Eurasia Press & News
Efforts to amend the 1959 Personal Status Law are another attempt to create a parallel authority to that of the state.
Controversial efforts in Iraq today to change the country’s personal status law and give more power to the religious sects reflects the growing institutionalization of sectarianism as the basis upon which Iraqi society is being recast. This represents a further erosion in the authority of the state, with potentially serious consequences that will increase Iraq’s fragmentation.
During the 1990s, the then Iraqi leader Saddam Hussein led what was referred to as the “Faith Campaign.” He built numerous mosques and modified his political rhetoric so it was more religious, capitalizing on the rising tide of religiosity in Iraq and the region. However, these efforts remained limited to the state’s attempt to control and instrumentalize religion in the public sphere, while the regime continued its struggle against Islamic movements that it perceived as a threat. However, Islamist groups, both Sunni and Shia, gained power following the Baath regime’s downfall in 2003, and significantly reshaped social life to reflect their worldview.
Many of these groups, particularly Shia groups, participated in elections, contributed to drafting a constitution, and most notably, succeeded in dominating the political process. Throughout the early post-2003 years, they were primarily occupied with consolidating their power and contending with Sunni militant groups, among them later on the so-called Islamic State. They did not prioritize legal Islamization. Instead, they settled for a vague constitutional provision stating that “Islam is the official state religion and a main source of legislation,” and that laws must not “contradict the fundamental tenets of Islam” or “principles of democracy.”
In more recent years, however, Islamist groups have sought to revive projects aimed at “Islamizing the laws,” alongside efforts to assert their worldview within society. The success of the Coordination Framework—an umbrella for a number of Shia Islamist factions—in forming the new government, dominating parliament, and strengthening its influence over independent bodies such as the Media and Communications Commission, as well as the judiciary, has played a crucial role in this shift. The Coordination Framework managed to overcome the setbacks that followed the 2019 protests and, to a large extent, has dismantled opposition groups through a combination of coercion and cooption.
This turn of events may seem natural given that Iraq has historically experienced intense identity conflicts. Most forces that have dominated political power have sought to reshape the country’s identity and public space to reflect their ideology, vision, and symbols. They have also aimed to establish clear boundaries between what is permissible and what is prohibited—boundaries that do not necessarily reflect the principle of equality before the law.
For example, the Shia factions legislated a new public holiday, the Day of Ghadir, despite the deep and longstanding Sunni-Shia differences over the significance of this day and its relationship with the question of the Islamic Caliphate. The Coordination Framework-controlled government also acted more aggressively against nongovernmental organizations affiliated with Western countries, closing the offices of some and lifting the legal cover for others. This was accompanied by an aggressive campaign launched by Coordination Framework-affiliated groups and activists against what they perceived to be Western attempts to alter Iraq’s Islamic culture and “promote moral decay.” The campaign resulted in the prohibition of the term “gender” in official discourse and school curriculums and passage of a law criminalizing homosexuality.
The Media and Communications Commission has also restricted the airing of certain programs and television series and banned specific media commentators due to objections from the Coordination Framework or Shia clerics. But it has not applied similar restrictions on a parliamentarian who made derogatory remarks about Sunni religious symbols. After defeating the Islamic State, Shia factions could have settled on an approach to governance that contrasted with the Islamic State’s violent, extreme, and exclusionary approach. Yet a combination of triumphalism and intra-Shia rivalries, especially between the Coordination Framework and the Sadrist movement, led to populist, sect-oriented, and largely sensationalist politics. Culture wars through social media and other platforms have become an effective tool for the country’s factions to make tawdry political gains and avoid confronting more critical challenges pertaining to the economy, corruption, unemployment, and other pressing socioeconomic issues.
This effort recently culminated in attempts to make legal amendments to the 1959 Personal Status Law, which was enacted under the government of president Abdul-Karim Qassem. The law was the outcome of a lengthy process that began during the monarchy to draft a comprehensive family code applicable to all Iraqis. It relied on more progressive interpretations of Islamic jurisprudence that could align with modern standards of human and women’s rights.
The new amendments aim to end the state’s monopoly over regulating family, inheritance, and personal-status issues by allowing individuals to return to the jurisprudence governing their own sects in such matters. It also permits the religious authorities to handle marriage and divorce contracts and determine child custody rights according to what is common in their sect’s jurisprudence, with no right of objection from the state courts. Shia groups assert that this law complies with Article 41 of the constitution, which states that “Iraqis are free to regulate their personal status according to their religions, sects, beliefs, or choices.” However, this assertion seems insufficiently substantiated. First, the current law already provides individuals with relative freedom to choose the religious jurisprudence they follow in matters of marriage, divorce, and other issues. Second, the proposed law conflicts with certain constitutional provisions, such as Article 14, which states that “Iraqis are equal before the law without discrimination based on gender, race, nationality, origin, color, religion, sect, belief, opinion, economic or social status,” as well as other provisions related to women’s and children’s rights.
The Shia clerical establishment’s objection to the 1959 law is not new. In fact, it was one of the main reasons for the clergy’s opposition to the Qassem government. This disapproval was not solely based on religious grounds but also stemmed from the fact that the regulation of family and personal status matters had historically been a key responsibility of Shia jurists, who exercised it independently of the state. The transfer of this authority to state courts diminished the religious hierarchy’s influence and, crucially, its revenues. Furthermore, since the law was based on several legal schools, including the Jaafari school of Shia jurisprudence, Shia jurists were inclined to reject it because they view the legal code as an indivisible whole.
The current attempt to amend the 1959 law has faced significant opposition from civil society organizations and activists. In many areas, religious jurisprudence conflicts with the internationally recognized rights of women and children, including the prohibition of child marriage (when many jurists permit marriage for girls as young as nine years old) and issues related to women’s custody rights and their right to inherit or object to their husband’s remarriage. At the same time, the Coordination Framework appears to be receiving strong support from the religious establishment in its endeavors, accompanied by silence—likely interpreted as acquiescence—from the highest religious authority, Ayatollah Ali al-Sistani. Some have even described the Qassem-era law as “secular,” arguing that marriage, divorce, and inheritance under its provisions constitute a departure from religious principles.
The objective here appears to be to entrench an order organized around sectarian and ethnic belonging in Iraq, reducing citizens to fixed, inherited identities. The sects are thus becoming intermediaries between individuals and the state, affecting everything from citizen’s political representation to rights related to marriage, custody, and family matters. Success in amending the 1959 law, according to the proposed formula, would represent another step toward institutionalizing the sectarian division of Iraq, which would establish a parallel authority to that of the state in a wide range of personal matters. This is somewhat akin to what has occurred with the Popular Mobilization Forces, which represent a parallel power when it comes to security.
