Women's Political Rights and Personal Status Issues after 1958
On 14 July 1958, under Brigadier ‘Abd al-Karim Qasim and his ally Colonel ‘Abd al-Salam ‘Arif, a military coup swiftly overthrew the British-installed monarchy. Many inside and outside Iraq, among them numerous scholars, saw the ousting of the Hashemite government and the developments in its aftermath as a revolution.[1007] The new Republican government, headed by Prime Minister ‘Abd al-Karim Qasim (1958-63), was quick to annul the 1925 Constitution and to issue a provisional constitution.
Most researchers focused on the political aspects of the document and on the new power structure it established. They did not attach much importance to what seemed to be nothing more than generic articles promising Iraq's citizens equality before the law ‘in their public rights and obligations' as well as the protection of their rights and liberties (Articles 3 and 9).[1008] However, juxtaposing activists' struggles during the Hashemite period with the new legislation and actions pertaining to women's rights these articles inspired reveals a different picture. To begin with, the new republican regime gave a clear signal that it intended to end women’s exclusion from formal politics. Article 9 of the Interim Constitution promising all citizens equal ‘public rights' was, unlike in the past, generally interpreted as granting all women the right to vote and to run for office.[1009] Moreover, in July 1959, Naziha al-Dulaymi, head of the Women’s League, was appointed Minister of Municipalities. She not only became the first female cabinet member in Iraq, but also in the entire Arab world.True, the post-1958 government failed to establish a parliament; thus, any provision that could have been understood as granting women political rights became a dead letter. However, it is noteworthy that since 1958, all succeeding constitutions were understood as granting women political rights.
The Interim Constitution of 1964, drafted under President ‘Abd al-Salam ‘Arif (1963-66), stated that election is a right of all Iraqis and that their participation in public life is a national duty (Article 39).[1010] Based on the 1964 Constitution, Iraq's National Assembly Electoral Law of 1967 passed under President ‘Abd al-Rahman ‘Arif (1966-68) recognised women’s right to vote (Article 1) and to be nominated as a candidate (Article 20).[1011] But again, the promised National Assembly did not come into being. After the Ba‘th Party seized power in 1968, its two interim constitutions, published in 1968 and 1970, reaffirmed equal rights and duties for all citizens, and prescribed the establishment of a National Assembly.[1012] Similar to ‘Abd al-Karim Qasim, the Ba‘th appointed a female minister, Su‘ad Khalil Isma‘il, as Minister of Higher Education (1969-72). In 1980, a National Assembly was established and, for the first time in their history, Iraqi women participated in national elections.[1013]In light of activists’ pre-1958 struggles, the 1958 Interim Constitution emerged even more clearly as a turning point when we turn to look at the new legal system it set in place. It is noteworthy that on the very same day that the 1958 Interim Constitution was approved, the TCCDR was abolished. This move, the government stated, was ‘out of the desire to bring about equality among the citizens’ and based on the Constitutions Article 9.[1014] With the stroke of a pen, women’s formal ‘tribalisation’ was erased.
In addition, in December 1959, based on the Interim Constitution and with the declared intent ‘to ensure women their legal rights and family independence’,[1015] the government introduced a Personal Status Law. The new law brought family matters under the purview of the state and, in borrowing lenient provisions from the various schools of Islamic law, was attuned to criticism regarding family matters and gender relations raised by activists prior to 1958.
The law required a woman’s consent to marriage, emphasised her entitlement to the mahr and made an effort to tackle the issue of child marriages. It placed severe limitations on polygamy, imposed a number of restrictions on a man’s ability to divorce his wife (talaq) and allowed women to seek dissolution of marriage through judicial proceedings ( tafriq) on various grounds. It also stated that a mother had a preferential right to custody of her children. Maternal custody following divorce was granted until the child was aged seven, but the court was empowered to extend this if the welfare of the child so required. Although based on Islamic law and claiming to be derived from its principles - ‘from those rules in the shari‘a which were generally agreed upon’ - the new law contained a daring reform: Islamic laws of inheritance were abandoned, according women an equal share with men. As the TCCDR was eradicated, the law significantly offered the same treatment for both rural and urban women.The 1959 legislation also created a framework which legitimised women’s participation in the legislative process concerning family matters and, as women became part of the administration, they took part in formulating this law. Minister Naziha al-Dulaymi was among the specialists, jurists, ‘ulama and politicians who prepared the new Personal Status Law; the League, which received official recognition in December 1958, had presented a draft law to the Ministry of Interior that had been discussed and approved by its executive committee. Interviews with the then senior members of the League, Mubejel Baban and Bushra Perto, reveal that the most far-reaching reform included in the law, which gave men and women equal shares in inheritance, was the result of their efforts.[1016]
Following the 1963 coup, Ba‘thists and Arab nationalists’ perpetrators promptly amended the Personal Status Law. This short-lived regime introduced some limited adverse changes regarding polygamy and repealed the articles granting women equality in inheritance, replacing these with rules consonant with the shari‘a, but all other provisions favourable to women remained in force.[1017] In 1964, after ‘Abd al-Salam ‘Arif and military allies ejected the Ba‘thists from power, their new interim constitution adopted the Ba‘thist move concerning inheritance.
In an effort to secure that legislation according women an equal share with men would not repeat itself, Article 12 stated that inheritance rights would be determined according to Islamic law.[1018] However, all other reforms introduced by the 1959 law remained untouched.Yet, from the early 1970s reforms in the realm of personal status continued. Limited pluralism allowed women activists again to exert pressure on the regime to address unfavourable loopholes and provisions. Members of the Ba‘thist General Federation of Iraqi Women (established in 1969) pushed for far-reaching reforms, hoping for a new law rather than an amendment. Some favoured the secularisation of family law.[1019] Members of the Women's League became involved again in formulating a draft family law which was presented to the regime in 1975.[1020] By 1978, an extensive amendment to the law was introduced. Based on a selective integration of Sunni and Shi‘i laws that were favourable to women, the amendment eliminated an ambiguity in the law regarding the minimum age for marriage and, for the first time, placed severe restrictions on detrimental practices that were still prevalent in the countryside. Punishments were set not only for forcing women into marriage, but also for preventing women from marrying, as had been made possible by such customs as fasl marriage and the nahwa. The 1978 legislation also took steps to extend the conditions under which women were permitted to seek dissolution of their marriage as well as prolonged maternal custody until the child reached the age of 10.[1021] Activists expressed disappointment with the modesty of the reform, but some of their demands were heeded.[1022] During the 1980s and 1990s, under Saddam Hussein, many of their achievements were eroded. Still, several amendments favourable to women were introduced as a result of appeals on the part of the Ba‘thist General Federation of Iraqi Women. It is important to note that all of Iraq's leaders after 1958, even Saddam Hussein when he was seeking the support of tribal shaykhs and religious leaders, shied away from cancelling Iraq's 1959 Personal Status Law or officially resurrecting the TCCDR.[1023]
VI.