Читать книгу Gender Justice and Legal Reform in Egypt - Mulki al-Sharmani - Страница 9
ОглавлениеIn 1975, I went with my father to a movie theater in Cairo to see the Egyptian movie Uridu hallan (I Want a Solution). It was my first time, a ten-year-old, to go to a movie theater and to be exposed to the message of this classic movie. The film—which features the renowned Egyptian actress the late Faten Hamama—has often been described as a dramatic and poignant artistic depiction of the gender-based legal inequalities that Egyptian women suffer in marriage and divorce (Elsadda 2011; Sonneveld 2012). The story of the protagonist of the film, Duriya, and her painful and unsuccessful pursuit of a fault-based judicial divorce from a violent and cheating husband highlight several key issues in the relationship between gender justice and family law. The film, first and foremost, raises the issue of unequal divorce rights. While Duriya’s husband, if he so wished, could divorce her unilaterally and extrajudicially, Duriya’s only option for a way out of an abusive marriage (since her husband declined to divorce her) was a long and arduous legal process in which she faced insurmountable obstacles to substantiate spousal harm.
The movie also highlights the challenges that women encounter due to gaps and loopholes in both the written codes and the legal process, which marginalize female disputants. Some of the featured problems in the movie include the inability of wives to make claims to the conjugal home when their husbands divorce them unilaterally and the ensuing injustice to women, particularly elderly and childless wives. Another problem depicted in the movie is men’s abuse of the principle of ‘wifely obedience’ as they petition obedience lawsuits against their wives in order to avoid paying spousal maintenance or to derail their wives’ pursuit of divorce.
The complex relationship between state-codified family law and religion is another message alluded to in the movie. Duriya asks the minister of justice, in a meeting arranged by her influential journalist friend, why the family law (at the time) does not give women the right to khul‘ divorce. This no-fault divorce, which comes from fiqh (Islamic jurisprudence), is initiated by women and is secured without the need to prove any spousal harm, provided that wives relinquish some (or all) of their financial rights (Arabi 2001; Tucker 2008). Duriya raises the question of the divergence between the state family law and Islamic jurisprudence because Egyptian personal status laws are drawn from Islamic jurisprudence—albeit through a modern process of codification resulting in mixed and uneven consequences. The legal model of spousal roles, encapsulated in the fiqh concept of a husband’s qiwamah (guardianship and authority) over the wife, has been the framework under which unequal divorce rights, unequal parental rights, and polygyny have been sanctioned in classical jurisprudence as well as in many modern family laws (Mir-Hosseini 2015). The principle of ‘wifely obedience’ itself, which is drawn from Islamic jurisprudence, also reflects the hierarchical model of spousal roles and rights: spousal maintenance in exchange for wifely obedience. With codification, wifely obedience, furthermore, became physically enforceable by the state’s machinery, as husbands who won obedience cases resorted to the power of law enforcement officials to force their wives to return to the conjugal home, until this measure was abolished in 1967. In fact, in the movie, after Duriya’s husband wins an obedience case against her, she runs away from the police who have come to take her by force to the conjugal home. Thus, while wifely obedience is derived from Islamic jurisprudence, the forced return of wives to the conjugal home was the result of the state’s appropriation and transformation of fiqh rulings.
At the end of the movie, viewers are left with the sense that women, whether poor or from privileged backgrounds, are marginalized citizens with limited agency, precisely because of their subordinate legal position in the family domain. Duriya may be a well-educated woman with financial and family resources, but her life is still in limbo and she is unable to make any decisions to move forward as she is locked in an unwanted marriage because of the state’s family law. Similarly, poor wives, as depicted in the courtroom scenes in the movie, can do very little to protect themselves from the economic hardships resulting from husbands divorcing them at whim and often without giving them their financial dues.
Uridu hallan, though better known, is not the only film that tackled the problem of gender-based inequalities in Egyptian family law. In the 1980s, the television film Asfa, arfud al-talaq (I Am Sorry, I Refuse the Divorce) was aired. The screenplay was written by the actress and scriptwriter Nadia Rashad, known for her socially conscious and gender-sensitive work.1 Rashad also plays the role of a lawyer and a close friend of the protagonist in the film, the latter played by the popular actress Mervat Amin. The film focuses on the problem of men’s right to unilateral divorce, sanctioned by state laws as well as dominant religious discourse, through the story of a devoted stay-at-home wife and mother who has been happily married for ten years to a successful doctor (played in the movie by the actor Hussein Fahmy). The wife’s world is shattered when her husband divorces her unilaterally after he became romantically attached to another woman. It is not only the betrayal of her husband that causes the protagonist great distress, but also, and particularly, the injustice of her husband’s unchecked right to end their marriage unilaterally and extrajudicially. She solicits the help of her best friend who is a lawyer to bring an unusual court case against her husband, contesting his right to unilateral repudiation.
At the other end of the spectrum of movies about family law and gender rights, there have also been a number of well-known films that questioned some of the gender-sensitive reforms that were introduced in the country’s family law over the last four decades. For example, and again in the 1980s, the film al-Shaqa min haq al-zawja (The Apartment is the Wife’s Right) was a satire on the newly introduced law at the time, which gave divorced custodial mothers the right to reside in the conjugal home with their children. Notably, the law was revoked by the Supreme Constitutional Court in 1985. And after 2000, a series of films that satirized the new and contested khul‘ law were made. The anthropologist Nadia Sonneveld, in an insightful study of khul‘ in Egypt, examines some of these movies and their depictions of societal resistance and contestations of the law and their underlying gendered assumptions about marital roles and women’s moral character (Sonneveld 2012). All of the above movies, as artistic expressions of the public discourse in the country, underscore that family law has been the main domain where Egyptian women confront inequalities and where justice has eluded them. Family law has also been the site where women’s rights advocates and diverse state and non-state actors have been pursuing reform of gender rights.
