The next Iraqi state: secular or religious?

Sami Zubaida
13 February 2004

The Iraq Interim Governing Council (IGC) issued a resolution on 29 December 2003 (Number 137) proposing the abolition of the existing Personal Status Law, which applied uniformly to all Iraqis, in favour of the application of religious law. This would mean authorities in each of the country’s communities – Sunni and Shi’a Muslims, (Catholic) Chaldeans, Assyrians, and (where appropriate) tribal chiefs – administering different legal provisions that applied only to “their” people, not to Iraqis as a whole.

This resolution elicited strong protests and demonstrations in Baghdad, Sulaimaniya (in the Kurdish north) and other cities, from prominent women’s organisations, and from secular and liberal Iraqis. These included the interim minister of public works, Nasreen Barwari, and other women prominent in public life. The Kurdish parliament rejected the resolution, affirming its adherence to the existing law. In the face of these strong reactions the resolution appears to have been withdrawn for the moment – although the issue will arise again as the new Iraqi constitution is drafted.

Read Sami Zubaida’s earlier openDemocracy article, “The rise and fall of civil society in Iraq” (February 2003) The issues of “personal status” are routinely used by religious authorities and political Islamists as a rallying position for both conservative and populist sentiments. Thus, the very fact that such a resolution could be proposed is a significant measure of the combination of social and ideological forces now contending for mastery in the coming Iraqi state. It would, if accepted and implemented, be a truly retrograde step, returning Iraq to the legal regime that prevailed in the first half of the 20th century.

The consequences for married Muslim women would be particularly severe. The resolution would allow polygamy; unilateral right of divorce to the husband (without reference to a court); denial of rights to divorce to the wife except under restricted and extreme conditions; obligation of the divorcing husband to offer maintenance for only three months after divorce (the ‘idda period during which the woman is not allowed to remarry, waiting to see whether she is pregnant).

Within marriage, moreover, the wife would be dependent on the husband’s permission to work outside the home or to travel. Under the laws of succession, males will continue to inherit twice the share of the females.

The respective religious laws applying to non-Muslim communities in Iraq would be equally patriarchal.

A contested history

How does the IGC’s recent proposal relate to the experience of the modern Middle East, and indeed to the earlier national experience of Iraq itself? In this article I will sketch some of the relevant correspondences, in particular from Egypt and Iran, before returning to the issue in the perspective of recent Iraqi history.

Most modern Muslim majority states, except Turkey and Tunisia, have adopted a modified version of shari’a law for personal status. Crucially, however, from the beginning of the 20th century, these laws were codified into state law (as against jurists’ and judges’ law in accordance with books of Islamic jurisprudence), and subject to state legislation.

In the 1950s, countries such as Egypt and Morocco abolished the special shari’a courts for family matters, and incorporated personal status into regular courts. Iraq, under the rule of Abd-al Karim Qasim (1958-63) took similar steps.

The present proposal, restoring the law to the religious authorities, reverses these reforms. It also reverses a century-long trend in which legislators have tried to alter the provisions of the shari’a in favour of modern conditions and sensibilities. This is illustrated by the experience of Egypt and Iran.

Egypt’s matrix

Egypt presents an interesting example of personal status law. The most important reform package was introduced by presidential decree under the rule of Anwar Sadat in 1979. It was known as the “Jihan Law”, after Sadat’s wife, known to be the instigator.

These reforms made the husband’s right to unilateral divorce subject to court ruling and registration (previously, a husband could divorce his wife without her knowledge). They also gave the first wife the right to divorce if her husband proposed a second marriage; gave a divorced wife property rights in the matrimonial home; and made custody of children subject to court decisions, rather than the fixed rule that gave the father or his family ultimate custody.

Sadat got a committee of ulama (Islamic authorities) to endorse these amendments, some of whose members reneged on their endorsement following his assassination in 1981. The amendments were also challenged in parliament, in popular campaigns and in the courts, until the Supreme Constitutional Court overturned them in 1985 – on the grounds that the presidential decree was promulgated under emergency laws and without parliamentary approval (like so many other Egyptian laws!).

A highly contested parliamentary vote restored most, though not all, of the decree’s provisions in 1986. But the struggle continues, and in 2000 there was an attempt to grant a woman the right to divorce under a shari’a provision called khul’, providing she renounces all financial and property rights.

Iran’s dynamic

An even more fascinating example of personal status law is Iran after the 1979 revolution. The earlier regime of the Shah promulgated “family protection laws” in 1967 and 1976. Under these provisions the rules of the shari’a were drastically amended along lines similar to the Jihan laws in Egypt.

Ayatollah Khomeini, after he took power, proclaimed these laws to be dead, and even threatened that individuals who had divorced and remarried under them would be prosecuted for adultery. The restoration of traditional shari’a rules led to great hardship and chaos in family affairs. Soon, there were campaigns for reform from within revolutionary political quarters, especially from high-ranking women – including Khomeini’s own daughter.

The revolution had promised to restore dignity to women and families, as against their pre-revolutionary, western-style exploitation as ‘sex objects’. How can this promise, they argued, be compatible with giving arbitrary powers to husbands to throw out their wives and children at will, as well as inflict other indignities?

This pressure was fuelled by the revolution’s unsettlement of Iranian society and its stimulus to political activism; the war economy during the long conflict with Iraq in the 1980s also brought more women into the job market and the professions.

The result was a succession of reforms. These took place partly through amending laws and procedures, but more in the form of the standard marriage contract. This allowed the wife some protection from shari’a provisions, including the right to divorce under certain conditions, and some financial protection. These were theoretically voluntary undertakings, but they became the norm in most marriages in Iran.

