Supreme Leader at the time, Grand Ayatollah Ruhollah Khomeini, calling on all Muslims to kill him. Rushdie's 1988 novel, "The Satanic Verses," was accused by Khomeini of insulting Islam and blaspheming the Prophet Muhammad. Riots and credible death threats drove Rushdie into exile, where he spent the next nine years under British police protection. He did not resurface until 1998, after Iran promised not to enforce the fatwa but did not rescind it.

  • Dr. Ali Goma - Egyptian Islamic Scholar, Jurist, And Public Figure

    News

    Dr. Ali Goma - Egyptian Islamic Scholar, Jurist, And Public Figure

    Dr. Ali Gomaa is the Grand Mufti of Egypt. He was born on March 3rd, 1952 in Bani Suwaif. He studies at the Faculty of Commerce, and then after graduating, he completed another bachelor’s degree from Al-Azhar in 1979, followed by two masters and a PhD degree in 1988. Before becoming the Grand Mufti, he was Professor of Juristic Methodologies at Al-Azhar University.

  • Pakistan Transnational Influences And Militancy - The Effects To The Society

    News

    Pakistan Transnational Influences And Militancy - The Effects To The Society

    Pakistan transnational influences and militancy, have huge effects in the society. The growing influence of the terrorist group known as the Islamic State (IS) is a worrisome. Terrorist organizations like Al-Qaeda and the Islamic State frequently rely on local militant groups to establish new affiliates or branches around the world. While previous research has primarily focused on the motivations of groups to align, as well as the effects of alliances on the lethality.

  • Sayyad Muhammad Hussein Fadlallah Lebanon Responds To Question If It's Permissible To Take Loans If You're Non Islam - The Shariah View

    News

    Sayyad Muhammad Hussein Fadlallah Lebanon Responds To Question If It's Permissible To Take Loans If You're Non Islam - The Shariah View

    He is known as Grand Ayatollah Mohammad Hussain Fadlallah. He was born in Lebanon on November 16, 1935 and died on July 4, 2010. He was a renowned Shia cleric. Following his education in Islam in his hometown of Najaf, Iraq, Fadlallah emigrated to Lebanon in 1952. In the years that followed, he started the Mabarrat Association, spoke a lot, did a lot of research, wrote many books, and set up a lot of Islamic religious institutions.

  • Abdu Zubayr - His Biography, Conversion, And Legacy

    News

    Abdu Zubayr - His Biography, Conversion, And Legacy

    In the service of the caliphs Abu Bakr (r. 632-634) and Umar (r. 634-644), Abdu Zubayr ibn al-Awwam was an Arab Muslim commander who took part in the early Muslim conquests of Sasanian Iraq (r. 633-634), Byzantine Syria (r. 634-638), and the African Exarchate (r. 639–643). Through Qusai ibn Kilab, a Quraish chieftain in Mecca who was in his fourth generation, he also shared lineage with Muhammad.

  • Hosseini Nassab Seyed Reza - A Co-founder Of Various Islamic Institutions

    News

    Hosseini Nassab Seyed Reza - A Co-founder Of Various Islamic Institutions

    Grand Ayatollah Seyed Reza Hosseini Nassab (b. 1960) studied at taught at Qom Seminary from 1976 to 1991. In 1991, upon accomplishment of three thesis in Islamic Jurisprudence, Astronomy and acknowledgment of Shi'a faith, he received Professorship Certificate a doctorate degree from the Qom Seminary. He has co-founded a number of Islamic institutions in various major cities in Canada, Germany, and Switzerland, and currently resides in Toronto, Canada.

  • Al-Nour Party Calls On Copts Join

    News

    Al-Nour Party Calls On Copts Join

    Emad Eddine Abdel-Ghaffour, acting President of Al-Nour Party, called on Christians to join the party, stressing that the party is for all Egyptians and is not restricted to any one group. He also said that the party has created a committee to establish contacts with Copts and Nubians, as well as professionals such as college professors and experts in different fields.

  • Youm7 - Daily Egyptian Newspaper

    News

    Youm7 - Daily Egyptian Newspaper

    Youm7 is a daily, electronic newspaper based in Cairo, Egypt. Formed in October 2008, Youm7 was initially a weekly paper; it became daily on May 31, 2011. Youm7 also launched its English-language website in May 2011, "with the goal of providing quality coverage of Egyptian news in English."

  • Muhammad Sayyid Tantawi - The Grand Imam Of Al-Azhar Mosque

  • Atiyyah Saqr - Writer And Consultant For The Egyptian Ministry Of Awqaf

  • Mohamed Abdel Salam Faraj - Co-Founder Of The Egyptian Islamic Jihad

  • Khairat El-Shater - Deputy Of The Supreme Guide

  • Hilaludd - President Of China Islamic Association Since 2001