The focus of this book, similarly, is on Egyptian Muslim family law and gender justice. It is a modest effort to engage with three dimensions of the relationship between the reform of family law and the pursuit of gender justice. Adopting Joan Scott’s definition, I understand gender to be “not simply . . . how men and women are being defined in relation to one another, but also . . . what visions of social order are being contested, built upon, resisted, and defended in terms of those male/female definitions” (Scott 2013: 74). In the context of researching family law, the question of gender is layered. It is related to (but also goes beyond) the legal identities that are constructed for men and women in the context of marriage (for example, male providers/guardians versus female dependents) and the assumed rights and responsibilities that go with these identities. It is also the question of systems of meaning in which family law intersects with prevalent socioreligious discourses to create, reproduce, or destabilize social relations (and their power dynamics) in which women and men are situated.
The first dimension of the relationship between family law and gender justice which this book will tackle is the process of legal reform and how it shapes the written texts of new laws and their subsequent implementation. The issue of process raises a number of significant questions: Who are the actors advocating for particular reforms? What are the goals driving their reform efforts? How do they understand these reforms and their purposes? How do their reform strategies play out? For instance, what happens when, in the pursuit of legal reforms, alliances are made between actors with divergent goals and different understandings of the underlying philosophy and purposes of the proposed new laws? What are the ramifications for the goals of gender justice?
The second dimension of this relationship is concerned with women’s legal agency and experiences of the legal process. The questions that come to the fore in this aspect are: How do women use new laws? How do they experience the legal process? What opportunities and challenges do the legal reforms create for women with regard to legal options, the ability to exercise a particular option, and the ability to resolve disputes or make claims to particular rights?
Thirdly, the book explores the role and impact of legal reforms outside the courtroom. How do family law and its reform impact marriage norms and practices? How do they impact the lived realities of spousal roles? What options or challenges do the reforms create for women as they navigate gender relations as single or married women? The book will examine these three dimensions, focusing on the period from 2000 to 2010. This was an important period that ushered in significant legal gains for women. I focus on two of the reforms that were introduced at the time: the new family courts that were established in 2004 and the khul‘ law that was legislated in 2000.
Reforming Egyptian Personal Status Laws: 2000–2010
The first five years of the new millennium in Egypt witnessed a vibrant period of legal reform in the family domain with important but also mixed ramifications (and challenges) for women’s rights. On January 26, 2000, the Egyptian Parliament passed the Personal Status Law (hereafter PSL) No. 1 of 2000. The new code, which was titled “The Law for Reorganization of Certain Terms and Procedures of Litigation in Personal Status Matters,” serves primarily to regulate and facilitate the litigation process in family disputes. Unlike the several hundred clauses of previous procedural laws that regulated the legal process in family dispute cases, PSL No. 1 consists of a mere seventy-nine articles.2 This new and concise procedural law was to make efficient the proceedings of family law cases, which would accordingly cut down on the amount of time and resources that disputants, most of whom tend to be women, spend on litigation.
But the most significant, and contested, article in this procedural law is Article 20, which grants women the right to petition for khul‘ divorce. In this type of divorce, female disputants do not need to claim or substantiate to the court any fault-based grounds for their divorce petition and their husbands’ consent is not required, provided that they forfeit their right to the mahr (dower) and all post-divorce financial rights. The khul‘ article also stipulates a period of ninety-day arbitration during which reconciliation is attempted by court-appointed arbiters before the court judgment is issued. The khul‘ article was met with a lot of opposition from different sectors of the society. Opponents of the law argued that it would be abused by irrational and morally weak wives. It was also argued that the new law contravened Islamic sharia since it did not require the husband’s consent, unlike the case in the main schools of Islamic jurisprudence where khul‘ is framed as a divorce initiated by the wife but only obtained through negotiation with the husband (Fawzy 2004; Singerman 2005; Sonneveld 2012; Tucker 2008). PSL No. 1 also granted women another substantive and controversial right: Article 17 gives women who are in ‘urfi marriages, which are unregistered marriages, the right to file for divorce. The idea behind this article is to give women a way out of unregistered marriages that are not recognized by law, and thus women in such marriages lack legal rights such as spousal maintenance, alimony, and inheritance.
Then in March 2004, PSL No. 10 was passed, which introduced the new family courts. The idea behind the new courts is to enable disputants to resolve their conflicts through legal mechanisms that are non-adversarial, family-friendly, inexpensive, and efficient. In particular, the new courts system had a number of distinct features with the goal of putting in place alternative mechanisms of dispute resolution. For instance, before disputants can begin the litigation process, they are obligated to go through court mediation, undertaken by three settlement specialists (akhissa’iyin al-taswiya) who are trained in social work/sociology, psychology, and law respectively. In addition, the lawsuits are adjudicated by a panel of three judges who are specialized in family law and who are assisted by two court experts (khubara’ al-mahkama). The latter are trained in social work/sociology and psychology, and one of these experts has to be a woman. Another important feature of the new legal system is the abolishment of adjudication on the level of the Court of Cassation, thus reducing the amount of time and expenses spent in litigation.
