1 - 7 March 2001
Issue No.523
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Al-Ahram Weekly On-line 1 - 7 March 2001 Issue No.523 |
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One law for all
Fathi Naguib, first deputy president of the Court of Cassation, played a key role in formulating the Personal Status Procedural Law in January 2000, when he was assistant to the minister of justice. A year after its implementation, Hala Sakr and Mohamed Hakim spoke with Naguib on the law's impact
Fathi Naguib
In 2000, the new Personal Status Law was issued. How do you see it a year into its implementation?
I am certainly glad, because what I said back then proved to be true. Some claimed that the law would lead to the breakdown of the Egyptian family. I argued that the Egyptian family was far too strong to be threatened by merely granting women their legitimate right to end the marriage just like men. That right could only strengthen family ties and prevent the many problems resulting from the fact that women could remain captive to an inhuman situation. As we can see, a year later, the Egyptian family did not collapse. The number of Khul' cases [filed] indicates that the mere acquisition of the legal right ended many disputes within the family without having to go to court.How many Khul' cases have been presented in the past year?
The number throughout Egypt over a period of nine months did not exceed 1,300. This is very limited in comparison to the number of divorce suits, which reach about quarter of a million annually. It seems that when the minister of justice recently announced that there were only 40 Khul' cases, he was referring to one month only.However, one should take into consideration that it is premature to give an opinion based on these figures. Many women who had been pursuing legal divorce cases for years immediately shifted to Khul' instead. Yet the situation will stabilise with time.
What cannot be revealed by statistics is that the mere acquisition of the right to Khul' led to the resolution of many problems within the family. Now that a wife can get a divorce through Khul' easily, her husband -- aware that he can no longer force her into a tormenting legal battle that could last forever -- is more willing to negotiate divorce matters.
Do you believe that the right to Khul' has helped decrease the number of cases of divorce for prejudice?
Yes, it has, for the same reason I mentioned before. Previously, when disputes occurred and married life was impossible, husbands would either start a vicious circle of financial bargaining or become blindly obstinate, with no goal but to hurt their wives. With the new law, this is no longer valid because wives have a very strong alternative.In any case, it is too early to consider any figures. We are dealing with a social problem and with the public. Some people may not be fully aware of the law. People need time to take all this in, to see it in practice and get to know the true face of things. Perhaps in five years we can make a comparison with the five years preceding the new law and have a clearer outlook of its impact on our society.
Some claim that the Khul' clause was designed for wealthy women, who can afford to relinquish their financial rights, while poor women cannot.
Poor women only have to forego their right [to compensation], which is originally minimal, to obtain their freedom once and for all. Previously, if they sought divorce for prejudice, they had to spend a lot in different courts in addition to lawyers' fees. What they have to pay now is minimal in comparison to the previous position. This law was designed for all women, rich and poor.Were the goals set by the draft law achieved completely?
They were achieved to a great extent. Legislation can only contribute to the resolution of many of our social problems. Social problems are tackled through a variety of channels -- education, culture, raising the standard of living... -- that intertwine and converge toward their resolution. In some cases, however, legislation can play no role other than opening up the road to the solution. As for divorce and Khul', it was capable of resolving the question to a great extent.Khul' caused much controversy and even disapproval in parliament and among the public. What kind of effort was made to prepare society for a law that is expected to cause fundamental changes in everyone's life?
We started working on this law in 1991 and it was issued in 2000. All through the years, I and many others attended hundreds of seminars and conferences to discuss that particular law. Many forces were on the move working hand in hand to pave the way for the new law.Unfortunately, some people do not follow what is happening around them through the press or on TV, let alone any other media. When the draft law was presented to the People's Assembly, it took them by complete surprise, as is always the case. They had not been following. What can any legislator working on a particular law do, beyond talking about it and explaining it to the public via all possible media? Every aspect of the law was discussed with various people, whether for or against.
Criticism of Khul' is rooted partly in the popular view that regards it as degrading to men because a gap persists between women's legal rights after reform and their social status, which remains inferior. What is your comment?
When we assess the benefit of the law we have to consider the position of those women who were trapped either in a miserable marriage or in the vicious circle of court procedures over the years, before and after the new law. Khul' cannot be assessed through the eyes of those who suffer no problems and yet disapprove of its use by the ones who are suffering. All this results from the culture that regards women as inferior to men and not entitled to the same rights. This same culture blocked the legalisation of Khul' for a long time although it is compatible with Shari'a. Islam is fair and balanced in the rights and duties it stipulates.
SPEAKING LEGALESE: Woman with a divorce lawyer in pre-Revolution times
This means that at times legislation has to lead social change.
Legislation has a decisive role in pushing things forward and spearheading change. It has to launch reform, a few calculated steps ahead but not to the extent of being rejected by society. If legislation merely reflects things as they are, we will merely be hanging on to the status quo.The law was based on an institution [Khul'] from the Islamic heritage that has rarely been used. Why did the law not stipulate directly and clearly that the woman has the right to divorce her husband?
