Translation by Jeff Reger, Kettering Foundation
Six of the seven teams comprising the Arab Network—representing Bahrain, Egypt, Jordan, Lebanon, Morocco, and Yemen—has submitted a draft proposal for their individual approaches addressing the issue of personal status laws. Within this broader topic, which encompasses the national laws that govern interpersonal and interfamilial relations, each team has defined a specific focus that aims to address the particular issue viewed as most crucial to their respective public. The proposals address the possible topic for public issues forums, as well as approaches to creating issue books to be used in these forums.
The seventh team, representing Algeria, will submit a paper on the Algerian law in a special case study during the Network meeting in Beirut.
The Kingdom of Bahrain has proposed a project examining ways of creating a unified law for the provisions governing families. The proposed outline begins with the explication of the essential concepts and terms, examining international law, the constitution, laws of personal status, and laws of familial provisions among others. The team then plans to move to strategic facts, such as a summary review of the topic’s history in Bahrain, international treaties ratified by Bahrain, the principle of equality between the sexes (both before the law and before the judiciary), the familial rights of women, then moving to the benefits and goals of enacting changes to the provisions governing family law, by looking to the basis for legalizing these changes.
The issue book will focus on three different approaches to legalizing change: ratification through royal decree, through the advisory council and parliament, or through a special, elected committee composed of judges and representatives of civil society.
Although personal status laws have a largely negative influence over familial relations and the involvement of women in activities in public fields, and on the equality between men and women regarding the rights of citizenship, the most dangerous effect of the law is connected to the marriage of young girls. The law permits the marriage of young girls at any age, and the past few years have witnessed a number of such cases, the most famous being the marriage of the little girl Najoud, which was consummated at the age of 12.
Civil society organizations have succeeded in eliciting divorces for some of these girls, married at a premature age like Najoud, but have not succeeded so far in amending the law. The political system is fractious, and representatives in parliament of the traditional tribal and religious elite, regardless of political party, stand against reforming the law to create a minimum age for marriage.
The issue was identified through Arab Network meetings, and presents a new approach and methodology (relying on the Kettering Foundation’s issue framing methods) that distinguishes the Yemeni team’s study from other preexisting studies of personal status laws. Yemen’s law represents one of the most discriminatory laws against women in the Arab world, therefore the issue was supported by the Yemeni team for discussion guides and public issues forums.
The law is discriminatory toward and violates the rights of women. Some of its most prominent shortcomings that lead to discrimination and violation of women’s rights, include the following: permitting the legal guardian (closest male relative) to marry off a girl, no matter her age, which has resulted in the marriage of several girls ages 9 or 10; stripping women of the right to choose their husband, instead authorizing her male relatives; granting the husband complete familial authority, and not granting the woman any power, not even the right to consult with her husband regarding decisions related to the family’s affairs, sexual relations included; giving the husband sole authority in decisions regarding place of residence; defining social roles on the basis of the man’s monopoly over public roles and roles outside the house, with the woman assigned roles only within the family and in private; and requiring complete obedience of the wife to her husband’s decisions and limiting her role to their execution.
The Yemeni team’s goal from organizing these forums is to deliberate about the personal status law and encourage dialogue between the various factions in civil society, discussing different visions, and therefore the team has undertaken a literature review and discussed the topic with various actors within civil society. The team has concluded that the ideal approach is to frame the topic and define choices that deal with the problem of the current personal status law.
The first is mobilization. Human rights activists and rights organizations supportive of women should pursue the issue, seeking to gather support in parliament to amend the law, and to raise awareness of parliamentary representatives that the current formula of the law is based on tribal customs more than it is based on Islamic law, which the Yemeni constitution says is the only source for all legitimate law.
The second choice is negotiation, which like all the options involves tradeoffs. The ruling party holds 76% percent of the seats in parliament, and most members of the party are tribal sheikhs who could be described as revenue-seeking elites rather than committed ideologues, and who would respond to a ruling-party proposal, considering the ruling party’s patrimonial relationship with them. Therefore, a deal with the ruling party to amend the law could possibly lead to reform.