The new family courts, despite being a procedural reform, were to have significant (but also mixed) implications for women’s access to justice. On the one hand, the new courts, with their mediation-based mechanisms of dispute resolution, were hailed as an important reform that would greatly facilitate women’s pursuit of legal claims, particularly in maintenance and divorce cases, which often cost disputants a lot of time and resources.3 On the other hand, the role of the new courts system was also depicted in the public discourse as salvaging marriages and ensuring the stability of families through its mediation-based mechanisms.4 It was this latter notion that made some nongovernmental women’s rights organizations wary at the time, particularly since the substantive personal status laws that were being implemented in these courts remained premised on gender hierarchies and unequal spousal and parental rights.
In the same year, a third new law was passed, PSL No. 11, which established the Family Security Fund. The function of this state fund is to dispense court-ordered spousal and child maintenance to ‘vulnerable’ plaintiffs, and the relevant state institutions undertake the task of collecting the money from husbands/fathers. Lastly, in 2005, PSL No. 4 was promulgated. This law grants divorced women the right to the custody of their children until they reach the age of fifteen.
In addition, in August of 2000, the Ministry of Justice introduced a new marriage contract with a marked blank space where the spouses could insert agreed-upon stipulations. This contract was a much watered-down version of the original draft that was proposed by a coalition of women’s rights activists, legal figures, and government officials. The earlier version listed nine explicit stipulations to be read by the state notary (ma’zun) officiating the marriage to the two parties as possible conditions that they could agree on and include in the contract. The stipulations included, among other things, restricting the husband’s right to polygamy, protecting the wife’s right to work and travel, negotiating for delegated divorce, and securing the wife’s right to the conjugal home and furniture. But after a strong opposition from the country’s main religious establishment, al-Azhar, the listed stipulations were removed from the contract (Shaham 1999; Singerman 2005). Nonetheless, the new contract still kept the idea of inserting stipulations alive by including this marked blank space where conditions negotiated by the couple could be inserted in the contract.
PSLs Nos. 1, 10, and 11 are closely interrelated, and in fact they paved the way for one another. Article 10 in PSL No. 1 stipulates that all personal status cases will be reviewed by ‘first-instance’ family courts. In other words, this article calls for a unified legal system for PSL cases, which later evolved into the new courts system and PSL No. 10. In addition, Article 72 in PSL No. 1 stipulates that Nasser Bank, a government-owned fund, will implement court judgments in alimony and maintenance cases. Again, this new system was later developed into a full-fledged Family Security Fund through PSL No. 11. The interconnectedness among the new laws was the result of interrelated advocacy processes, which were undertaken by a coalition of diverse actors (Al-Sharmani 2009, 2013a; Singerman 2005; Sonneveld 2012). Interestingly, all the reforms that were introduced in these first five years of the new millennium were procedural, except for PSL No. 4. This point draws our attention to the choice of reform strategy that was made by some of the key actors seeking to address gender-based inequalities through these new laws.
Gender Justice and Navigating Egyptian Family Law
This book is an inquiry into some of the aspects of the legal reforms focusing on the new family courts and khul‘. While the advocacy and contestations around khul‘ had been well researched (Arabi 2001; Fawzy 2004; Singerman 2005; Sonneveld 2012; Tadros 2003), in-depth empirical research on the new family courts is still lacking. The existing Arabic literature on the new family courts falls into two categories. The first consists of a series of legal books that were written by judges and lawyers that explain the structure and functions of the new courts through an analysis of the written text of PSL No. 10 (Abdel Qader 2004; Abdel-Sattar 2004; al-Bakri 2004; al-Lamsawy and al-Lamsawy 2006; Mansour 2006; Sheta 2006; Zuwein 2006). The other body of literature consists, for the most part, of short papers presented in workshops by academics and women’s rights activists, which reflect on the advantages and drawbacks of the new system and its effects on female disputants. However, this literature is not based on any systematic primary research (Abdel Qader 2004; Bibars 2007; al-Menshawy 2004; al-Samaluti 2007; al-Sayed 2004). In 2007, the Egyptian Ombudsman’s Office for Women conducted a study to explore the problems that women encountered in family courts, drawing on data collected from the complaints of female disputants that were reported to the Ombudsman’s Office as well as focus group discussions with lawyers (Ombudsman’s Office 2007). While this latter study drew on some data collected from disputants, it was also not based on first-hand empirical research.
With regard to the English literature, in 2006, Jamila Chowdhury, a lecturer in the School of Law at Bangladesh Open University, wrote an article about Egyptian family courts (Chowdhury 2006). Chowdhury’s article explains the structure and procedures of the new system and concludes that it is an advantageous legal model that is to be replicated in other Muslim countries. The author’s arguments, however, were primarily based on an analysis of the text of PSL No. 10 as well as newspaper articles on the new courts system and interview data with two disputants.
But it is Nadia Sonneveld’s book on khul‘ that presents important insights into the new courts (Sonneveld 2012). Sonneveld’s multidimensional research investigates khul‘ from multiple angles: the debates and contestations around this divorce law; the courtroom practices; and the lived realities of women who opt for this kind of divorce. In chapter 5 of her book, Sonneveld, drawing on field research, examines the role of court mediation in khul‘ cases. Her findings regarding this latter point as well as the lived realities of the women who resort to khul‘ are very relevant to this book. My research corroborates and builds on many of the author’s insightful findings, and it also sheds light on other findings that suggest a somewhat different reading from some of Sonneveld’s analysis. I will elaborate on these points in due course. But the fact remains that none of the aforementioned Arabic and English literature, including Sonneveld’s significant study, provides a close analysis of the various actors and agendas behind the establishment of this new courts system in particular.
