Iraq's Adoption Of Sharia Law: A Historical Overview

Iraq's legal system is in a period of transition following the US-led invasion in 2003, which saw the fall of the Ba'ath Party. The country's current constitution, approved in a national referendum in October 2005, makes Islam the official state religion and stipulates that no law may be enacted or enforced that violates the undisputed teachings of Islam.

While the constitution promises civil liberties such as freedom of speech, freedom of religion, and freedom of assembly, these are subject to two main exemption clauses: the Iraqi Council of Representatives has the power to define what these freedoms mean, and no freedom may conflict with Islamic morality.

In 2024, proposed amendments to the Personal Status Law threatened to grant religious councils of the Sunni and Shia sects in Iraq the authority to develop their own code of Sharia rulings on personal status matters, effectively threatening women's and girls' rights and their equality before the law. The amendments would also have removed critical protections for divorced women and opened the door to legalising child marriage. However, due to a nationwide outcry, the amendments failed to pass.

The Iraqi Constitution and Sharia Law

The current Constitution of Iraq was approved in a national referendum in October 2005. It outlines the format of the new republican government and the rights and responsibilities of the Iraqi people. The Constitution promises civil liberties, including freedom of speech, freedom of religion, freedom of assembly, freedom of expression, freedom of the press, and the right to a private life.

Islam is the official state religion, and no law can be enacted or enforced that violates the "undisputed" teachings of Islam. Article 2 of the Constitution makes Islam the official religion of the state, citing it as a basic source of legislation. It states that no law can be passed that contradicts its "undisputed" rulings. The interpretation of this provision falls to the Supreme Court, which may include clerics.

Article 39, the section dealing with personal status law, deems Iraqis "free in their personal status according to their religions, sects, beliefs, or choices." However, it leaves the specifics of this up to subsequent legislation. This ambiguity has caused concern among women's groups and secularists, who worry that it could lead to an Iranian-style theocracy, severely limiting women's rights.

In 2003, the Iraqi Interim Governing Council issued Resolution 137, which expanded the power of Muslim courts to rule on all disputes among Muslims concerning marriage and divorce. This resolution was later vetoed by the head of the Coalition Provisional Authority, L. Paul Bremer, due to concerns raised by human rights groups that it would erode Iraqi women's rights.

Sharia law, the body of Islamic law developed by religious scholars after the death of the Prophet Muhammad, is open to a wide range of interpretations, some of which are quite egalitarian. While the Iraqi Constitution does not specify which version of Islam will prevail, the battle over its interpretation has already begun. Progressive Muslims are seeking to reinterpret the rules to accommodate a modern role for women, while traditionalists are imposing their conservative positions.

The future of Islamic feminism in Iraq depends on politicians like Salama al-Khafaji, a devout Shiite who has pursued political ambitions despite objections from her ex-husband. Al-Khafaji has argued that Islamic rules provide better protection for women in divorce and custody proceedings than secular law.

While the Iraqi Constitution makes Sharia supreme in the country, there are precedents for advancing women's rights within an Islamic framework. For example, Morocco recently revised its personal status code by raising the marriage age and abolishing polygamy, using Islamic grounds and references to the Koran to defend the changes. Similarly, Indonesia has seen progressive change come from within Islam through organizations like Fatayat, which trains its members in Islamic jurisprudence to hold their own in religious debates.

In conclusion, while the Iraqi Constitution establishes Islam as the official state religion and gives it a central role in legislation, the interpretation and application of Sharia law remain contested. Progressive Muslims and women's groups are working to advance women's rights and promote a modern role for women within an Islamic framework. The success of these efforts will have significant implications for the future of Iraq and the broader Muslim world.

The Impact of Sharia on Women's Rights

Sharia, or Islamic law, has had a complex and varied impact on women's rights in Iraq and other Muslim-majority countries. While some aspects of Sharia have been interpreted to restrict women's rights, there are also progressive interpretations and efforts to advance women's rights within an Islamic framework.

In Iraq, the influence of Sharia on women's rights has been a contentious issue, especially following the US-led invasion in 2003 and the subsequent adoption of a new constitution in 2005. Article 2 of the Iraqi constitution makes Islam the official state religion and cites it as a basic source of legislation, stipulating that no law can be passed that contradicts its "undisputed" rulings. This provision has been criticised by women's rights activists and secularists, who fear that it could be used to restrict women's rights and roll back the gains made under the previous secular regime.

One of the most controversial aspects of the Iraqi constitution is Article 39, which deals with personal status law. This article leaves it up to subsequent legislation to define the freedom of Iraqis to follow their own religious laws regarding personal status issues such as marriage, divorce, and inheritance. While this could allow for a relatively benign system where Iraqis can choose the legal code that applies to them, there are concerns that it could also lead to an Iranian-style theocracy that severely limits women's rights.

The Complex Impact of Sharia on Women's Rights

Sharia has had a complex and evolving impact on women's rights in Muslim-majority countries. On the one hand, some provisions of traditional Islamic law have been detrimental to women's rights. For example, under traditional Islamic law, child marriages were allowed, men were permitted to have up to four wives, and women were legally required to be obedient and submissive to their husbands. In terms of inheritance, women are typically entitled to half the share of their male siblings, and their testimony is considered less weighty than that of men.

