Al-Ahram: A Diwan of contemporary life (469)
In the religious courts
The transition from a traditional to a modern judicial system in Egypt was gradual and often controversial leaving many curious loopholes to be filled. In the 1920s, Al-Ahram introduced a regular column to highlight peculiar cases that showed up before the soon-to-disappear religious courts. Professor Yunan Labib Rizk* reads through
Historians researching Egyptian society during the three-century long Ottoman period could find no better resource than the records of the religious courts. Religious courts, the only judiciary in that period, reflected the predominantly religious character of society at the time and the relatively limited requirements of the prevailing feudal system.
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The traditional setting of religious courts in Egypt would change dramatically after the introduction of modern law codes and court systems
However, the Napoleonic expedition of 1798 heralded the end of the Ottoman era and the reign of Mohamed Ali made that end a reality. The political, economic and social reforms instituted by the "founder of modern Egypt" and his successors created demands that the religious courts were not equipped to handle. Thus judicial reform was a must. The process of restructuring took place over two phases; in 1875, the Mixed Court system was introduced and a predominantly civil character superseded the former religious character of the judiciary.
In her encyclopaedic work The Modern Egyptian Judicial System, Dr Latifa Mohmed Salem examines that transitional phase that lasted from the reign of Mohamed Ali to the reign of his grandson, the Khedive Ismail. During this period, many of the powers of the religious courts were transferred to the administrative councils created by Egypt's new rulers. The motives behind this restructuring were in part political. It helped to further Egyptian autonomy at a time when the courts were still under the supervision of a chief magistrate appointed by the Ottoman sultan. Simultaneously, the centralisation of government they sought to foster could not tolerate two separate and distinct authorities -- a state within a state. There were of course socio- economic reasons as well. As the old feudal system yielded way to the rise of state capitalism and then to the emergence of significant agrarian landowning and urban entrepreneurial classes, there evolved a complex network of socio- economic relations with needs that could no longer be served by the old religious courts. Compounding the growing complexities was the increasing influx of foreigners who were not subject to the jurisdiction of the religious courts.
According to Salem, Mohamed Ali took the first step towards the development of a modern judiciary with the creation of the Justice Assembly, which he entrusted with the drafting and promulgation of laws and regulations. This body also had jurisdiction over "all civil, criminal, military and administrative cases that do not fall under the provisions of Islamic Law".
Subsequent developments were quickly forthcoming. The most significant were the creation of the Council of Justice, with jurisdiction over major suits, and the Provincial Councils, an attempt to extend a centralised legal system to the countryside, under the reign of Abbas I, Mohamed Ali's son and successor. However, it was not until the reign of the Khedive Ismail that a Ministry of Justice was created with the purpose of drafting and promulgating a code of law primarily inspired by the Napoleonic code. Under Ismail, too, the Mixed Courts were introduced to counter the manifold injustices wrought by the consular court system. Then, in the early 1880s, the civil courts were brought under a unified system known as the national judiciary.
The shrinking preserve of the religious courts was confirmed through a number of decrees and laws. Clearing the way was the end of Ottoman suzerainty over Egypt, upon the outbreak of World War I and the declaration of a British protectorate over the country, and the consequent elimination of the chief magistrate, the symbol, if only nominal by that time, of Ottoman control over those courts. In the aftermath of the war, Egyptian legislators got down to the business of reforming their legal system. The first landmark in this regard was the Personal Status Law of 1920. Inspired by the four schools of Sunni jurisprudence, rather than the Hanafi school alone as had been the case under the Ottomans, the new law addressed various concerns pertaining to divorce, separation and loss or disappearance of a spouse.
Latifa Salem observed that the new law met with such an enthusiastic response that the Ministry of Justice was encouraged to proceed with further reforms. These appeared in the form of Law 56 for 1923, whose authors drew on other sources of inspiration in addition to Sunni Muslim jurisprudence. The most important provisions of this law pertained to the minimum age for matrimony and contractual requirements, instituting harsh penalties to deter fraudulent certificates and testimony. Several years later came Law 25 for 1929 which attempted to address the detrimental socio-political effects of divorce and to counter various forms of chicanery surrounding divorce.