The first aim of this book is to fill that gap. I examine how three main agendas drove the establishment of the new family courts. One agenda was led by Laila Takla, the prominent Egyptian legal expert who spearheaded the establishment of the new family courts. Takla’s agenda was shaped by a global trend toward specialized, mediation-based family courts that take into account the well-being of the family and in particular the best interests of children, and hence seek to deliver therapeutic justice (Kelly 2004; Rhoades 2010; Roberts 2014; Singer 2009). The new family courts law was also pushed by a state agenda seeking to modernize and make efficient the legal system, a goal that was linked to larger development and governance agendas (Hasso 2011; Sonneveld 2012). The cause of establishing new family courts was, furthermore, espoused by prominent women’s rights advocates whose goal was to address gender-based inequalities and injustice. Adopting a strategy of gradual and procedure-oriented reform, these advocates lobbied for the new family courts through their roles as key figures in state institutions such as the National Council for Women and the then-ruling but now-dissolved National Democratic Party (NDP). For these women’s rights advocates, the new family courts were an important step on the pathway toward egalitarian gender rights in the family domain as the new legal system was meant to provide female disputants with an accessible, efficient, and affordable justice system.
I shed light on these diverse reform actors and investigate to what extent their respective agendas were congruent. I examine how the alliance between these diverse actors and their goals played out in the process of drafting and promulgating PSL No. 10. In addition, I trace the top-down and rushed reform process, which did not adequately take into account the reservations of various nongovernmental women’s rights organizations on the proposed new courts system, highlighting how this reform process shaped the drafting of the text of the law as well as its implementation. This research shows that it is not only the content of the written texts of new laws that matters in the pursuit of gender-sensitive reforms, but also the process through which these laws are proposed and advocated, for the reform process is itself part of the discursive space where new laws take on their social meanings, and these meanings accordingly have their bearings on the implementation of the new courts system and women’s access to justice.
My second aim is to examine how female disputants use and experience the legal process in the new family courts. I provide an empirically-grounded, in-depth analysis of how the new courts system works for and against women, particularly with regard to the role of court mediation both as a compulsory pre-litigation mechanism of dispute resolution and as part of the litigation process itself. I investigate the following questions: Does the new courts system deliver speedy, inexpensive, and accessible means to justice, particularly in maintenance claims, which constitute the largest bulk of court cases in family courts? How do the premises of the new courts and their resources influence their work? How do the actors in the new courts system such as settlement specialists, court experts, and judges understand their respective roles and implement the philosophy and the functions of the new legal system? What kind of dialogues are enabled or hindered with the disputants during the legal process, particularly during mediation?
Perhaps one of the most important and highly publicized features of the new family courts is its incorporation of mediation into the legal process. Sonneveld found that mediation was useful for women in khul‘ cases because “judges and mediators in the family courts provide a dialogue between husbands and wives in divorce cases that often does not occur in their lives outside the court” (Sonneveld 2012: 7). Sonneveld’s research showed that this dialogue enabled khul‘ female plaintiffs to negotiate with their husbands for more favorable out-of-court divorce settlements (ibra’) as husbands were eager to avoid the stigma of divorce through khul‘ (Sonneveld 2012: 126). However, this study, which draws on a larger body of data and covers a more extended period of time, suggests that Sonneveld’s findings on this point may not be common and need to be revisited, particularly in light of the host of legislative, structural, and resource-based problems that plague the structure and functions of court mediation, which was a key finding in this research. This study, most of all, suggests that in order to better assess the significance of court mediation for women whether in khul‘ or other lawsuits, we need to examine how the different functions of the new courts system relate to one another and how this shapes the legal process. For example, it is important to examine the nature of the work undertaken by settlement specialists and court experts, and how they relate or not to one another. In Sonneveld’s analysis, these relevant aspects are unexamined. The mediation work of the settlement specialists is supposed to function as an alternative to litigation and yet often ends up, due to multiple factors, being merely the first step in the litigation process. The work of the court experts, on the other hand, is part and parcel of litigation and is not confined to mediation, but also includes assisting the judiciary panel with court procedures that entail gathering information from and about disputants. Furthermore, disputants do not have to be physically present in meetings with either settlement specialists or court experts, as their legal representatives can attend on their behalf. This was commonly true of male disputants in various lawsuits. These points have implications for the role and significance of court mediation whether in khul‘ or other types of cases, which will be elaborated on in this book.5
Sonneveld also sheds light on the gender discourses that were articulated by both judges and court mediators. She noted two kinds of discourses: one, which she calls “formal,” affirmed the legal rights of women, while an “informal” one, expressed in separate interactions with the researcher, reflected gender hierarchies and essentialized assumptions about the nature and roles of women and men. This study also found multiple (and contradictory) gender discourses in the researched family courts. But these discourses were not so much taking place in ‘formal’ versus ‘informal’ interactions. Rather, they were reflected in the interactions between various actors in mediation and court proceedings. In addition, these discourses were used in various ways not only by court personnel but also by lawyers and disputants, and with mixed outcomes for women.
As part of the second aim of this book, which tackles women’s use of the new laws and their courtroom experiences, this research also investigates women’s use of khul‘. My goal in this aspect is to investigate whether khul‘ as used by women and implemented in courts functions as a no-fault divorce, and how it compares to fault-based divorce, not only with regard to the legal process but also to the socioeconomic and familial backgrounds as well as the motivations of the female plaintiffs who petition for either type of divorce. With regard to courtroom practices, this study presents further data that corroborates the results of Halim et al.’s (2005) comparative study of khul‘ and fault-based divorce. Similar to Halim et al., this research found that khul‘ is a cheaper and more secure legal option for women, and hence particularly useful for poor women. But this study also found that there were other factors that shaped women’s opting for either khul‘ or fault-based divorce, namely how knowledgeable they were about either legal option as well as the role that their families and lawyers played in the decision-making about their legal options.
