The Jaafari Personal Status Law or Legalizing marital rape
In the International Law framework, the Jaafari Personal Status Law represents an outrageous violation of human rights, most precisely of women and children rights by fulfilling a longtime goal of the country’s conservative Shia leaders: exerting religious control over critical family matters. Consequently, letting aside the fact that Iraq is a United Nations member, it managed to breach the most important provisions in the Universal Declaration of Human Rights related to equality and freedom.
What is the Jaafari Personal Status Law?
The Jaafari Personal Status Law is a draft law covering Iraq’s Shia citizens and residents and considered as a huge step backwards for women/ girls. The Justice Minister Hassan al-Shimmari, a Shiite, introduced the draft law to the Council of Ministers on October 27, 2013. After the announcement made by the council in December mentioning that the draft would be postponed until after legislative elections scheduled for April 30, 2014, the supreme Shia religious authority approved it. Shia advocates of the law, oppressed by a Baathist Sunni minority, support the idea that the bill would expand their freedom in practicing their faith. Despite strong opposition from rights advocates and some religious leaders on February 25, the draft was approved. On this occasion, the Iraqi government has reached its limit in violating women’s and children’s rights.
The personal status law in force was made by collecting and formulating sharia rulings according to the Jaafari School of Shia Jurisprudence into legal rules using modern principles of civil law to be applied to all, in order to protect their particular religious nature in a variety of matters. The draft deals with issues of marriage, divorce, inheritance and adoption.
The current law, No 188, was issued in 1959 and is considered to be the most protective of women’s rights in the Arab countries. It stipulates that the legal age of marriage for both men and women is 18; polygamy is prohibited and taking a second wife is extremely restricted; a Muslim male is allowed to marry a non-Muslim female without conditions or restrictions; and a woman can disobey her husband if he behaves tyrannically and harms her by failing to provide adequate housing or care should she fall ill.
In opposition, according to the new bill, the article 16 sets the legal age of marriage for females as 9 and males as 15, although it could be even lower with the consent of a guardian, father or a grandfather. Article 63 prevents Muslim males from permanently marrying non-Muslim females, which means a Shi’ite Muslim male is allowed to marry non-Muslim females temporarily in what is called mut’a marriage. Article 101 says men have the right to “enjoy” sex with their wives any time they want, and wives cannot leave their marital home without their husband’s permission. Article 104 permits unconditional polygamy. Article 126 says husbands are not required to pay financial support when their wife is either a minor or a senior and hence unable to sexually satisfy them. Regarding the custody over a child in a divorce case, the law would automatically grant custody over any child age two or older to the father in divorce cases.
Breaching international agreements provisions…
The previous highlighted articles, not to mention others, are in breach of Iraqi laws (which prohibits “discrimination and distinction between Iraqis” and guarantees the equality of all Iraqis “without distinction to religion, faith, nationality, sex, opinion, economic or social status.”), international agreements and UN conventions, which Iraq ratified on human rights, in particular those relating to women and children.
- The draft law ignores article 2 of the UN’s Declaration on the Elimination of Violence against Women by legalizing marital rape and the article 16 of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages as well (Article 16: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.).
- The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) urged in its 28 February review of Iraq that the government “immediately withdraw the draft law” violating the human rights on gender basis.
- It also violates the Convention on Rights of the Child, which Iraq ratified in 1994, by legalizing child marriage, putting girls at risk of forced and early marriage and susceptible to sexual abuse, and not requiring decisions about children in divorce cases to be made in the best interests of the child.
- The law also appears to violate the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights by granting fewer rights to certain individuals on the basis of their religion.
The pending legislation threatens to further divide Iraqi society on the basis of sectarianism and ethnicity and violate women’s and children’s rights, including potentially making the latter susceptible to sexual abuse through child marriage, restrict women’s rights in matters of inheritance and parental and other rights after divorce, and making it easier for men to take multiple wives. To put it bluntly, sharia is is no way compatible with human rights protection within a democracy.
As a consequence of the new sharia-based legislation a brave handful of women demonstrated in Baghdad. About two dozen Iraqi women from the Iraqi Women’s Network, an association of women’s rights group, held protests on March 8, International Women’s Day, calling it a day of mourning in Iraq. They demonstrated in Baghdad against the draft law approved by the Iraqi cabinet. “That law represents a crime against humanity and childhood,” prominent Iraqi human rights activist Hana Adwar declared.
In its review, the CEDAW committee had also recommended that Iraq repeal discriminatory legal exceptions to the minimum age of marriage for girls in the existing Personal Status Law. It said that legal exceptions to the minimum age of marriage should be granted only in exceptional cases and authorized by a competent court for both girls and boys, and only in cases in which they are at least 16 years old and give their express consent. It recommended that Iraq take the necessary legislative measures to prohibit polygamy, which is permitted in the current law under certain circumstances.
Understanding that old tribes married their daughters when they were still children doesn’t mean that such behavior should be legalized. That women 1.000 years ago were considered subordinate to men, could not leave home without their permission and could be divorced and replaced at any time doesn’t mean that the same thing should be acceptable today. However, it is absolutely clear that this law, if enacted would undoubtedly damage what Iraqi women have been struggling to get rid of for more than a century. It is a degrading step for both Iraqi men and women.