BAGHDAD (Reuters) - Proposals that would legalize the marriage of nine-year-old Iraqi girls are unlikely to become law, but indicate the growing role of religion in a country some fear is going down the path of neighboring theocracy Iran.
Based on Shi‘ite Islamic jurisprudence, the Ja‘afari Law’s advocates say it would bring regulation of personal status - comprising family law, wills and inheritance - into line with sharia religious law.
It describes girls as reaching puberty at nine, making them fit for marriage, grants fathers sole guardianship of their children from the age of two, and entitles a husband to insist on sexual intercourse with his wife whenever he desires.
Iraq’s own clerical establishment does not back the bill, making its chance of success very slim. Critics say the draft is all about short-term political advantage, as Shi‘ite Islamist parties compete with each other for votes in the run-up to April 30 elections in a highly-charged sectarian atmosphere.
“It’s a completely shameless political stunt,” said Haider Ala Hamoudi, associate professor of law at the University of Pittsburgh who writes on Iraqi, Middle Eastern and Islamic Law.
Parliament adjourns this month for the national elections, so the bill will have to be taken up again by the next government, which is expected to take months to form.
The proposed legislation has nonetheless drawn the ire of secular and women’s activists who fear their rights have been steadily eroded in Iraq in the years following the overthrow of dictator Saddam Hussein.
Critics say the law, which would apply only to the country’s Shi‘ite majority, also institutionalizes religious divisions.
“It creates sectarianism,” said women’s rights activist Hanna Eduar, who described the bill as a “crime against humanity”. “It destroys the unity of national legislation based on the personal status law”.
Passed in 1959, the existing personal status law is often held up as the most progressive in the Middle East. It does not differentiate between sects, and sets the minimum age of marriage for both men and women at 18.
Proponents of the Ja‘afari Law say many families marry off daughters underage anyway, particularly in the rural south, so the bill would protect young brides by codifying their status.
“The law does not make the marriage of underage girls obligatory,” said Shi‘ite women’s rights activist Thabat al-Unaibi, adding she would not let her own two daughters marry until they were old enough to have finished their studies.
“Why all the fuss over this issue?”
Today’s Shi‘ite Islamist parties all trace their roots back to the 1950s, when Prime Minister Nouri al-Maliki’s own Dawa party was formed in reaction to clerics’ alarm that Islam was becoming irrelevant in 20th-century Iraq.
That has changed since 2003, as Shi‘ite Islamist parties came to power through the ballot box.
“For more than 1,000 years, our sect was living underground, a sect which is not officially recognized,” said Sheikh Mohammed al-Humaydawi, a Shi‘ite cleric and candidate in the elections scheduled for April 30.
He backs the bill, but said: “I think this step (the law) proves our existence, more than being an expression of Shi‘ite jurisprudence.”
The Ja‘afari Law, named after a jurist from the early years of Islam, was approved by the cabinet in February along with another draft that seeks to return control over personal status matters to the clergy by creating a supreme council to preside over the judiciary.
For some, the move shows how far Iraq has fallen under the sway of neighboring Shi‘ite theocracy Iran, where a cleric, Ayatollah Khamenei, holds ultimate authority at the apex of a political order known as “Velayet e-Faqih” (“guardianship of the jurist”).
“Drafting a law showing clearly that a government institution lies beneath the authority of a supreme Shi‘ite cleric means Iraq is likely to end as a state following the Velayet-e Faqih,” said lawyer and constitutional expert Ahmed Younis.
“This is a very dangerous precedent”.
Iraqi justice minister Hassan al-Shimari stuffed a copy of the draft law though the golden grate surrounding a tomb that contains the remains of a revered Shi‘ite Muslim imam at a shrine in the holy city of Najaf, in a gesture apparently intended to show the bill’s significance.
Shimari, who proposed the draft, is a member of the small Islamist Fadila (Virtue) party allied with Maliki, who is seeking a third term in office.
Political analysts say the law might increase Fadhila’s share of seats in parliament - a modest seven - at the expense of Shi‘ite parties opposed to Maliki’s re-election bid.
“In a sense it helps him (Maliki) too, even though he’s not campaigning on this issue,” said Kirk Sowell, a Jordan-based political risk analyst and publisher of Inside Iraqi Politics.
Defending the draft, Shimari denied it was politically motivated, dismissed secular and Sunni opposition and accused some Shi‘ite parties of sacrificing higher principles by failing to come out strongly in favor.
“Of course, there are those who don’t believe in Islam as a system to organize the affairs of life,” he said in a television interview. “Then there are others who have dealt with this law from a political vantage point, even if they share our ideological vision”.
But how to put that vision into law is itself a subject of contention, and the Ja‘afari law has not won the crucial backing of the clerical establishment in Najaf.
One of Iraq’s four main Shi‘ite leaders Ayatollah Basheer al-Najafi said the law contained “vagaries” and no jurist would approve it, deferring to the country’s most influential cleric Grand Ayatollah Ali al-Sistani, who has yet to weigh in.
“Even Najaf, which I suppose would be most empowered by this sort of legislation, doesn’t seem to support it,” Hamoudi said.
Additional reporting by Ahmed Rasheed and Isabel Coles; Editing by Andrew Roche