In addition to personal status cases, which had never come under the preserve of the national courts, religious courts also contended with various financial concerns governed by Islamic law, such as inheritance and religious trusts and endowments. Not that the line was always so easy to draw, which also brought such issues under the scrutiny of reformers.
It is ironic, in light of the declining importance of the religious courts, that towards the end of the 1920s Al-Ahram introduced a new regular column: "In the religious courts". Perhaps the only explanation for this decision was that the lengthy period of transition from a traditional to a modern society and state produced cases of such a peculiar nature that the press could not help but be drawn to them.
Kishkish Bek, the character invented by the genius of Egyptian comedy, Naguib El-Rihani, was that naïve village mayor who, pockets filled with money at the end of the cotton season, would set sail for Cairo to delight in the thrills of the big city. Once in the nation's capital, he was an easy mark for the denizens of the nightclubs of Rod Al-Farag, who had little difficulty easing the weight in his pockets and perhaps luring him into a convenient marriage with an Egyptian seductress. "In the religious courts" is filled with "Kishkish Beks", although their stories seldom have the humorous ending of Naguib El- Rihani's screen personality.
One column recounts, "On 21 June 1927, Satan and his assistants cheered and applauded the marriage of a Man of Property to one of those young female residents of Cairo known for their joie de vivre. A marriage contract was duly signed and a wedding procession was held according to form. But, after having settled down to a life of conjugal bliss, he observed a procession of men calling upon his wife to exchange jokes and pleasantries. He reprimanded his wife but she would not take heed, until one day he declared that he would divorce her if she did not leave the house at that moment. As she left, the wife resolved to make her husband come true to his word and rid herself of that man who was keeping her from associating with the people she was fond of."
However, the young man had tasted delights with the woman of Cairo that he had never known in his village, and it was not long before he repented. He went to her, pleaded for her to return and begged for her sympathy. "She consented on condition that he sign a document pledging not to intervene between her and her friends, no matter how many they were. He assented." The wife took that paper to a religious court and sued for divorce, condemning her ex-husband to return to his village bereft of his money and honour. Appending a commentary, the column editor expressed his surprise at how easily the gullible young mayor had been beguiled by the "wiles of women, superior to any other cunning".
"In the religious courts" also relates the stories of unsuspecting villagers, in the mode of Kishkish Bek, who fell into the hands of confidence tricksters. Beneath the headline, "A curious tale of the ruses of marriage brokers", the newspaper recounts the story of another village mayor -- "a well- known man of means" -- who came to Cairo to receive the blessings from the Mosque of Al-Hussein. While taking a stroll one day on Al-Sikka Al-Gadida Road, he caught sight of "an attractive, shapely woman" sitting in the office of some real estate brokers. He started to walk back and forth in front of that office until he attracted the attention of the people inside, who invited him in.
After the customary pleasantries, the "man of means" confessed that he wanted to marry that beautiful young woman who had captured his heart. The brokers were delighted and told him that she was indeed unmarried and available. Following brief negotiations, they agreed that the suitor would pay a bride price of LE150, of which LE100 would be paid in advance, and set the date for both the signing of the contract and the wedding ceremony on a single day: 15 January 1929.
That day, the groom appeared with an escort of jubilant relatives whom he had summoned from the countryside. The brokers had brought in a sheikh authorised to conduct marriages and as the contract was signed and witnessed, the young mayor learned the name of his wife for the first time: Halima Ibrahim. Following those ceremonies, the brokers escorted the newlywed to a decrepit hut where they told him to go in and meet his new wife. He entered, but instead of the young woman in the brokers' office he found "a 90-year-old hag, hunchbacked, with an eye missing, right hand paralyzed". The men behind him called out, "Here's your new husband, Halima". Halima answered, "Welcome! A thousand blessings upon us!"
