Navigating Rights and Religion: Ensuring Gender Equality and Justice in Iraq's Personal Status Law Amendments

The "decisive hour" has come to amend personal status. Who will prevail, "religious or civil"?

For some time now, all Iraqi circles have witnessed an escalation in discussions and the presentation of religious and civil opinions and ideas alike, regarding the amendment of Law 188 of 1959 on Iraqi personal status, which has shown beyond doubt the division of the country into two lines with no third, "religious and civil".

The supporters of the amendment believe that the current law has "restricted their freedom" or rather has restricted "men" from exercising their guardianship, which Islamic law has established over women, despite the jurisprudential differences regarding its meaning.

As for the objectors, they see the opposite, and that he has "chained the woman" with the chains of the man and his doctrine "against her will", also depriving her of her freedom of choice, especially in the matter of "age" or agreeing to have a partner in her husband and thus her life and the lives of their children.

I reviewed the text of the amendment, and it became clear that there are only two articles in the law that the amendment targeted, and its purpose does not go beyond two, the first of which is that the man is freed from the wife's consent to doubling, tripling or quadrupling, and the second is that he marries "minors" without referring to the court or its objection, and without being subject to punishment in either case.

The marriage contract shall be registered in the competent court without fee in a special register

According to the following conditions

1- Submitting a statement without character that includes the identity of the contracting parties, their age, the amount of the dowry and the absence of a legal impediment to marriage, provided that this statement is signed by the contracting parties and documented by the mukhtar of the locality or village or two persons considered to be its inhabitants.

2- The ?statement shall be accompanied by a medical report supporting the safety of the spouses from communicable diseases and health contraindications and other documents required by law.

3. The contents of the statement shall be recorded in the register and signed with the signature of the contracting parties or their thumbprint in the presence of the judge and authenticated by him and the spouses shall be given evidence of marriage.

4. The ?content of the arguments duly registered shall be applied without evidence and shall be enforceable in respect of the dowry, unless objected to by the competent court.

5. Any man who contracts a marriage outside the court shall be punished by imprisonment for a period of not less than six months and not more than one year or a fine of not less than three hundred dinars and not more than one thousand dinars, and the penalty shall be imprisonment for a period of not less than three years and not more than five years if he concludes another marriage outside the court with the establishment of marriage.

Article 2

1. The provisions of this law shall apply to Iraqis except those who are excluded by a special law.

2. The provisions of Articles 19, 20, 21, 22, 23 and 24 of the Civil Code shall apply in case of conflict of laws in terms of location.

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Presidency of the Republic

Based on what was approved by the House of Representatives and ratified by the President of the Republic and based on the provisions of paragraph (a) of clause (first) of article 2, clause (first) of article (61), article (41), and clause (third) of article (73) of the Constitution

The following law was promulgated:

Law No. ( ) of 2024

Deputy Ali Delphi Engines

Law amending the Personal Status Law No. 188 of 1959

Article 1: The text of Article 2 of the law shall be amended by adding paragraph 3 to it, as follows:

1- When concluding a marriage contract, Iraqis may choose to apply the provisions of the Personal Status Law No. 188 of 1959, or the provisions of the Shiite or Sunni sect to apply its provisions in all matters of personal status. Those who have not previously chosen to apply the provisions of a particular school of thought at the time of concluding the marriage contract may submit an application to the competent personal status court to apply the Shariah provisions of personal status in accordance with the doctrine of their choice, and the court must respond to their request. When a dispute arises between the spouses regarding the doctrine that The marriage contract was concluded in accordance with its terms, after the contract was concluded according to the husband's doctrine unless there is evidence to the contrary. If the parties to the same case in the family disagree on the source of the provisions to be applied in their application, the Shariah opinion shall be adopted thereon. (b) The competent court shall be bound by the persons mentioned in paragraph (a) above.

2. The Scientific Council in the Office of the Shiite Endowment, and the Scientific and Fatwa Council in the Office of the Sunni Endowment, in coordination with the Supreme Judicial Council, shall be committed to developing a code of Sharia rulings in matters of personal status and submitting it to the Council of Representatives for approval within 6 (six) months from the date of entry into force of this law. The Code of Sharia Rulings is divided into two chapters, the first regulates the provisions of personal status matters in accordance with the Jaafari Shiite jurisprudence, and the other regulates the provisions of personal status matters in accordance with Sunni jurisprudence, and relies on the opinion of Famous among the jurists of every sect in Iraq. In the event that it is not possible to determine the famous ruling in the Jaafari Shiite jurisprudence, the Scientific Council adopts the opinion of the religious authority, to which more Shiites in Iraq than the jurists of Najaf refer to in tradition. In the event that it is not possible to determine the well-known ruling in Sunni jurisprudence, the opinion of the Scientific and Fatwa Council shall be taken into account. C- The courts shall return and adopt after the entry into force of this Law and until the adoption of the Code of Sharia Rulings in matters of personal status, and in all that is not provided for in such matters. The Code refers to the opinion of the Scientific Council in the Shiite Endowment Office, and the Scientific and Fatwa Council in the Sunni Endowment Office as experts in Sharia rulings to answer according to the famous Shiite and Sunni jurisprudence according to the doctrine chosen by the person to apply its rulings to him. In the event that it is not possible to determine the famous ruling in Shiite jurisprudence, it is due to the opinion of the religious authority, to which most Shiites in Iraq refer to it than the jurists of Najaf. In the event that it is not possible to determine the famous ruling in Sunni jurisprudence, the opinion of the Scientific and Fatwa Council shall be taken.