Likewise, the findings of this research corroborate Sonneveld’s main results. This study also found that it is poor women with weak family resources and social networks who tend to resort to khul‘. The research revealed the increasing prevalence of khul‘, particularly among women who were unprovided for by their husbands and needed to exit bad and unsustainable marriages—a finding that underscores the disconnect between the legal model of spousal roles and the lived realities of marriage. In addition, this study further builds on Sonneveld’s findings as it shows that some of the researched poor women’s pursuit of khul‘ was not only motivated by the goal of exiting bad marriages, but was also intertwined with their daily strategies to navigate urban poverty and access much-needed resources. That is, these women’s trajectory to khul‘ was situated in the context of their daily struggles to negotiate access to resources from state and non-state institutions such as the Ministry of Social Solidarity, nongovernmental community development organizations, and faith-based organizations. However, the policies of these various institutions which regulated the dispensation of their services were premised on the legal construction of spousal roles, that is, married women were assumed to be provided for by their husbands and were therefore perceived as less in need or deserving of the provisions provided by these organizations.6 Hence, when such women found themselves in bad marriages where they were abandoned or were not provided for by their husbands, khul‘ was the quickest and most guaranteed pathway to access resources and alleviate poverty.
To fully understand the relevance (and limits) of gender-sensitive legal reforms for women, we also need to bring into focus research on the lived realities of women and men outside courtroom practices. Sonneveld correctly highlights this point in her research and accordingly sheds light on her female interlocutors’ daily realities at home, in the workplace, and with their social networks. In particular, Sonneveld pays attention to her interlocutors’ life trajectories and choices after they secure khul‘ (Sonneveld 2012: 7, 133–85).
In this research, another important domain where we investigate the role and relevance of family law is the marriage norms and practices of ordinary women and men from different walks of life. Hence, the third aim of this book is to investigate the function and significance of family law in general, and the researched legal reforms in particular, for selected Egyptian women and men as they navigate marriage and negotiate the terms of their marital roles and rights. This research also shows the disconnect between the legal script of spousal roles and actual marriage practices on the ground. Husbands are often not the sole providers and in some cases do not even provide. In addition, women, whether single or married, often play vital economic roles in their families. Marriage remains a desired goal for many women and men for multifaceted reasons, but it is surrounded with a lot of anxieties. Tensions around marriage are shaped by the economic hardships of daily life and the high costs of marriage, on the one hand, and the incongruence between the legal construction of spousal roles and the shifting realities of marital roles on the ground, on the other hand. The legal reforms that were introduced since 2000 were present in the lives of the researched women not only when some of these interlocutors resorted to the court for particular claims but also as a contested normative discourse on spousal roles and rights. The perspectives and attitudes of the women and men toward the new laws were mixed and complex due to three broad factors: the impact of some of these laws (for example, khul‘) on power relations between spouses; the political process through which the laws were introduced; and the religious genealogy and significance of family law. Still, and despite the changing realities of spousal roles and the significance of some of the new laws such as khul‘, the ideology of inherent gender hierarchies, which is premised on the notion of qiwamah and underlying assumptions about men’s and women’s nature and roles, remained a dominant discourse.
Reform Trajectories and Challenges: Historical Contexts
The legal reforms of 2000–2005 arose from particular historical and political processes and trajectories. Shedding light on some of this context is pertinent to the question of reform agendas and strategies, which is one of the central issues examined in this book.
Egypt’s first codified personal status law,7 PSL No. 25, was enacted in 1920. PSL No. 25, like most codified Muslim family laws in the region and elsewhere in Muslim-majority countries, drew from main rulings on marriage, divorce, and parenting in Islamic jurisprudence. The code was not comprehensive and primarily dealt with regulating divorce and spousal maintenance. In 1929, PSL No. 25 was amended with some changes in divorce articles. But for the most part, the country’s family law continued to draw on a fiqh-model of spousal and parental rights. Marriage in Islamic jurisprudence is premised on a hierarchical model of spousal relations and rights (Mir-Hosseini 2015). The marital union is based on a contractual agreement between a man and a woman in which the husband has the duty to provide for his wife and their children, and in return, the wife avails of herself to him and puts herself under his authority and protection (that is, qiwamah). The husband’s exclusive right to his wife’s sexual and reproductive labor is earned through and conditioned upon his economic role. These interdependent spousal duties and rights are governed through the principle of spousal maintenance (nafaqa) in exchange for wifely obedience (ta‘a). According to this model of marriage, there are no communal matrimonial assets. Whatever possessions and assets the wife brings to the marriage remain hers, and the same applies to the husband. Husbands have unilateral right to repudiation, polygamy, as well as guardianship over the children—rights that are often justified on the basis of the principle of qiwamah. Wives, on the other hand, can only secure divorce either through negotiation with the husband or can petition for judicial divorce based on delineated and restricted fault-based grounds. These grounds differed among the juristic schools, with the Maliki school being the most liberal on women’s access to divorce and the Hanafi being the most restrictive. The schools also differed in other aspects pertaining to women’s rights. For example, the Hanafi school allowed single, never-married, virgin women of majority age to contract their own marriages without the need for the presence or consent of their (male) legal guardians, while in the other schools there is a need for a guardian’s presence and consent before a valid marriage can be contracted.8 Notwithstanding these differences, the overall juristic construction of hierarchical spousal roles and rights was the same across different schools, and this construction was transferred into modern, codified Muslim family laws, including the Egyptian one.9
After codification, adherence to the Hanafi school of jurisprudence, which was decreed in the Ottoman period, was maintained in the Egyptian legal system. In fact, the legal system required the judge to apply the dominant opinion of the Hanafi school unless there was an explicit text in the Egyptian legislation on the personal matter being reviewed.10 And yet, the newly codified law contained articles drawn from rulings from other Islamic schools of jurisprudence, for example the Maliki school in regard to judicial divorce. The codification was motivated by a nationalist state agenda of establishing a modern nation. The historian Hanan Kholoussy, for instance, points out that in the first half of the twentieth century and as the country was seeking sovereignty and independence from British rule, “Egyptian legislators also viewed marriage as paramount to the nation because the bulk of state intervention into the so-called private sphere focused on marriage and divorce laws in order to secure their public objectives of political independence and national modernity” (Kholoussy 2010: 10).