As conservative clerics persisted during the 1980s in obstruction of government legislation, especially on land reform and labour protection, Khomeini issued an astonishing ruling in 1988. He declared that the Islamic government is heir to the Prophet Mohammed’s prerogative, and as such is empowered to suspend all provisions of law – including prayer, fasting and pilgrimage – if the government judged this to be in the interest of the Islamic community. This gave the government complete freedom to select what it applies from the shari’a.

In practice, the Iranian mullahs and the powerful judiciary among them have become more and more arbitrary in their judgments, in accordance with a calculus of power and their intimidation of opponents. Most recently, they have excluded hundreds of candidates from the majlis (parliamentary) elections.

Iraq’s social experience

In the light of these comparative experiences, how has Iraq fared? The military-led revolution in 1958 that toppled the monarchy was a period of great turbulence, in which “progressive” forces, especially those of the Iraqi Communist Party and its allies, were prominent. Many democratic and leftist figures assumed government positions, and reform and innovation were in the air.

Sami Zubaida’s books Law and Power in the Islamic World (2003) and Islam, the People and the State - political ideas and movements in the Middle East (1993) are published by I.B. Tauris The Qasim government introduced reform of the Personal Status Law in 1959, against strong opposition from religious and conservative quarters, both Sunni and Shi’a. Personal status courts replaced the old shari’a courts, making rulings on family matters in accordance with codified state law. The reform restricted polygamy, and empowered wives to initiate divorce and make financial claims. Crucially, it also specified equal shares in inheritance for sons and daughters rather than males inheriting double the female share.

These reforms were greeted with consternation by conservatives, and with jubilation by leftists and secularists; the latter’s rhyming slogan in demonstrations was tali al-shahar maku mahar, wal-qadi nethebba bil-nahar (“by the end of the month there will be no dowries, and the qadi can be chucked into the river” – although dowry was not actually abolished).

Qasim was overthrown in 1963 in a bloody coup. Its Ba’athist authors, after their bloodbath of communists and other opponents, were soon themselves outmanoeuvred by their reactionary figurehead, Abdul-Salam Aref, who took control with a clique of army officers from the “Sunni triangle”.

A delegation of religious notables, both Sunni and Shi’a (although Aref was disdainful of the latter) lobbied the now-sympathetic new junta, who responded by restoring elements of earlier family law (notably the rules of inheritance favouring males).

A second coup in 1968 re-installed the Ba’ath party in power, with Saddam Hussein in the wings, soon to emerge as its strongman and ultimate dictator. The new regime, professing socialist credentials and the desire to subordinate traditional formations of patriarchy, tribe and religion under Ba’ath authority, was generally progressive on social issues and women’s rights.

A series of amendments to the 1959 laws of personal status began in 1978 and developed through the 1980s. These extended and clarified the 1959 laws in a generally liberal direction with regard to women’s rights in family and society (but excepting the 1963 inheritance law amendments favouring males). During this period more opportunities were opened to women in public life, education and the professions.

The attitude of the regime to family and women changed in the 1990s, after the 1991 Gulf war and subsequent sanctions. During this period and until his demise, Saddam turned to religion and tribe to legitimise and reinforce his power base and as instruments of social control. The increasing control of these patriarchal authorities was detrimental to women. “Honour killing”, for instance, was sanctioned, and perpetrators escaped with light punishment, if any. Tribal jurisdiction, which had prevailed in the first half of the 20th century under the monarchy, was reintroduced, and civil and personal matters entrusted to tribal chiefs and tribunals.

The honour of democracy

Here the story comes full circle. The raison d’etre of the war in Iraq was the establishment of democracy, human rights and the rule of law. The IGC was established ostensibly as a step in that direction. It is odd then that its first legislative act on the family should be to abolish secular law and establish backward religious authority – and an arbitrary one for that matter, only bound by the mullahs’ and shaikhs’ interpretations of the shari’a.

But this step is only a function of the nature of “representation” on the IGC, with religious figures supposedly representing their “communities”. To some extent such a choice of representatives was inevitable, given the destruction and dissolution of all political and civil bodies under the Ba’ath. Religious, tribal and ethnic formations survived, or were deliberately reconstructed and reinforced by the regime as means of control.

Elections will not solve this problem at present: the same formations are best placed to mobilise votes and intimidate dissidents, while political parties and civil associations have not had the chance to build up constituencies. This is all the more reason for the Coalition Provisional Authority to work towards constitutional checks to stop these theocratic tendencies.

What, in any case, does it mean to “apply the shari’a”? We have seen how doubtful it is in the case of the Islamic Republic of Iran. In relation to public law and functions, the shari’a’s indeterminacy makes it a means of arbitrary rule. Its only clear hallmarks (though even these are much disputed) are in the spheres of family and women and of aspects of public morality. These become the fields of display of religious authority.

The results are clear. Covering up women and segregating the sexes, prohibiting alcohol (which just makes it expensive), censorship of cultural and literary products and the media, and, in the worst case, so-called Islamic corporal punishments of amputation and beheading, as in Saudi Arabia and Taliban-ruled Afghanistan (less common in Iran). In Iran, compulsory veiling of women in public has become the ultimate symbol of the mullahs’ power, and its abolition, if it comes, will signal their defeat.

There are many indications that some religious forces in Iraq, Sunni and Shi’a alike, are attempting to impose just such signs of their authority. Muqtada al-Sadr’s militias, for instance, have been intimidating women in areas under their control into wearing the veil. They employ violence against shops and bars selling alcohol, and have attacked and destroyed one brewery in Baghdad. Cinemas and theatres have also come under pressure.

If Iraq is to stand any chance of democracy and the rule of law – which already seems remote under present conditions – then these forces must be resisted.

openDemocracy has published analyses, interviews, reportage and personal reflection about Iraq before, during and after the 2003 war. Among the highlights:

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