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Iraqi thinker says personal status law debate ‘misleads’ public on sharia vs. secular law

2024-08-26 | 14:17

BAGHDAD— Iraqi thinker Haider Saeed has raised concerns about the ongoing debate surrounding Iraq’s Personal Status Law amendments. In a detailed argument, Saeed claims there has been a historical oversight and misinformation about the development of civil legislation in Iraq, dating back to the monarchy in the 1940s and through the era of Abdul Karim Qasim.

He emphasizes that both the 1945 (monarchical) and 1959 (republican) versions of the law did not intend to abolish Islamic jurisprudence but rather sought to “select the best religious rulings” and ensure protections for women, who have historically been marginalized and in need of state protection.

Below are excerpts from his interview with Sharqiya TV:

I believe that the repeated revisiting of the Personal Status Law since 2003 (by Abdul Aziz al-Hakim), followed by the draft Ja’fari Personal Status Law (by the Al-Fadhela Party), and now the current amendment draft, has been accompanied by a massive campaign of ignorance.

The posts I publish on ‘X’ are part of research I have been working on for years regarding the history of the Personal Status Law, its historical development, and the religious institution’s stance on it.

Many of those discussing the matter, whether on social media or even writers of articles or prominent figures in the religious, political, legislative, or media fields, circulate information as if they have not read anything about the story of the Personal Status Law.

The Personal Status Law was written by a committee formed by the Ministry of Justice (in 1959) of specialized judges, contrary to the popular belief that the law was written by a group of leftist activists. This is not true.

The Personal Status Law enacted in 1959 had precedents. In 1945, the Judicial Committee in the Iraqi Parliament (Monarchical Era) prepared a draft and recommended the Parliament to enact it. However, due to objections from the religious institution, particularly from Sayyid Mohsen al-Hakim at that time, it was not enacted. Even that draft was written by a committee of judges, meaning we are talking about a technical and professional committee. This is documented and known.

I wish those who discuss the law would refer to the book ‘Personal Status’ by Mohammad Shafiq al-Ani, which tells the whole story.

Does the 1959 law conflict with Islamic Sharia? This was never an issue. Even the 1945 draft did not propose replacing Islamic Sharia. The Personal Status Courts, or Religious Courts as they were called in the Monarchical Era, were said to want to replace Sharia with a materialistic secular law borrowed from European laws, specifically French law, but this was never proposed.

The vision that governed the writing of the 1945 draft [monarchical] and the 1959 law [republican] was to choose the best rulings from Islamic Sharia.

I believe the story was distorted by the inclusion of the inheritance article, meaning the article of equal inheritance between males and females. The committee that wrote the law states that this article was not in the original draft submitted to the Council of Ministers in 1959, but was added in the Council of Ministers.

The Shiite religious institution was provoked by the state entering as a regulator of family matters. The essence of the issue is that the state had to reach this law. The 1925 Constitution (Monarchical) approved religious courts. But the growing state trend in Iraq’s development since the establishment of the modern state in 1921 had to reach this moment, the moment of building a Personal Status Law, with the state being responsible for it. I believe this is the essence of the story.

The current amendment, as it seems, means that we are heading towards a different state structure. Therefore, when we defend the 1959 law, this is not a story of a struggle between Sharia and secular law. Those who think so are deluded.

The Iraqi public is being misled. When the issue is presented as if it is a struggle between Sharia and secular law?”

How do we ask a 9-year-old girl or a 15-year-old girl [that you are free to choose either civil law or their sect for marriage contracts]? The status of women in Iraq is already marginalized. Even when she is 30 years old, she has no freedom of choice. We are facing a massive patriarchal legacy.

Human civilization is originally patriarchal. Therefore, when we defend the state’s role, we defend the state as a party that is supposed to protect women and correct the situation.

Women are marginalized as long as their financial status is linked to their father or brother; they are not decision-makers, even if they are adults. So, what about a 9- or 12-year-old girl? Will she choose? The law already classifies her as a minor.

The story is not understood by many of those who discuss the law. Therefore, when we say it is a patriarchal law and a law that deprives women of their rights, no one understands the story.