Al-Ahram Weekly 13 - 19 January 2000 Issue No. 464
Published in Cairo by AL-AHRAM established in 1875

One step forward, a hundred to go The draft law that aims to speed up personal status litigation is expected to be discussed in parliament next week, but it has already opened up a Pandora's box of power struggles, reports Mariz Tadros ALL TOMORROW'S CHANGES: Modifying the Personal Status law could make matters easier for women trapped in abusive marriages, but if life is to improve for girls like Rima, far greater changes will be necessary. Economic dependency and social prejudice will make it difficult for many women to take advantage of any benefits the amendments offer. Were society and schooling to emphasise principles of equality, perhaps legal reform could be dispensed with altogether photo: Khaled Goweili

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When Mona's husband refused to divorce her, she stopped trying to convince him and filed for divorce. More than a year later, the judge granted her a divorce in the Court of First Instance. Her husband appealed the verdict. The judge refused to overturn the verdict. Three years passed; Mona remarried and had a child. But her former husband would not give up, although he knew that Mona had remarried and three years had passed since they had divorced. He filed a new appeal. Judge no 3 in the Court of Appeals decided to rule in his favour and revoke the divorce. What does this mean? Basically, Mona has to be divorced from her new husband, taken away from her new family and returned to her former husband. Of course, if he wants to be really nasty, he could immediately sue her for bigamy. It has happened to some women.

If the draft procedural Personal Status Law passes through parliament next week, a husband will have 90 days to appeal a divorce ruling, after which his former wife will be free to remarry. But the fact that a woman who files for divorce is granted a revocable divorce, allowing the husband to appeal for its overturn, is enshrined in the substantive Personal Status Law, which currently is not being considered for reform.

Abdel-Rahman Farag Mohsen, head of the Constitutional and Shari'a Affairs Committee, says that if the draft procedural Personal Status Law is passed, it will guarantee women their full legal rights and redress any imbalance. "The draft law is fair. It is a civilised step forward and it works toward the resolution of many social problems," he told Al-Ahram Weekly.

The draft law passed by a majority vote in the Shura Council after many sessions of debate, dispute and distraction. One would think that the changes proposed in the draft law would be so groundbreaking as to merit the commotion -- but in fact, as Mohsen revealed, the proposed changes are minor. "The purpose of this law, we must not forget, is to speed up the litigation process, and to simplify and compress the clauses to make it easier for the judge. The original 600 clauses have been compressed into 81."

The Shura discussions as well as the opinions of some MPs reflect a desperate desire to hang on to the status quo at all costs. Clauses that sought to redress in part the imbalance between men and women before the law were interpreted as a conspiracy to undermine men's "God-given" right to supremacy. Some statements bordered on misogyny, others on ignorance. No less than the head of the Youth Committee at the Shura Council, Abdel-Rehim El-Ghoul, revealed an astounding level of unawareness when he asked rhetorically: "How many women are harmed by the current law? 200? 500? Do we need new legislation for them?" His statement, mocked the weekly magazine Al-Musawwar (31 December 1999), was an "embarrassment for the whole of Egypt, [especially] when statistics indicate that a quarter of a million women visit the Personal Status courts annually."

According to Mohsen, however, the Shura Council proposed only two significant changes. The first was to Article 23, which originally stipulated that if a husband denies his wife the right to travel abroad, she may go to court, with the judge ruling on the dispute. Concurrently, it empowered the judge to prevent a man from travelling if he has not paid alimony or if his departure would have negative implications on the family. The Shura Council suggested that when a dispute occurs, the matter be tried by the judge of urgent cases. Many opponents of this modification consider that taking away men's right to prohibit their wives from travelling an outright violation of the Qur'anic verse according to which men are the guardians of women (although the application of this principle violates the Egyptian Constitution, and the existing legislation on the matter is not a law but a ministerial decree).

Fierce opposition was also mounted against Article 31, which recognises the divorce appeal made by a woman who married the Urfi way (a marriage not registered at the Public Notary Office), and which was partly modified. The Shura decided that in some cases of Urfi marriage a divorce will be granted, while in others the contract will be annulled because the marriage was in violation of the Shari'a.