In this issue we must refer to the Shari'a. In this particular law we have completely abided by the Shari'a, which brought about a fair balance in the relation between women and men. The man has the right to unilateral repudiation [talaq]. As for the woman, she can either resort to Khul' if she does not wish to disclose her reasons for wanting a divorce, or to divorce herself from her husband if this was agreed upon in the marriage contract [a stipulation known as the 'Isma].The new law stipulated the right to Khul' and modified the form of the marriage contract and the statute used by the ma'zoun [official responsible for marriage and divorce procedures] to pave the way for a premarital agreement between the parties (see "Bound by the blank" herein).
Why do legislators always cling to the Shari'a when it comes to relations between men and women, despite the secularisation of laws related to many other issues?
There is no contradiction between Shari'a and other laws. Only those who seek to use Islam for political purposes claim that such contradictions exists. All through history, civilisations have never ceased to interact. The same goes for legislation, ever since Roman law was formulated. Islamic jurisprudence is based on Shari'a. It was influenced by and it influenced other doctrines. No one has attempted to study the impact of Islamic jurisprudence in Spain on European legal thought. Today, legal thought is very similar everywhere. When the Committees for the Codification of Shari'a looked into the Civil Law, they could not change anything except for the titles and some terms here and there. The context remained the same.Compliance with Shari'a must continue because it is closely related to people's religious beliefs and it does not contradict any of the international agreements that Egypt has signed.
What challenges did you face as a legislator in the process of issuing this law?
A culture that upholds the supremacy of men and uses religion in that manner. A patriarchal culture based on male chauvinism. That is why no one can imagine that women can be given the right to break their chains. One of our fiercest opponents always resorted to religion in his arguments, although he is not acquainted with the Shari'a. Every step of the way, we replied using the Shari'a. In the end all he had to say was that if women would forgo their financial rights he would agree to Khul'. This is the issue: interests in religious guise.As for true religion, the Islamic Research Academy and the Grand Sheikh of Al-Azhar gave their point of view concerning the Shari'a. They agreed that Khul' was stipulated in the Qur'an and the Sunna. Again, this does not mean that these discussions were easy. In every circle there were always some people who could not imagine that women can go to court for Khul' for no reason. In fact, this 'no reason' is the most appealing thing about Khul'. Some women may be embarrassed and not wish to disclose their reasons. Others may not be willing to hurt their children in any way [by criticising their father]. In Khul' the woman only has to say that she does not wish to live with her husband, without having to criticise him [to justify her wish for a divorce].
Most of the draft law was approved, except for one article that caused fierce opposition: women's right to travel without the husband's consent. Why did this article in particular cause such a fuss?
We live in a society that entrenches male dominance. One of the main manifestations of this dominance is related to travelling. This is why that particular item was so controversial, although the Constitution stipulates that all Egyptians are equal in rights and duties and that freedom of movement is one of the fundamental rights of any citizen, male or female. As for the Shari'a, there were no passports or nationalities in the old days. The Shari'a speaks about the wife's obedience to her husband in return for proper treatment. If despite this she disobeys him in any way, even by going to her parents' house next door without his consent, she is considered recalcitrant. Under Shari'a she loses her right to alimony. But Shari'a does not mention anything about travelling.Things are very simple. If she acts without his consent and he wishes to pursue their marriage, she forfeits her right to material support. If he is too proud to accept her travelling without his consent, then he can divorce her. But why should I deprive any citizen of any of his/her constitutional rights?
How does Khul' apply to Christians?
If husband and wife are of different sects, men have the right to unilateral repudiation just like Muslim men. Hence women have the right to seek divorce or Khul' just like Muslim women.What about the project put before the People's Assembly by MP Youssria Loza, concerning the rights of Christian women?
She talked to me personally and asked me to adopt this project. She also asked for a unified Egyptian family law for both Muslims and Christians, with general rules for all Egyptians, a special section for Muslims only and another for Christians. A unified law to affirm the Egyptian national unity.In 1979, amendments were made to the Personal Status Law which improved the situation of women. They were reversed in the 1980s on the pretext that they were unconstitutional. Is this law here to stay?
This is not the case with the new law. However there are no definite guarantees other than spreading public awareness, which is the role of the media. This law is closely related to the degree of cultural acceptance. People should be made to realise that this law is applicable. Politically conscious women should pass the message on to others in support of the current changes.A Personal Status Law should be comprehensive. What of Egyptian women married to foreigners? Why is their right to pass their nationality to their children not included in this law?
The issue of nationality is part of the Citizenship Law. The law we are discussing is a Personal Status Procedural Law. It was not possible to insert an article from a completely different law.What is your next goal? What public role would you take up irrespective of official post?
I would love to formulate a unified law for the Egyptian family. One law for all Egyptians: Muslims and Christians alike.
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