The third choice is the creation of change in the balance of political power in the parliament. Legal reform in 1998 and 1999 bore changes that violated women’s rights and discriminated against women, as a result of an imbalance in parliament in favor of traditional powers. Modern powers were absent—there was not even one female representative—therefore there was no defense of women’s rights. Reform of personal status laws requires changing the regulatory laws of the legal system, chief among them the electoral law, so that the system becomes one of proportional representation. This new balance of power in parliament would favor modern forces, supportive of democracy and human rights, which would then not only support reform of personal status laws, but also support reform of the entire legislative system in connection with the rights of women.
The team has held meetings and consulted on the topic, defined tasks, and has drawn up a time table for completion and agreement on methodology, which will follow the methodology of the Kettering Foundation—issue framing, which has been outlined above. The report concludes by detailing its past meetings, the subject of the literature review, its written research and interviews, and the actions of the group in the coming months, beginning with work on preparing the first draft of the issue guide, which will then be tested using discussion and focus groups.
The Jordanian team has chosen to focus on the new personal status law in Jordan, which came into force in November 2010 after two years of discussion across civil society institutions, including experts in Islamic law and jurisprudence. The Judiciary accepted some ideas from civil society, while rejecting others. The new law consists of 327 articles, up from the 187 of the prior law, an expansion reflecting the substantial changes in Jordanian society since the previous law was created three decades ago. Like the old law, the new one is based on Islamic law, and has been welcomed in a number of circles for positive developments, like the protection and advancement of women’s rights through the establishment of an alimony fund and other issues regarding marriage and divorce.
Conversely, many women’s rights groups have criticized some of the law’s interpretations of Islamic law, particularly in regard to polygamy and arbitrary divorce.
The Jordanian team has worked on studying the text of the new law, and will present a paper at the next Arab Network meeting in February 2011 containing three approaches for an issue book and associated forum, which will contain an intensive review of the most prominent articles of the new law that distinguish it from the old. The first approach follows the official, patriarchal Islamic approach; the second, a feminist Islamic approach; the third, an approach using civil rights, based on the Jordanian constitution, the UN Convention on the Elimination of all forms of Discrimination Against Women, and human rights norms. Since the details of the law are manifold, the group will select some topics within it, such as male dominance with respect to marriage and the family, addressed from a values-based perspective (without losing sight of the religious and rights aspects, of course). The paper would likely end with thought-provoking questions, intended to raise questions about the new law’s deficits in providing legal and social rights to contemporary Jordanian women and families, and touch on a formula for a personal status law in Jordan based on a “humanitarian” philosophy, rather than a form of patriarchal “religiosity.”
The Lebanese team has focused on the specific meaning of personal status in a country with 18 legally defined sects. The law, in effect, depends on one’s religion, sex, marital and familial status. Rather than one unified law, the system of personal status in Lebanon, as in many other Arab countries, creates multiple legal systems—one for each of the 18 recognized sects—divided in large part among the various legally recognized Islamic schools and Christian faiths. Each sect’s law has a monopoly over its adherents, so that sectarian authorities enjoy legislative and judicial independence. This strange situation creates numerous problems, from jurisdictional conflicts between provisions of the various sects or with civil provisions, to different rulings regarding the same issue and litigants. More fundamentally, such a situation creates inequality among citizens belonging to the same united, sovereign nation—where some citizens have the right to a divorce, depending on their sect, while others do not, because their personal statuses mean their law is based on a principle of unbreakable marriage. A non-Muslim daughter inherits from her father on an equal basis, while the male takes the share of his sisters in the Islamic sects.
However, the most dangerous aspect of this law is how it strips the Lebanese state of its sovereignty over its citizens, directing their loyalties away from the state and toward various religious authorities, depending on if they belong to one faith or another. This creates alternative authorities with the right to impose their laws over their followers, even when this conflicts with civil provisions, reducing the powers and responsibilities of the Lebanese state. This monopoly of religious authorities and its willing relinquishment by the state undermines Lebanese citizenship, creating a web of loyalties not found anywhere else in the world, contributing to a weakening of the state regarding its sovereign monopoly and responsibilities to administer and organize public life and state affairs. Conversely, unified legislature and law could contribute to strengthening the ties in a society suffering from ruptures and divisive alignments, after years of wars and occupations.
