Monday,23 July, 2018
Current issue | Issue 1359, (7 - 13 September 2017)
Monday,23 July, 2018
Issue 1359, (7 - 13 September 2017)

Ahram Weekly

International impact of Tunisian reforms

Proposed reforms to the Tunisian personal status laws have had impacts far outside the country, writes Heba Sewilam

Defenders of the revised Tunisian personal status laws proposed by the country’s president last month have been arguing that the issue concerns Tunisian law alone.

Their defence has come in response to criticisms of the reforms from Al-Azhar in Cairo and various Islamic legal scholars. These have criticised the Tunisian proposals to equalise the inheritance of men and women and recognise the marriage of a Muslim woman to a non-Muslim man, saying that Islamic Sharia Law unambiguously stipulates a double share of inheritance for men and forbids the marriage of a Muslim woman to a non-Muslim man.

As a result, the Tunisian reforms are not simply a matter for Tunisian national law, since they have stirred up criticisms worldwide because they target rulings that come from an authentic source (they are mentioned in the Quran) and have a wider significance having a clear meaning in religious law. For the ulama, or Islamic scholars, a ruling that has authenticity in terms of source and meaning is untouchable. Anyone denying its religious standing can be counted a kafir (unbeliever) and may even deserve capital punishment if refusing to repent.

The battle against the Tunisian reforms on inheritance and marriage thus has a politico-cultural dimension, and for those against the reforms it means maintaining a pure Muslim identity clear of secularist impurities inspired by patriotic sentiments of nationalism or humanistic claims of globalisation.

Sharia revivalists, whether Salafis or Muslim Brothers, have been counting on the survival of this pure identity to give meaning to their calls for the return to an Islamic polity in the form of a caliphate and the enforcement of other Sharia-compliant laws such as Islamic criminal law with its controversial corporal punishments. These goals would be more difficult to achieve if Sharia lost its grip on family law.

Sharia rulings in personal status matters intensify the sense of belonging to confessional communities while weakening national identity. Egypt, a Muslim-majority country with the biggest Christian population in the Middle East, is a perfect example of Sharia’s confessional divisions. Sharia rules over Egyptian family law but recognises the confessional law of other religions on issues of marriage, divorce and inheritance. Although this freedom of religion may seem to encourage legal pluralism, in practice the law confuses law professionals and laymen alike.

Egyptian family law recognises Islamic, Christian and Talmudic religious laws, ruling over three confessional communities: Muslims, Christians and Jews, respectively. Other religions such as Bahaism are unrecognised and hence subject to the Sharia. The outcome is inequality before the law. Whereas an Egyptian Muslim man may unilaterally divorce his wife and engage in polygamous marriage, an Egyptian Orthodox Christian man cannot divorce his wife except on grounds of impotence or adultery. Meanwhile, an Egyptian Catholic man is forbidden by his religion to divorce.

Politically, the disparity in Egyptian family law has undermined the right to state protection. The legislature tends to allocate rights not to individual citizens but to confessional communities. In other words, the law decides on the rights and duties of an Egyptian as a Muslim within his religious community or a Christian within his Coptic one. This leaves individuals at the mercy of clergymen, who decide for the legislature on family law issues.

The outcome may cause injustices, at least for secularist Egyptians. For Muslims, married women have a hard time obtaining a divorce whereas their husbands have the right to unilateral divorce. Women are required to file for divorce before a court of law. The process may take years, and the outcome is not guaranteed.

In 2000, a legal reform introduced khul divorce which strips women of their material rights in return for a short legal process and a guaranteed decision. It allows a woman to obtain a divorce upon legal petition on condition that she renounces financial claims and entitlements to the matrimonial home. 

For Christian Copts, divorce was permitted for one of the 15 reasons recognised by the old millet system of religious confessions before it was abolished in 1955. Former Coptic Pope Shenouda, however, narrowed the reasons down to two: impotence and adultery. Today, the Coptic Church does not recognise divorce for reasons other than these two and consequently remarriage.

In 2010, Coptic Christians resorted to the Egyptian courts demanding equality before the law with their Muslim compatriots on marriage and divorce. A court ruling ordered the Coptic Church to allow divorced Copts to remarry in church, but Pope Shenouda refused to recognise it.

Tunisia was the birthplace of the Arab Spring revolutions in 2011 that soon spread to Egypt, Libya, Yemen and Syria, leaving all these countries in one form or another of chaos. The recurrence of this phenomenon, this time in the form of the dissemination of anti-Sharia legal reforms, is likely to induce fear among the ulama and Islamists.

The writer has a PhD in Islamic studies from the University of California, Los Angeles.

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