The account continues, "The young man was so shocked that he spent the rest of the night in a near coma. The following morning he fled the room and sped home to his village." But, the village mayor's ordeal did not end there. The real estate brokers pursued him until they obtained the outstanding LE50 of the bride price, after which "the old woman got a divorce from that ill-starred butt of the brokers' practical joke."
A common tendency during periods of transition is to want to cling to the old. For prominent families in particular, the value accorded to lineage and family status in matters of marital arrangements was one of the most recalcitrant traditions, and one that brought the ruin of many marriages.
One of the most notorious cases brought before the religious courts was the suit filed, in 1904, by Sheikh El-Sadat to secure a divorce between his son-in-law, Ali Bek Youssef, and his daughter, Safia. That El-Sadat was the naqib al-ashraf -- the leader of the descendants of the Prophet, an influential religious appointee -- accounted for the political overtones to the case.
A quarter of a century later, on 15 July 1930, Al-Sanbalawin religious court examined a similar case. Sheikh Mohamed Hashem appealed to the court to rule for the divorce of his daughters Soad and Nafisa from their husbands on the grounds that their husbands were not suitable for two women descendant from the Prophet's grandson Al-Hussein. In defence of their marriages, the daughters maintained that their father had constantly turned prospective suitors away until the eldest had reached 40, with her sister not far behind. By that time, they had no other choice but to marry the first comers, who were introduced by their uncle. While Sheikh El-Sadat succeeded in his suit, Sheikh Hashem failed, having been unable to furnish proof of his noble lineage.
A third example of such a case provoked the ire of the "In the religious courts" columnist. Beneath the headline, "Sons of the ashraf do not work," he relates that a son filed suit against his mother on the grounds that she was only giving him a monthly allowance of LE40. This was hardly sufficient for "a poor student who has no savings of his own, who has not had sufficient schooling to qualify him for a livelihood appropriate to a descendant from the Prophet and who comes from a prominent family on both his mother's and his father's side". The columnist could not help but to remark that Ford, Marconi, Edison and others had come from nowhere, but that "they worked with drive and dedication until they became the nobility of the present day."
If by the 1920s women had emerged from the confines of the harem, matchmakers continued to play an important part in bringing together suitable couples in holy matrimony, but not without tragic consequences in many cases. According to the column editor such disasters were the result of the attempt to reconcile two incompatibles, a man whose desire for a perfect wife drives him to a matchmaker or suchlike who is privy to the secrets of people's homes and a woman who has a different notion of an ideal husband.
Another example from the columns explains this. During a visit to a relative in Cairo, an out-of-towner was introduced to a matchmaker who promised to make his matrimonial dreams come true in no time at all. Indeed, within three days she told him that she had found the wife he was looking for -- a beautiful and refined young woman from a good family who was prepared to accept all his conditions.
After the young man paid the matchmaker the customary fee, she went to the family of the girl and informed them of her client's great material and moral standing in his native village. After meeting with the man, the prospective father-in- law was convinced of his probity and financial standing. Since the parents did not want their daughter to leave Cairo to "live among the peasants", the suitor agreed to live with her in her parent's home. Four months into the marriage, the husband saw his wife leave the house wearing nylon stockings. As he was very conservative -- "he wore a beard and a skullcap", as the article put it -- he flew into a rage: "He charged that the stockings were a heresy, uttered the formula for divorce three times and left the house."
Soon afterwards, the case came before a religious court, which ruled that the husband had to pay an appropriate alimony. He refused to pay, or more accurately he was unable to pay, for it came to light that he was in fact destitute rather than the well-off gentleman the midwife had made him out to be. While his ex-wife's family may have gotten some satisfaction from the fact that he was thrown into prison, they and their daughter had paid a heavy price for being taken in by an elderly matchmaker.