These laws have massive influence over the situation of Lebanese women, who suffer from patriarchal discrimination in their sects’ provisions. The Lebanese team outlines the prejudice and inequality found in all stages of life, from birth to death. A birth certificate defines one’s sect, based on the father’s faith exclusively. And while the constitution ensures freedom of belief and religion, it is extremely difficult to change in practice. Other issues include marriage, divorce, and inheritance—issues even arise after death, where cemeteries are divided exclusively according to religion.
Many of these provisions represent flagrant violations of international treaties and charters that Lebanon has signed, because some religious leaders and followers support the application of religious law to daily life. However, growing voices are calling to update and unify the law under the civil authority of the state, respecting basic human rights such as equality, and especially the choice to define one’s beliefs and way of life.
The group proposes observation of four directions in Lebanese society: the call to enact and apply mandatory civil law, subject to all; the call to enact and apply civil law selectively regarding personal statuses, for those citizens who desire it; the call to reform applicable sectarian laws in terms of giving a larger margin to the state; and keeping the situation as it is, without change. A working plan for the group follows, including plans for a sweeping review of laws and relevant literature and studies, defining a framework and different proposals as they proceed toward writing the issue guide, and inclusive forums for discussing the guide and its suggestions with broad involvement across society.
The Egyptian team has gathered sources and facts connected to the topic of family law in Egypt in preparation for creating a guide to the forums, consulting in the process a vast range of domestic, civil society groups, and institutions concerned with this issue. Building on this, the team has come up with a list of questions to begin the dialogue with these concerned parties: “What are the most important problems of the current personal status laws? What are the most important social effects that result from these laws? Are these issues connected to the actual text of the laws, or rather to the prevailing social norms that result in misunderstandings of the laws, or is there some other reason? Does the current law give women their full rights, on a basis of equality between the sexes, which is called for by Islam? In your view, do you see a discrepancy between the current law and Islamic law, specifically in its higher purpose of achieving just relations among humanity?” The proposal then asks for specific comments on a list of common problems in Egypt connected to family law, such as discrimination against women in cases of alimony, discrepancies in divorce law and laws governing inheritance, among others. The team has proposed a list of individuals to be interviewed about these questions, and will prepare a first draft of the issue guide to present at the group’s upcoming meeting in February. The guide aims to address a number of issues: the aging law’s lack of relevance in an Egypt that has witnessed much economic and social change since the law was created in 1920, raising myriad legal conflicts; the law’s discrimination against women, based on a dominant patriarchal culture; the social problems created by its application, and ways to overcome its adverse effects; and finally, potential avenues for addressing this issue, by examining the tradeoffs inherent to the various approaches to updating the law.
The Familial Code in Morocco is considered today to be one of the most advanced written legal texts in the Arab world, not only because of its content, but also because of its formulation and adoption. What is the best way for dealing this text? Is it possible to say that the temporal distance between the adoption of the code of personal statuses (1957) from a religious basis, and the Familial Code (2004) based on modern sources, reflects what has happened in Moroccan society? How do we move from a national plan to integrate women, which brought the people to the streets in raucous rallies between supporters and opponents, to a familial code that seeks consensus without negating differences?
The legislators sought to make the code compatible with all of Morocco’s international obligations in the field of human rights, and through this confirm what is contained in the preamble of the constitution about the recognition of global human rights. Is it possible to say that Morocco is truly prepared to announce the superiority of the requirements of international law over domestic law? This also raises a number of questions: about the effectiveness of the law, whether it is the end result of social changes, whether social change is required first in the system of law—or if doing so will just lead the people to reject the law, based on the culture of their upbringing and socialization. From all of this, is it possible today to undertake a true appraisal and quantitative analysis derived from use of the law in Moroccan courts? Is it possible to limit some phenomena like the marriage of minors and polygamy? Finally, which approach is suitable for the study of the code? Is it a historical approach, considering the code an event in a specific time from specific causes? Or is it a dialectic approach, viewing the code as an example of social conflict? Or is it a systematic approach, placing the code in a dynamic, social framework with interacting elements in which a shit in one piece influences the whole?