This is an edited version of a presentation on Iraq’s constitution organized by the Iraqi Centre for Legal Studies last month in London. The constitution was approved in a national referendum Oct. 15, 2005, with a provision that amendments would be considered later.
Women’s rights need to be addressed among essential changes required in Iraq’s constitution.
Starting with its preamble, contradictory formulations are apparent. On one hand, it asserts the aspiration of the Iraqi people to build a united, democratic federal republic. However it fails to maintain the right of the female half of the people to equality, in that it says nothing should contradict the Shari’a — Islamic law dating from about 14 centuries ago (which was progressive compared with pre-Islamic gender relations). Such shortcomings reflect the current balance of power in favor of Islamist parties.
The demand for women rights is not a novelty in our country. Prior to 1959 we had no civil law governing matters of family status. Efforts to draft such a law were made in the second half of the 1940s and the early 1950s.
The first Iraqi women’s organization to struggle for gender equality was the Iraqi Women’s League, which came into being in 1952. I am proud to have been one of its founders. We began to enjoy a better socio-political culture, especially after the revolution of July 14, 1958, which had considerable impact on women’s issues.
In early 1959 we formed a special committee, which included women lawyers, to prepare a draft for a new personal status law. The draft was submitted to the government by the president of the Iraqi Women’s League, Dr. Naziha al-Dulaimi, who was a cabinet minister at the time — the first woman cabinet minister in the Arab world. The draft was studied and revised by a committee of judges, lawyers and clergy. They made a few amendments, and the law was issued on Dec. 30, 1959.
Although based on principles from the Shari’a, the new law contained some daring reforms giving women more stability and security.
For example, the law required a woman’s consent to marriage, which was previously not required, and made positive changes concerning child custody.
The most far-reaching reform was the one which gave men and women equal shares in inheritance. The lawmakers based this article on the Ottoman law regulating the rights of succession to use of government land, which awarded female heirs an equal share to that of their male counterparts in all cases.
Although the 1959 law did not ban polygamy, it set out strict limitations. It provided that marriage to more than one wife was not sanctioned without the permission of a secular judge based on two conditions: (1) the husband’s financial capacity to support more than one wife, and (2) that there was some “lawful benefit” involved. The determination of this would be left to the discretion of the judges.
The law also imposed restrictions on a man’s ability to divorce his wife, and allowed women to seek dissolution of marriage through judicial process on various grounds such as injury, familial discord, inability of the husband to consummate the marriage due to mental or physical illness, or the husband’s failure to pay maintenance.
New amendments in the 1970s regarding polygamy made it illegal to marry more than one wife with certain exceptions such as approval by the first wife and in cases of mental illness or infertility, but those exceptions always required the approval of a secular judge.
The 1959 law stated that the mother had a preferential right to custody of her children. However this right could be forfeited if she were a minor, insane, untrustworthy, unfit for the task, or if she married a foreigner.
In any case, maternal custody was only granted until the child was age 7, allowing the court to extend this period if the welfare of the child so required. A 1978 amendment extended maternal custody until the child reached age 10, and allowed an extension by the court until age 15 if the child’s welfare so demanded.
After the fascist Baath party came to power on Feb. 8, 1963, members of our league not only lost their jobs; many were subjected to imprisonment, kidnapping, torture and execution. The new regime repealed the law and replaced it with Law No. 11, aiming to remove articles relating to inheritance. However they were forced to go back to the 1959 law, with removal of two major articles. It was subsequently amended in the 1970s as mentioned above.
During the 1980s and 1990s, divorce became a weapon of the regime. Women were encouraged to seek divorce if their husbands evaded or deserted military service, defected to the enemy side, were convicted of treason, or held foreign citizenship and did not return to Iraq for more than three years. Men who divorced wives of “Iranian origin” became eligible for government grants. Women under 45 were not allowed to travel alone abroad; they had to be accompanied by a “mahram” male — a husband, father or brother.
Since the toppling of Saddam Hussein, the threat of abolishing Iraq’s progressive personal status law has hung like a dark cloud over the heads of Iraqi women.
On Dec. 29, 2003, the Interim Governing Council passed Decree 137 to abolish that law. In its place, Shari’a was to be applied in matters concerning family status law. In response, activists representing 80 Iraqi women’s organizations held a series of organized meetings and protests. They demanded not only repeal of this decree but also an active role in drafting a new law. Secular political parties also opposed the decree. The interim governing body was forced to reconsider, and the decree was repealed two months later.
Unfortunately, this was not the end of the matter. The supporters of Decree 137 came back with Shari’a law through the new constitution.
Article 41 of the new constitution states that Iraqis are free to practice personal status matters in accordance with their religion, sect, belief or choice, and this will be regulated by a law to be enacted. But this is rather ambiguous.
Thus there is still a danger of replacing the existing family status law with one which strictly adheres to Shari’a.
It is worth noting that, due to political bargaining, the constitution ignored the provision of the previous Transitional Administrative Law honoring international treaties regarding human rights in general and women’s rights in particular. This is a major setback to our country’s commitments towards international bodies, although Iraq is one of the founding members of the United Nations.
In brief, Iraqi women have lost many of their achievements, for which they sacrificed so much over the past decades.
Thousands of years ago, Iraq was the birthplace of the world’s first constitution (the Hammurabi Code). Our lawmakers need to live up to that glorious heritage.
Mubejel Baban worked at the Central Bank of Iraq for 25 years and was one of the founders of the Iraqi Women’s League (Al-Rabita) in 1952. She left Iraq for the U.K. in 1978, fleeing the Saddam Hussein regime. Author of many articles on women’s issues, she has held leading roles in the Iraqi Association in Britain and is currently a member of its advisory committee.