Proposed amendments to Iraqi law undermines women’s dignity, says human rights expert

ACI MENA, Nov 29, 2024 / 06:00 am

Recent attempts to amend Iraq's Personal Status Law — a civil set of laws regarding family life — have sparked significant controversy.

The proposed amendments pertain to issues such as the minimum marriage age for females, registering marriages in courts, divorce rights, and child custody and would have “no positive outcomes,” according to Dr. Muna Yaqo, Chairperson of the Independent Human Rights Commission in the Kurdistan Region.

“The amendment deprives women of their rights, such as pension,” Yaqo told ACI MENA, CNA’s Arabic-language news partner. “For instance, any wife whose husband does not derive physical pleasure from her, whether due to illness or old age, is denied a pension. This is a grave human rights injustice.”

It is not the first time attempts have been made to amend the Personal Status Law. The earliest attempts date back to 2003 when Abdul Aziz Alhakim, who had assumed the rotating presidency of the Transitional Governing Council, issued a decree repealing the law and reverting to Sharia law. However, this decision was later rescinded.

Yaqo, an expert in international law and minority issues, clarified that the proposed amendment does not directly concern Christians, noting that “the first article specifies its scope of application for Muslims, granting Iraqis the right to choose between Sunni and Shia doctrines when contracting marriage.” However, she pointed out, “As an Iraqi, it is disheartening to discuss a law that permits child marriages in 2024.”

A call for a unified Christian Personal Status Law

As a Christian, Yaqo sees an opportunity in the proposed amendment. 

“If passed, it would strengthen the case for presenting a draft Personal Status Law specific to Christians.” She urged Iraq’s churches to reach a consensus on issues like marriage, divorce, and inheritance to prepare a unified draft law.

Nevertheless, Yaqo expressed grave concern over the mere attempt to amend the law. 

“Iraq has been a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child for decades. Enacting a law that contravenes these treaties would create a glaring contradiction in Iraq’s official stance. Should the Parliament insist on passing the amendment, Iraq will face embarrassment as a country failing to honor its international commitments,” Yago said, adding: “By signing the Convention on the Rights of the Child, Iraq committed to prioritizing children’s welfare, focusing on education and health — not marrying off minors.”

A step backwards for women’s rights

Yaqo called the proposed amendment a regression for women’s rights, undermining the dignity safeguarded by Iraq's Personal Status Law No. 188 of 1959. “This is a significant setback,” she said. “Instead of progressing, we are regressing. Legally, marriage is a consensual contract between two competent adults. How can a 9-year-old girl be deemed capable of entering such a contract?”

She further referenced jurisprudential sources. “The Ja’fari school not only permits marriage for 9-year-old girls, but also allows infant betrothals and certain sexual practices with minors, such as fondling,” she said.

Constitutional challenges and contradictions

Yaqo highlighted the complex political circumstances under which Iraq’s constitution was drafted. 

“Unfortunately, compromises resulted in Article 41 of the Iraqi Constitution, which states: ‘Iraqis are free to adhere to their personal status laws according to their religions, sects, beliefs, or choices, to be regulated by law.’”

She also noted that Article 2 of the Constitution requires laws to align with the immutable principles of Islam. However, since there is no consensus between Sunni and Shia sects on issues like marriage and divorce, the Federal Supreme Court’s Decision No. 147 of 2023 — which defines Islamic principles as those unanimously agreed upon across all sects — renders reliance on Article 2 inapplicable.

Yaqo argued that the recent amendment proposal was cleverly crafted by focusing on only two articles. However, modifying these would effectively dismantle the entire Personal Status Law, replacing it with sect-based jurisprudence.

Iraq’s Personal Status Law is considered one of the region’s most progressive. Yaqo commended the Federal Supreme Court’s acknowledgment that Article 41 requires amending, stating, “This means it cannot serve as a basis for amending the Personal Status Law, as no law can be issued without a constitutional foundation.”

A unified civil law: Patriarch Sako’s vision

Chaldean Patriarch Louis Raphael Sako has also addressed the proposed amendments. In a prior interview with an Iraqi TV channel, he reiterated his call for a unified civil law applicable to all citizens, regardless of religion — similar to the practices of advanced nations. 

“Today’s reality differs from decades ago,” he said. “Women now hold leadership roles and occupy high positions in society.”

He drew attention to Biblical teachings affirming equality and complementarity between men and women, adding, “In Christianity, inheritance laws are equal for men and women. We do not consider women deficient in reason or faith.” 

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He also stressed that Iraqi churches do not permit marriage under the age of 18.

Regarding divorce, the Patriarch explained that in Christianity, marriage is not a contract but an eternal covenant. Exceptions apply only when a marriage is deemed null due to “improper foundations.”

This article was originally published by ACI MENA, CNA's Arabic news partner, and has been translated and adapted by CNA.