Article 2: The text of paragraph 5 of article 10 of the law is hereby repealed and replaced by the following:

(e) The Personal Status Court shall ratify marriage contracts concluded by adult Muslim individuals by those who have legal or legal authorization from the judiciary or from the Shiite and Sunni Endowments to conclude marriage contracts after ascertaining that the elements and conditions of the contract are met and that the spouses are not impediments.

Article 3:

Deputy Ali Ghorkkan Delphi

Second: No provision that contradicts the provisions of this law shall apply. First: This law shall be implemented from the date of its publication in the Official Gazette.

Triggering reasons

In line with what is recognized in article 2 of the constitution that no law that contradicts the constants of the provisions of Islam, and article 41 guarantees the freedom of individuals to abide by their personal status and according to their sects or their choice to apply the provisions of the Personal Status Law No. 188 of 1959, as amended, and in a manner that preserves the unity of the judicial system to apply the provisions of the law and the legal provisions of personal status, this law was enacted.

The Iraqi Council of Representatives intends to hold a regular session tomorrow, Tuesday, with an agenda that includes the second reading of the Personal Status Law, despite this controversy and its depth.

Between those opinions and those, observers concluded, through following the fierce conflict between the two parties, that there is an unambiguous trend in transforming the state from civil to religious, under the pretext of democracy, namely "majority rule"!

### Human Rights Perspective on the Amendment of Personal Status Law in Iraq

The ongoing debate surrounding the amendment of Iraq's Personal Status Law highlights significant human rights concerns, particularly regarding gender equality, autonomy, and the protection of vulnerable populations. The proposed changes, which favor religious interpretations of personal status, could undermine individual freedoms, particularly for women and minors.

Key Human Rights Concerns:

1. Gender Equality: The amendment allows men to marry multiple wives without consent and permits marriage to minors without judicial oversight. This directly contradicts principles of gender equality and women's rights, as enshrined in international human rights treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

2. Autonomy and Consent: The removal of the requirement for a wife's consent in polygamous marriages disregards a woman's autonomy and right to make decisions about her own life. Such provisions can perpetuate cycles of dependency and violence.

3. Child Rights: Allowing marriage to minors without court intervention violates children's rights to protection and development. The UN Convention on the Rights of the Child emphasizes the need to protect children from practices that may harm their well-being.

4. Religious Freedom vs. Civil Rights: The proposed law creates a framework that prioritizes sectarian interpretations of personal status over civil rights, potentially marginalizing those who do not adhere to dominant religious views.

Rule of Law (ROL) Considerations

1. Legal Certainty and Predictability: The amendment introduces ambiguity regarding the application of personal status laws based on sectarian lines, which could lead to inconsistencies in legal outcomes. A robust legal framework should ensure fairness and consistency, regardless of religious affiliation.

2. Access to Justice: The reliance on religious courts may limit access to justice for women and marginalized groups. Legal systems should provide equal protection and recourse for all individuals, irrespective of their background.

3. Transparency and Accountability: The process of amending laws should be transparent, with public consultations to ensure that all voices, especially those of women and minorities, are heard and considered.

Suggested Solutions

1. Inclusive Dialogue: Establish a platform for dialogue that includes diverse stakeholders—women's rights groups, legal experts, religious leaders, and civil society organizations—to discuss the implications of the proposed amendments and seek consensus on protecting individual rights.

2. Strengthen Gender Equality Provisions: Amend the proposed law to include explicit protections for women's rights, ensuring that any marriage requires mutual consent and that polygamous marriages are subject to strict regulations that prioritize women's autonomy.

3. Child Protection Measures: Set a minimum legal age for marriage at 18, with strict penalties for violations. Ensure that any exceptions are subject to rigorous judicial review to protect minors from exploitation.

4. Education and Awareness Campaigns: Implement programs to raise awareness about the rights of women and children under the law, emphasizing the importance of consent and autonomy in personal status matters.

5. Judicial Training: Provide training for judges and legal practitioners on gender-sensitive approaches to personal status law, ensuring that they are equipped to handle cases with an understanding of human rights principles.

6. Monitoring and Evaluation: Establish mechanisms to monitor the implementation of the amended law and its impact on women's rights and child protection, allowing for adjustments based on empirical evidence and feedback from affected communities.

The amendment of Iraq's Personal Status Law presents a critical juncture for the future of human rights in the country. Balancing religious beliefs with civil rights is essential to fostering a just and equitable society. By prioritizing gender equality, protecting vulnerable populations, and ensuring access to justice, Iraq can navigate this complex landscape while upholding its commitments to human rights.