Under Islamic Law, in the event of an irrevocable divorce a couple cannot remarry unless the wife has married and then divorced another husband first. That intermediate husband is known as the muhallil, a phenomenon that generated many number of cases for the religious courts and was the subject of a commentary by Ahmed El-Sawi Mohamed, author of the famous column, "Short but significant". The columnist observes, "How often it is that we see a man divorce his wife, take her back, divorce her again irrevocably and then yearn for her return again. But, now he needs a muhallil. So he finds one to live with his former wife as man and wife and then divorce her. Then, the husband marries his wife again, only to divorce her a third time. On and on the story goes. And, after every time he divorces her, he searches about for a feeble old man to act as muhallil while she will settle for nothing but a strapping youth!"
El-Sawi goes on to remark, "How can a man allow himself to exploit the holy institution of marriage in such a despicable manner? Love out of wedlock in the West has greater sanctity than the crude buffoonery that is done in the name of marriage here. There, a man might live with the same woman for 20 or 30 years without a common law or official contract, without a religious ceremony and without witnesses."
If disputes over wills and legacies took up less space than personal status suits in "In the religious courts", they nevertheless reflected an important aspect of how the preoccupations of the time could play themselves out. Beneath the headline, "Son demands mother's inheritance rights 31 years after her death", Al- Ahram relates that, in 1899, a wealthy landowner from Shabin Al-Kom died leaving a large estate. As he had divorced his wife prior to his death, the mayor of the village laid claim to the legacy on the grounds that he was the closest eligible relative of the deceased. The article continues, "Recently a young man from Shatanouf came to Cairo to file a suit in a religious court against that mayor, claiming that his mother should have inherited from his father and that he was now the legitimate heir to that estate." When the mayor produced the divorce certificate to the court, the young man countered that the divorce had taken place while his father was in the throes of his fatal illness and, consequently, not of sound mind. However, as he was unable to offer proof of this claim, the court ruled in favour of the mayor, who received full title to the estate he already possessed.
A second case involved an estate valued at LE100,000, left by a wealthy rural landowner. Because the legacy was contested by so many of the deceased's relatives, the Ministry of Finance intervened to keep the estate intact. Shortly afterwards, however, a certain Abdel-Latif Ahmed appeared on the scene to file a suit against the ministry, claiming he had sole rights to the estate on the grounds that his kinship relation to the deceased superseded the rights of all other claimants.
"When the court asked the claimant to prove his claim, Abdel-Latif produced a string of witnesses who testified on his behalf under oath. Convinced by their depositions, the court ruled in favour of the claimant, giving him sole title to the estate. However, the Ministry of Finance appealed the verdict and when the court re-examined the witnesses it reversed the former ruling because it found that the testimonies were 'false and conflicting.'"
Obviously, hiring witnesses, as Abdel-Latif had done, had become so commonplace that the Ministry of Justice was compelled to issue a statement in which it observed that courts were not taking legal action against perjurers. It reminded members of the judiciary that Article 193 of the Religious Courts Code stipulated that if a judge found that a witness committed perjury, he must report that witness to the competent deputy public prosecutor.
Estate trustees were frequently the appellants in cases filed by mothers of juveniles on the grounds that the trustees were too tightfisted in doling out expenses for their children. "In the religious courts" reports that "the widow of the late Mohamed Bek Esmat" filed suit against Mahmoud Bek Wahbi, provincial director of Beni Soueif, because she only received from him LE60 per month as expenses for raising her children even though their father's estate was valued at LE180,000." Even though her claim was reasonable the probate council ruled against it, to the surprise of the editor of "In the religious courts".
Another not uncommon phenomenon that comes to light in "In the religious courts" is the ability of "highly placed personages" to evade the conditions of the rulings against them. In a commentary on this phenomenon, the columnist noted the curious inability of court officials to locate prominent individuals when it came to serving papers. While such incidents might bring a smile to our face, he remarked, "it is a smile of awestruck befuddlement."
* The author is a professor of history and head of Al-Ahram History Studies Centre.