Early generations of Egyptian feminists, such as the members of the Egyptian Feminist Union and its founder Huda Sha‘rawi, tried to incorporate their agenda for gender-sensitive legal rights into the state’s modernization project (Badran 1996; Kholoussy 2010; Mashhour 2005). For example, they lobbied for raising the marriage age and reforming divorce and custody laws. These efforts resulted in some reforms. PSL No. 25 of 1920, for instance, included some changes in divorce laws that were aimed at improving the legal rights of women: Articles 4–6 in the law allowed women to file for divorce on the grounds of the husband’s failure to provide maintenance. Articles 9–11 allowed judicial divorce if the husband suffers from a contagious disease, while Articles 12–14 allowed judicial divorce on the grounds of the husband’s desertion or imprisonment. In December 27, 1923, another reform was introduced and the marriage age was set at eighteen for men and sixteen for women. Women’s rights groups, in collaboration with the government, tried to introduce further reforms that aimed at restricting polygamy by proposing the inclusion of stipulations in marriage contracts. However, the proposal for the marriage contract was rejected by the monarch in 1926. On the other hand, in 1929, when PSL No. 25 was amended, women were granted another ground for fault-based divorce, namely spousal maltreatment. Also, the husband’s repudiations that occurred under coercion and intoxication were considered invalid.
Notwithstanding these reforms, the historian Amira Sonbol cautions us against reading the story of the codification of family law and its subsequent reforms as a story of emancipation of Egyptian women. Sonbol’s numerous historical studies of premodern marriage contracts and sharia courts show that with the codification and establishment of centralized state institutions, women lost the flexibility and plurality of the decentralized premodern legal system. According to Sonbol, the premodern legal system, despite being patriarchal, enabled women to creatively negotiate and redefine their marriage and divorce rights in terms that were favorable to them (Sonbol 1996, 2001, 2003, 2009). However, with the advent of nation-states and centralized legal institutions, Sonbol argues that women became subjected to a more discriminating and marginalizing patriarchal system that was now being imposed by state machinery. Sonbol’s central conclusion is: “seeing modern law as bringing about greater rights for women is a misreading of the actual impact of these laws” (2003: 253). The historian Judith Tucker, in her studies of the fatwa institution and marriage practices in the region, also draws a similar conclusion to Sonbol’s about the mixed (and somewhat problematic) implications of codification and legal reform for women’s pursuit of egalitarian rights in the family domain (1998, 2008). Similarly, Kenneth Cuno, in his study of the legal modernization of marriage and family in Egypt in the nineteenth and early twentieth centuries, contends that the establishment of centralized judicial system and codified state laws produced “setbacks for the welfare of women that required subsequent amelioration” (2015: 204).
President Anwar Sadat’s era, in particular, was characterized by a number of reform initiatives that had interesting and contradictory impacts. Sadat started his rule by courting the Muslim Brotherhood via releasing some of their members from prison. In addition, President Sadat amended the constitution in 1971. Article 2 of the constitution stated that Islamic sharia was the main source of government legislation, a strong reflection of the government’s espousal of an Islamic discourse. The growing influence of Islamist ideology in the Egyptian society in the 1970s may explain the government’s efforts to strengthen its rule through assertions of its religious legitimacy (Lone 1995). Yet at the same time during Sadat’s era, the bold and controversial PSL No. 44 was enacted in 1979. This new law, which was decreed by the president while the parliament was in recess, included revolutionary reforms such as women’s rights to automatic judicial divorce on the grounds of their husbands’ second marriage, and the wife’s right to the conjugal home in the case of divorce if she has custody of the children. PSL No. 44 also legislated post-divorce compensation maintenance (mut‘a) for women who are divorced by their husbands without their desire or fault (Fawzy 2004). However, the law was later annulled by the Supreme Constitutional Court in 1985.11
When PSL No. 44 was struck down, it was replaced in May of the same year by PSL No. 100. The reforms that were introduced in the previous law were either crossed out or watered down in the new law. For instance, PSL No. 100 does not give a woman the right to file for divorce simply on the grounds of her husband entering into a new marriage. However, the woman in such a situation will be granted divorce only if she proves to the court that she is ‘harmed’ by her husband’s new marriage. In addition, what constitutes ‘harm’ is very loosely defined in the law, which gives judges a lot of leeway in the interpretation process, a practice that has often worked against women in judicial divorce cases (Fawzy 2004). Moreover, a woman who is filing for judicial divorce on the grounds of her husband’s second marriage can only do so within one year of her knowledge about the new marriage. Also, PSL No. 100 of 1985, unlike the annulled PSL No. 44, does not give divorced women possession of the conjugal home during the period of their custody of their children. Instead, the new law obligates husbands in such cases to pay housing costs. The implementation of the law, however, showed that in most cases the court ordered husbands to pay very little money for housing costs (Fawzy 2004).