The Shari'a does not require registration of a marriage at the Public Notary Office, but it does stipulate certain conditions, such as the presence of two reliable witnesses and open announcement of the marriage. The Shura accepted Urfi marriages that are compatible with the principles of Shari'a, even if they are not officially documented, but Urfi marriage as is done by university students will only be granted an annulment of the marriage contract, because of the unreliability of the witnesses, and the secrecy of the marriage.

In the many impassioned speeches made against Urfi marriages, all kinds of arguments were made. The gist of it was that women who choose to marry the Urfi way should be punished, otherwise the law would be promoting promiscuity and violating religious precepts. Ironically, the court will not grant a woman married the Urfi way a divorce because it does not recognise the marriage, and yet if she remarries, the first husband can report the woman to the General Prosecutor for bigamy or adultery. Women remain in a situation where they are tied up all their lives.

The proposed changes were not received with elation by women activists either. Hoda Badran, head of the Alliance of Arab Women, suggests that "if they accept the Urfi divorce in principle, they should consequently be granting the woman her full rights." Under Article 23 of the draft, women who do not have children are not entitled to any financial rights when they are granted divorce. Badran also had objections about the way in which the government has packaged Article 23 as if it were the panacea to all Urfi problems, especially when the factors leading to Urfi marriages are not dealt with -- namely, that young people cannot hope to get married officially and with their parents' knowledge when their prospects of finding jobs, a good apartment and a decent salary are so low. "Legal intervention is not enough, especially since it will not deter Urfi marriages," insists Badran. Fathi Naguib, adviser to the Minister of Justice, argued that divorce in court for women who married the Urfi way in fact discourages the practice because it will convince a woman who remarries to do it the official way.

The draft does include positive gains for women, notes Badran, such as the establishment of a special family court to look into matters pertaining to Personal Status Law so that women do not have to go from one court to another when they file for divorce. She also welcomes the idea of having the prosecutor general play an active role in trying to resolve conflicts between couples and in cases where the determination of alimony is delayed by a man's attempt to hide the size of his income. Enforcing punitive measures on men who do not pay their alimony is an important addition, as is the dispensation of alimony via the Nasser Bank.

"We are a little satisfied, but not completely. We hope this is the first step toward changing the substantive law, where many of the problems lie," Badran declares.

Yet even with what many consider to be the limited reform proposed in the draft law, ideological battles are already in full swing. The main battle is not one between secular feminists/human rights activists and fundamentalists, but between those who have conflicting interpretations of the Shari'a. A perfect example is the dispute over granting women the right to Khul'. Article 26 of the draft law gives a woman the right to a divorce with or without her husband's consent if she renounces all her financial rights, including Mut'a, Mu'akhar and Mahr. It excludes the need to renounce child support. Mohsen reveals that the principle of Khul' is not a new addition to the existing law: "It was always there, but it just was not legally organised properly." Perhaps more common was Ibraa, whereby a woman could obtain a divorce before the Ma'zoun with her husband's consent, if she renounces all her financial rights.

Many Islamic scholars agree that a woman's right to Khul' is in compliance with the Shari'a, and with the prophetic Hadith prompted by Thabet Ibn Qays's wife, who told the Prophet that she could find no flaw in her husband, but could not stand living with him. The Prophet told her to return the garden Ibn Qays had given her, and told the latter to divorce her.

Khul' is being contested by some Islamic scholars and MPs, however, who argue that the Prophet did not give it as an order, but a suggestion. They also point out there were only two cases of Khul' recorded in Islamic history, and these are exceptions rather than the rule.

Zeinab Radwan, dean of Dar Al-Ulum (the Faculty of Arabic and Islamic Studies) at Cairo University, Fayoum branch, believes that opposition to more liberal legal codes lies in the misinterpretation of the Shari'a, which stems of ignorance on the part of some Islamic scholars. "Many scholars do not understand the religion. They are illiterate where religious issues are concerned. But learned ones like the Sheikh of Al-Azhar have expressed their consent to the law."

She is especially uncompromising with those who have rejected the principle of Khul' on the premise that it runs counter to the Shari'a. It is just the opposite, she argues: "Just like Islam gave the man the right to divorce, he gave the woman the right to Khul', in which she returns the Mahr and is granted an immediate divorce. Those who argue that this is not a right in Islam, or that it is based on the husband's consent, are simply ignorant of the Shari'a, and the rights it secures for women. We live in a time of Jahiliya [ignorance]; women's rights in Islam are denied."