On the other hand, it is important to recognise that Islamic law has also conferred some rights on women. Even in medieval times, Muslim women enjoyed certain rights that Western women only gained much later, such as the right to own and manage property, to sue and be sued, and to enter into contracts. Additionally, progressive interpretations of Islamic law have emerged, with Islamic feminists arguing that the religion is compatible with modern notions of women's rights. These interpretations emphasise the egalitarian aspects of the Quran and seek to disentangle Islamic teachings from tribal customs and traditions that may have contributed to the subjugation of women.

Efforts to Advance Women's Rights within an Islamic Framework

In several Muslim-majority countries, there have been efforts to advance women's rights within the framework of Islamic law. For example, in Mauritania, the government has backed proposed legislation to "remove prejudice and discriminatory attitudes towards women and girls" and better protect them from violence. Similarly, in Morocco, progressive reforms to the personal status code were implemented with references to the Quran to justify the changes. Indonesia has also seen progressive change, with organisations training women in Islamic jurisprudence to hold their own in religious debates and promote women's reproductive health and family planning.

In Iraq itself, there is a history of legal reforms that have improved women's rights, such as the 1959 personal status law, which included progressive provisions derived from various schools of Islamic jurisprudence. This law set the marriage age at 18, prohibited arbitrary divorce, restricted polygamy, and mandated equal inheritance rights for men and women. While this law was annulled in 2003, it demonstrates that it is possible to advance women's rights within an Islamic framework in Iraq.

The Iraqi Legal System

Iraq's legal system is a mixed legal system of civil and Islamic law. The country's judiciary interprets and applies the laws of Iraq, ensuring equal justice under the law and providing a mechanism for dispute resolution. The judiciary is composed of the Higher Judicial Council, the Supreme Court, the Court of Cassation, the Public Prosecution Department, the Judiciary Oversight Commission, the Supreme Iraqi Criminal Tribunal, the Central Criminal Court, and other courts regulated by law.

Islam is the official state religion, and no law can be enacted or enforced that violates the "undisputed" teachings of Islam. The Constitution makes Sharia, or Islamic law, the law of the land. Sharia covers all aspects of public and private life and is derived from the Quran and the Sunnah, the teachings and works of the Prophet Muhammad. While Sharia is open to interpretation, the Constitution does not specify who will decide which interpretation will prevail.

The Iraqi Civil Code, enacted in 1951 and effective in 1953, is based on the Egyptian and French Code Civil. It incorporates Islamic elements but is primarily based on continental civil law. The Code is divided into a preliminary part and two main parts, each composed of two books. The preliminary part contains definitions and general principles, while the first main part addresses obligations, contracts, torts, and unjust enrichment. The second main part addresses property, ownership, and real rights.

The 1959 Iraq Law of Personal Status governs how religious courts settle disputes among Muslims in Iraq regarding marriage, divorce, custody, inheritance, and other similar matters. These rulings are binding unless they conflict with other provisions of the Iraqi legal system.

The Personal Status Law

The PSL sets the age of marriage at 18 years old and addresses child custody, inheritance, and alimony with a focus on the welfare of children and women. It also prohibits arbitrary divorce and restricts polygamy, making that practice nearly impossible. Additionally, it requires that men and women be treated equally for inheritance purposes. All marriages must be contracted before a judge within the state court system, and marriage outside the courts is criminalized to ensure the consistency of jurisdiction over family affairs.

In 2024, there were proposed amendments to the PSL that would allow for marriages outside of the formal court system. This has raised concerns among women's rights activists that it could lead to an increase in "pleasure marriages" and give most, if not all, decision-making power over family matters to clerics, making family law arbitrary and disregarding human rights. The proposed amendment would also remove critical protections for divorced women, such as the right to remain in the marital home or receive financial support from their former husband.

The pushback against the proposed amendment has been spearheaded by Iraqi women themselves, with women MPs and protesters on the streets speaking out against it. A survey conducted in August 2024 by the Iraq Polling Team found that 73.2% of respondents were strongly opposed to amending the PSL. Despite the widespread opposition, Iraq's parliament held a second reading of the bill in September 2024, moving closer to passing it.

The Iraqi Penal Code

In 2003, following the US-led invasion and the fall of the Ba'ath Party, Paul Bremer, the head of the Coalition Provisional Authority (CPA), issued Order Number 7, which stipulated that the binding Iraqi Penal Code would be the 1984 vintage third edition of the code first enacted in 1969. Bremer made amendments to both the Penal Code and the Criminal Procedure Code of 1971. These amendments included:

• Increasing the maximum penalty for kidnapping, rape, and sexual assault to life imprisonment.
• Setting the maximum penalty for indecent assault at 15 years.
• Increasing the maximum penalty for the destruction of public utilities to life imprisonment.

The Constitution also states that Islam is the official state religion, and no law can be passed that contradicts the "undisputed" teachings of Islam. This has raised concerns among critics who worry about the impact on women's rights and the potential for a setback to democratic consolidation in Iraq. The interpretation of Islamic law and its role in the legal system remains a contentious issue in the country.

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