ERBIL, Kurdistan Region - Iraq’s federal supreme court reaffirmed on Tuesday that the constitution grants citizens the right to manage personal status matters based on their religion, sect, beliefs, or choices, amid proposed parliamentary amendments to the Personal Status Law.
A bill to amend the 1959 Personal Status Law is currently on the Iraqi parliament’s agenda. If passed, it would allow Iraqis to choose to follow religious rules to govern matters in their marriage. For Shiites, the proposed bill specifies following the provisions of the Jaafari school of jurisprudence, which permits marriage for girls as young as nine and boys at fifteen.
Iraq’s federal supreme court released an interpretation of Article 41 in the 2005 constitution on Tuesday at the request of Deputy Parliamentary Speaker Muhsin al-Mandalawi.
The interpretation affirmed that the constitution grants individuals the freedom to manage their personal status and no law shall infringe on rights enshrined in the constitution.
"The constitution grants the Iraqi people the freedom to organize their personal status according to religion, sect, belief, or according to their personal choices, and the exercise of that right may not be restricted or limited except based on a law..." read the court's interpretation.
Personal status involves decisions, contracts, and agreements in Iraq such as marriage, divorce, and inheritance.
The interpretation went on to state that "such limitation and restriction does not affect the essence of the right or freedom, in accordance with what is stated in Article 46 of the constitution, provided that that freedom to adhere to personal status is regulated by a law."
The article referenced reads: "Restricting or limiting the practice of any of the rights or liberties stipulated in this constitution is prohibited, except by a law or on the basis of a law, and insofar as that limitation or restriction does not violate the essence of the right or freedom."
The interpretation also cited Article 41: “Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices, and this shall be regulated by law.”
The court additionally cited Article 13 stipulating that the constitution is the highest law in the country, binding in all cases, and “any other legal text is null and void if it is in violation of that constitution.”
The court’s statement noted that the constitution requires that “no law be enacted that contradicts with the constants of the provisions of Islam… the principles of democracy and… the fundamental rights and freedoms contained in this constitution,” while guaranteeing the religious rights of all other religions.
Speaker Mandalawi’s request, summarized in the court statement, says that the amendment adds a clause to the Personal Status Law that “grants the right to Iraqi men and women to choose to apply the provisions of the law in force or to apply the provisions of Islamic Sharia according to a specific sect and in all matters of personal status.”
If the amendment is passed, couples are required to choose the religion of the spouse whose laws will govern their marriage. However, if they disagree, the husband's faith would prevail, not allowing women to choose their preferred faith for marriage.
On Saturday, a spokesperson for The Islamic Scholars Association in Kurdistan, Abdullah Sherkawayi, criticized the proposed amendment as it “seeks to undermine the judiciary,” establishing de facto “marriage offices” outside the courts.
Many marriages in Iraq are unregistered, conducted by religious leaders, and not legally valid. The proposed amendment calls for legitimizing marriages authorized by religious leaders.
Rights’ activists opposing the amendments have staged protests across Iraq and the Kurdistan Region.
Earlier this month, women lawmakers began collecting signatures demanding the parliament “permanently withdraw the proposed amendment” from its agenda.
The amendment was demanded by over 100 Shiite members of parliament but has faced backlash from the rest of the legislature. In August, around 130 lawmakers signed a petition against its passage, according to MP Kurdo Mohammed.
The bill was introduced by independent MP Raed al-Maliki, who also proposed controversial amendments to the anti-prostitution law earlier this year, criminalizing any practice of homosexuality and sex-reassignment surgeries.
The proposed amendments to the Personal Status Law remain unsettled in parliament.
Updated on September 18 at 9 a.m. with court's interpretation of Article 46
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