For the legal scholar Lama Abu-Odeh (2004), Egyptian legislators’ attempts to introduce gender-sensitive reforms in family law in different eras since the codification have always been constrained by its piecemeal approach of “splitting the difference” between conservative religious establishment and scholars, on the one hand, and Egyptian feminists who were seeking more rights for women, on the other. For example, the various reforms that were introduced since codification tried to curtail some of the husband’s unchecked power and rights (such as expounding on the content of spousal maintenance or granting wives the right to financial compensation when unilaterally repudiated by husbands for no fault on their part). Still, these reforms remained partial and never displaced the hierarchies in spousal and parental rights that privilege husbands and fathers, and which are grounded in the fiqh construction of marriage.
Hence, one main and constant challenge for Egyptian women’s rights advocates who have been lobbying for gender-sensitive reforms in different eras has been to negotiate the boundaries of what is possible in terms of legal changes that would substantively change gender rights in the family, and to determine the most viable strategies toward realizing these reforms. Kholoussy, for instance, notes that the early generation of Egyptian feminists never challenged the hierarchical and complementary notion of spousal roles that were transplanted from Islamic jurisprudence into the first codified personal status law. Rather, they focused on seeking gradual and piecemeal reforms (Kholoussy 2010: 12). And in later eras, for example under the rule of presidents Sadat and Hosni Mubarak, the challenge of lobbying for gender-sensitive reforms that did not collide with dominant religious discourses was compounded by two additional challenges. One new challenge had to do with the rise of Islamist groups since the 1970s, and the Egyptian state’s concern to claim religious legitimacy in its struggle against Islamist groups. This concern impacted the scope and nature of gender-sensitive reforms that the state was willing to support and introduce. Another challenge was the increasing unpopularity of the regime, especially under the rule of Mubarak, due to its undemocratic and corrupt governance. This latter challenge created a dilemma for women’s rights groups who, on the one hand, needed the support of the state to lobby for gender-sensitive reforms, and on the other hand, either wanted to maintain their independence from the regime or were frustrated and hindered by the state’s top-down approach toward reform.
These challenges were also pertinent to the reforms of 2000–2005 and had their implications for the outcomes in legislated codes and their implementation, as will be elaborated on in the course of the book.
Background of the Study and Research Data
This book draws on a research project that I undertook in the Social Research Center (SRC) at the American University in Cairo from 2007 to 2010, under the title Reforming Egyptian Family Laws: A Study of Legal Changes, Court Room Practices, and Gender Justice. The study was part of a multidisciplinary research program titled Pathways of Women’s Empowerment, which began in 2006 as a consortium of researchers convened through regional hubs in Africa, Asia, Latin America, and the Middle East. This consortium, in the words of its coordinator Andrea Cornwall, “set about a multi-stranded enquiry into the processes of change in women’s lives, exploring not only efforts to instigate change through laws, policies, and programs, but also ‘hidden pathways,’ made possible through more diffuse economic, political and cultural changes” (Cornwall quoted in Al-Sharmani 2013b: x).
The field research for this study was carried out by a team consisting of myself (the principal investigator) and my colleagues, Sawsan Sharif and Fayrouz Gamal, research assistants at the SRC. Since our study was a multidimensional inquiry into an unfolding reform story about family law, we conducted the fieldwork in two phases. In the first phase (January 2007 to March 2008) the research focus was on two issues: investigating the process of lobbying for and promulgating the new family courts law as well as studying the implementation of the law, and in particular women’s use of the new courts system and their experiences and challenges in the legal process.
The second phase of the research (April 2008 to July 2010) focused on women’s use of khul‘ in comparison to fault-based divorce both in the courtroom and in the larger socioeconomic and familial contexts in which these women’s lives were situated. The research also explored the empowering and disempowering effects of khul‘, investigating what this contested yet increasingly useful legal option for women revealed about the disconnect between the lived realities of Egyptian marriages and the legal construction of marriage, as the latter is based, in Sonneveld’s words, on a “maintenance–obedience” relationship (2012: 123).
In this second phase of the study, marriage norms and practices of selected women and men were also researched to investigate how family law and the studied legal reforms may impact women’s and men’s views, aspirations, and choices regarding marriage. In addition, state and non-state initiatives, which were being formulated at the time to propose and advocate for new and comprehensive gender-sensitive substantive family laws, were also investigated.
I conducted interviews with different key actors who were involved in lobbying for the new family courts law, as well as with relevant stakeholders who were debating/contesting this new courts system. In addition, I conducted interviews with key actors who were spearheading initiatives to lobby for a comprehensive, gender-sensitive, substantive family law in the second phase of the study, and took part in workshops that were organized by a number of key women’s rights groups around this issue.
For the research on the implementation of the new family courts and the khul‘ law, my colleagues and I conducted interviews with a total of 194 disputants. These disputants were predominantly women (with the exception of eleven male disputants) since our focus was to investigate women’s use and experiences of the researched new laws and given the constraints on our research resources. These interviews were carried out in women’s rights organizations, near court premises, and some in our office premises. The disputants were based in the governorates of Cairo, Giza, Gharbiya, and Qalyubiya.
We also interviewed a total of thirty-three individuals who were working in the new family courts in Cairo, Giza, Alexandria, Banha, and Munufiya. They were settlement specialists, court experts, and judges. My colleagues and I interviewed twelve settlement specialists who were based in Cairo and Giza. We also observed some of the mediation sessions that these specialists and their other colleagues conducted over a period of several months. Furthermore, we conducted four focus group discussions with lawyers in Cairo and Giza. In addition, I interviewed eight judges and ten court experts. I also observed court proceedings in two family courts in Giza and Cairo over a period of six months in 2007. Then, over a period of three months in 2009–2010, I observed court proceedings in a Giza family court as well as mediation sessions conducted by court experts there. In addition, I reviewed thirty written court judgments of some of the khul‘ and fault-based divorce cases that we researched.