Religious support for Khul' does not just stem from the Hadith, but from the Qur'an itself, contends Radwan. She quotes Surat Al-Baqara (verses 229-231): "Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) God. And if you fear that they may not be able to keep the limits of God, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) God. Transgress them not. For whoso transgresseth God's limits: such as wrong-doers."

But even if we go back to the Hadith, insists Radwan, the woman returned the Mahr, but did not have to give up all her financial rights as is required in Article 26 of the draft law. In the Hadith, she explains, the Prophet immediately ordered Ibn Qays to divorce his wife after she had returned the garden to him. "She did not have to return anything else to him. The reason why she returns the Mahr is that it becomes her personal property and does not go towards contributing to household expenditure."

Another discrepancy is that in the Hadith the woman was divorced upon returning the Mahr, but in the draft law, she has to wait for 60 days. "She should be immediately divorced if she wishes, rather than have to wait an additional day," insists Radwan.

So why the discrepancy between the draft law and the Hadith?

Radwan believes it is to mollify men. "The reason they put these 60 days is so they make the transition for men easier, because they believe they are losing their God-given supremacy as the sole partners who have the sole right to divorce." She argues that there has been a "gross misinterpretation of the idea that 'men are the protectors of women' to mean supremacy when it doesn't: Al-Rijal Qawwamoun 'Alal-Nisaa means they have a responsibility to take care of them, it does not give them the right to domination."

She points to other instances where the draft law falls short of implementing the Shari'a: "The legal requirement that women should have to go to court to claim divorce on the basis of harm is wrong, and has no religious basis. Men should also not have the right to deny women divorce, since it is not acceptable in Islam that women be retained against their will."

Radwan is not completely satisfied with the compromise whereby a woman still has to get the judge's permission to travel, if her husband prohibits her: "The state should keep out of it. It does not have the right to allow a person to travel or not. It is intrusion in people's personal affairs. The right to travel is like the right to education and the right to work, it is a constitutional right, and a right guaranteed in Islam"

A question on what Radwan thinks of human rights conventions that grant a woman the right to divorce without giving up any of her rights, and how they compare with the current situation was abruptly cut short: "Human rights conventions are not the term of reference here, the Islamic Shari'a is, so let us not get off the subject."

But feminist activist Magda Adli believes that human rights conventions like the CEDAW (the UN Convention on the Elimination of all Forms of Discrimination against Women) have been the missing term of reference in this debate. She proposes that a unified civil law on personal status for all, irrespective of religion, should be in place -- and that the Shari'a should not be the only term of reference. Her view, however, is supported by a tiny minority in Egypt.

While Adli believes the draft law is a step in the right direction, she maintains that it is impossible to talk about real advancement without changing the substantive law: "This is not to say that speeding up the litigation process is not a step forward, but we cannot use it as a means to cover up addressing the roots of the problem."

Adli contends that despite the rhetoric about protecting mothers' and children's rights, the procedural law cannot stamp out or overcome the biases in the substantive law: "You just have to look at the way it is phrased. Even where women's financial rights are guaranteed, they are proposed in such a humiliating way. In reference to child allowance for example, they talk about 'a fee for caring for the child' and 'a fee for breast feeding babies'. This shows no respect for motherhood -- as if a mother can be substituted by a wet nurse who gets paid."

Adli is of the opinion that the draft law is unlikely to be a poor woman's way out of marital misery. "For poor women, divorce is a last resort, when life becomes truly unbearable. They are likely to have endured much pain and humiliation before seeking a divorce, because at the end of the day, they cannot just pack up and go back to their family home, knowing that they will be seen and treated as a financial burden," she points out, adding that in light of such circumstances, buying her way out of divorce as enshrined in the principle of Khul' is not an option.

If poor women cannot afford Khul', they will have to go to court to get a divorce. To be eligible for a divorce under one of the six acceptable criteria is far from easy, and a woman's application may be denied. "At the end of the day, the draft law is a 'rich woman's law'. Let us assume that the poor woman seeks a divorce under the eligible criteria, and the rich woman seeks Khul'. The former will take a year to prove that she has been harmed and, if she is lucky enough to be granted a divorce in the first place, that divorce will be revocable. The latter will be granted an irrevocable divorce within a maximum period of two months."

