Women and the Legal System before 1958

Activists’ struggle for improving women’s standing in the realm of personal status during the Hashemite period reveals another even more problematic aspect of the 1925 Constitution.

The establishment of special courts for the tribes facilitated the state's adop­tion of the Tribal Criminal and Civil Disputes Regulation (TCCDR). Introduced during the First World War by the British occupying forces, the TCCDR bolstered tribal leaders and tied them to the British by granting them authority to settle disputes among their tribesmen. After an exhausting world war, as it became necessary to devise a policy that would hasten the evacuation of troops from Iraq and reduce expenditure, the British clung to the TCCDR, which facilitated the cheap, indirect administration of vast territories and the securing of order in the countryside. At the insistence of the mandate authorities, provision for a sepa­rate tribal jurisdiction was included in Iraq's Constitution and, in 1924, the Tribal Regulation became a state law.

Women's activists of the Hashemite period set out to expose the serious impli­cations of the legal system with which they were presented. The Constitution institutionalised state non-intervention in personal status issues, thus offering no recourse to women when faced with unfavourable interpretations of Islamic rules by kin and husbands, as well as in legal procedures pertaining to family relations. In adopting the TCCDR as state law, tribal customs with harsh ramifications for women in the countryside gained legitimacy. Activists expressed concern about child marriages and polygamy. They criticised the ease with which a man could divorce his wife, and her difficulty in dissolving a marriage and maintaining custody of her children. Indeed, books published at the time with the aim of providing qadis, lawyers, and law students with a clear and easy-to-use summary of Shi‘i Ja‘fari and Sunni Hanafi laws concerning matters of personal status determined that a Shi‘i mother had the right to custody of her son only prior to weaning - that is, until the age of two - and of her daughter until the age of seven; according to Sunni Hanafi law, a mother's right to custody continued until her sons were seven and her daughters were nine, at which time the children passed into their father's care.^[1001]

Intellectuals, such as the poet Nazik al-Mala'ika (1922-2007), decried the ability of fathers to tear children away from their mothers as the harshest, most unreason­able type of deprivation. Activists such as Naziha al-Dulaymi (1923-2007), the leader of the underground League for the Defence of Women's Rights, protested that women, especially those of the ‘peasant class', were treated as work tools first by their fathers and later by their husbands.

Activists also condemned abuses resulting from the state sanctioning of customary practices detrimental to women under the TCCDR. They protested against shighar, exchange marriages, when one woman serves as another's mahr; confiscation of the m ahr by guardians; a l-nahwa, the right of a cousin to forbid the marriage of a female relative; and fasl marriage, in which women are given in marriage as part of a dispute settlement. Women handed over in fasl marriage were known to be enslaved and maltreated with no right to demand a divorce. Prominent women also protested against the legitimisation of honour murders. In her poem ‘Washing off Disgrace', Nazik al-Mala'ika lamented the brutal murder of a young woman in the name of honour. The poem was seen as expressing a new generations aversion to the archaic practices preserved in society.^[1004] However, her description of the murderer as he sat in a tavern boasting of his deeds and clean­ing his dagger also bemoaned the fact that he could get away with it. Her criticism, subtle though it was, clearly conveyed the notion that women lived in fear and submissiveness because there was no law to protect them from their kin.^[1005] The activists Sabiha al-Shaykh Da'ud (1912-75), a member of the directorate of two of the Iraqi Women's Union's constituent organisations, and Naziha al-Dulaymi concurred that rural women were subjected to ‘double servitude' - enslaved like rural men to the landlords and enslaved by their husbands as well.

Activists were not alone in their critique of the separate legal systems that constructed Iraqis as unequal before the law. However, their criticism brought to light the ramifications of the TCCDR and the state's non-intervention in the realm of personal status on women. The constitutionally backed legal system left all female citizens unprotected from harsh treatment by kin and husbands and from uncompromising rulings by religious clerics. It constructed rural women - the majority of women in Iraq - as tribal possessions and allowed men unbridled power over their lives.

V.