If there is a real will to alleviate the humiliation and trauma experienced by women who no longer want to stay married, then divorce should be granted without having to give reasons and without foregoing the most basic financial rights, suggests Adli. Apart from opening the door to all kinds of blackmail, she notes, Khul' poses some grave practical problems. Returning the Mahr to the husband is one of them. "Due to the high cost of living, many poor and even middle class households spend the Mahr on furnishing their new home. They simply cannot afford to put it aside like something to be preserved in the Egyptian Museum," she chuckles.

Adli believes that the current discourse on the law is highly reactionary, bent on finding any pretext under which to ensure that women remain in the inferior position. Her position is shared by many women NGO workers and human rights activists, who believe that the socio-cultural atmosphere is anything but encouraging where women's equality is concerned.

"I am flabbergasted by female reporters who suggest that women's right to Khul' might be abused by women on the basis that they are emotional beings who may act irrationally," says an angered Badran, who wonders whether we will ever get away from distorted gender constructions of men as strong rational beings, and women as emotional weak creatures. The social atmosphere, many feminist activists observe, is more conservative than it was before, and the discourse is very much centred around domination and subservience. "Discrimination and prejudice hit us right in the face," gasps Badran. She sees fundamentalist thinking as partly to blame.

Nevertheless, the hysteria over the dethroning of the male patriarch by the draft law has manifested itself not only in opposition but in some national newspapers as well. A sample includes: "The overthrow of the Egyptian family hierarchy: men declare Jihad against the new draft Personal Status law". A woman being interviewed about what she thinks of women who want to travel against their husbands' will comments: "Excuse me, I do not know about the parliament, but I am principled and my husband is my lord and crown". Other headlines include "alimony payment or slavery", "the breakdown of family law"...

The argument that granting women the right to Khul' may lead to social chaos as the divorce rate shoots up has also been put forward. Consequently, officials supporting the draft law have been very careful to note that there are still enough constraints to discourage divorce (although men's repudiation right is preserved). When Mohsen was asked what he thought of some feminist activists' demand that women be granted the right to divorce without giving reasons, like men, he was outraged. "The Shari'a has put constraints on divorce -- the exception is the Khul'. There is no reason to change it. There must be restrictions, otherwise it would be anarchy."

The need to preserve the family has also been cited. One man suggests that the only way to fight the culturally devastating influences of globalisation upon Arab/Islamic society is to strengthen the family.

Proponents of the draft have been careful not to present it as seeking to emancipate women, out of fear of creating a backlash. The memory of the social chaos that followed "Jihan's Law" is still fresh in the minds of many. A campaign was initiated in 1979 to change the personal status law, led by former first lady Jihan El-Sadat and supported by many feminists. The proposed amendments included a woman's right to know if her husband takes another wife, keep the family home after divorce (regardless of child custody), and appeal for divorce on the basis of her husband taking another wife.

The proposed law outraged fundamentalists and conservatives, who claimed that it violated the Shari'a. Others objected that it was unconstitutional because the parliament did not approve it before it was passed. Lawsuits were filed, and the law was finally rejected in 1985. Another version, drained of some of the most important rights, was passed the same year: it still made it necessary for the first wife to be informed, but denied her the right to the family home in case of divorce. "This time around, the government has been careful to take the reaction of conservative elements into consideration, so as not to antagonise them," notes Adli.

Ultimately, the question is not whether the draft law complies with the Shari'a, it is whose interpretation has the greater political clout. Personal Status Laws in other Muslim countries show that the Shari'a never hindered equality. For example, in Morocco, Libya, Syria and Tunisia, husbands do not have the right of repudiation, and divorce takes place only before a judge. In Tunisia, polygamy is prohibited by law, while in Libya, Morocco, and Syria, it must be approved by the court.

Whether the Egyptian government will move on to reform the substantive law or whether the draft procedural law is a measure taken to appease reform advocates without causing a commotion is an open question. Some think that, in light of the prevailing view of gender equality, women will be lucky if the draft law as it stands is passed by the People's Assembly next week.

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Sources:

Azza Karam: Women, Islamisms and the State: Contemporary Feminisms in Egypt. Macmillan Press, 1998

Baheieddin Toubia and Abdel-Latif Hijab: Arab Women: A Profile of Diversity and Change

The Meaning of the Glorious Qur'an, interpretation by Mohamed Marmaduke Pickthall, Dar Al-Kitab Al-Misri, 1981

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