For the research on the interplay between marriage practices and the studied legal reforms, we conducted interviews with a hundred women and men of different marital statuses in Cairo and Giza. The interviews were conducted in our office premises, except for some that were conducted in the workplace of the interviewees.
The question of resources and access to interlocutors is important, particularly in a study like this where fairly extensive field research was undertaken. Needless to say, being based at a research institution in a university provided us with invaluable resources. Specifically, the SRC provided us with transportation, which made undertaking fieldwork in different governorates possible. In addition, my institutional affiliation and professional ties with colleagues at the SRC facilitated my access to a number of key interlocutors such as prominent lawyers and judges, members of the National Council for Women, members of the Women’s Committee at the NDP, members of nongovernmental women’s rights organizations, religious scholars, and public thinkers. Our institutional affiliation and resources made no difference with regard to access to the courts. In fact, in the first few months of the research, I repeatedly tried to organize access to courts through formal institutional arrangements but nothing materialized. Rather, our access to the courts came about informally and organically. We were able to establish initial contact with two settlement specialists through our interlocutor lawyers, and these specialists in turn helped us establish contact with other specialists at other courts. Also, my contacts with judges were established through various informal ways. With some of the judges, I was able to establish contact and secure permission for interviews and observation after spending many hours at the door of their courtrooms and sending my verbal requests with the bailiffs. With others, establishing contact was facilitated by other judges whom I had already met and interviewed. And with some judges, the contact was established through personal ties with friends and colleagues. The ties I had already established with interviewed judges facilitated access to court experts.
My interviews with six of the judges took place in various court premises in Cairo, Giza, and Alexandria. As for the interviews with the judges who were based in Banha and Munufiya, they were conducted in the Judges Club in Giza, upon their request. The interviews varied in length and depth. For example, I was able to conduct several follow-up interviews with two judges since I was also observing the proceedings in their courtrooms for a period of time. With three judges, I had an unplanned group interview that lasted for an hour and a half, whereas I conducted longer scheduled individual interviews with three other judges. Again, the interviews with the court experts also varied in length and depth. With five of the court experts, I was able to conduct a series of short individual interviews over a period of many months as I was conducting court observations in Cairo and Giza. With the other five court experts, I conducted a one-hour group interview and then short half-hour follow-up interviews with three of the court experts over the course of two days when I was conducting field research in Alexandria.
My access to courtroom proceedings for observation also varied. On some days, I was granted more or less full access and thus I was allowed to attend all court sessions for the day, and talk to the court personnel afterward. On other days, I was sent away because either the judge who facilitated my access was not there, or because the judiciary panel was too busy or did not want a researcher around on that particular day. On the whole, I was able to conduct fairly regular observations in one court in 2007—twice a week over a period of six months—and again in 2009–2010, although the observations in the latter court were once a week for three months. My observations in the third court (conducted in 2007), however, were much less regular. Hence, the findings of this research need to also be assessed in light of these data limitations. Thus, this study does not claim to be based on data that is nationally representative or entirely systematic. Still, I believe the collected data was sufficiently adequate and varied to yield noteworthy findings. Again, neither the size nor the profile of the disputants was representative nationwide. Also, only one-time interviews were conducted with all the disputants except for one. In other words, we did not repeatedly meet with the disputants and spend a lot of time with them to learn about different aspects of their lives. I spent extensive time with only one disputant, and conducted a series of life story interviews with her as I followed her trajectory to fault-based divorce over several years. I wrote about this disputant elsewhere (Al-Sharmani 2014a). But overall, it was not possible to conduct extensive field research on a larger number of disputants, given the multifaceted focus of our research and our human resource constraints. Again, these constraints are relevant to the limitations of this study.
A number of works drawing on this research have already been published. However, this book provides a much more developed and in-depth analysis of the multifaceted findings of this research.
Organization of the Book
The book is divided into five chapters. Chapter 1 traces the efforts of the main actors who were behind the establishment of the new family courts. My aim is to shed light on the varied and sometimes divergent understandings and aims of the different actors who were involved in these efforts, as well as the rushed and top-down process through which the new law was codified, resulting in the establishment of a court system with challenges and contradictions.
Chapter 2 examines the practices of the new family courts. I investigate how the new courts system—with its special features of pre- and while-litigation mediation as well as specialized judiciary panel—facilitates or hinders women’s access to justice. I explore how those working in the new family courts understand and undertake their roles. I also examine disputants’ experiences of court mediation, highlighting the latter’s mixed and uneven functions and effects as both an alternative mechanism of dispute resolution and as part of the litigation process. In addition, I examine the kinds of dialogues that take place between disputants and court personnel and the gender discourses that they reflect and sustain. My overall aim is to identify and reflect on the main limitations as well as the benefits—albeit limited—of the new courts system as a pathway to the legal empowerment of women.
Chapter 3 sheds light on women disputants’ use of khul‘ as a legal option. I examine common motivations and goals for seeking this type of divorce. I highlight the familial and social contexts in which these women’s lives are embedded and how these contexts shape their trajectories to this type of divorce. The chapter also examines the legal processes and experiences entailed in women’s pursuit of khul‘ in the courtroom in order to identify the benefits of this law as well as its challenges and limitations for women. In relation to this latter point, my goal is to investigate if khul‘, in the way it is used and implemented, functions as a no-fault divorce and how it compares to fault-based divorce in terms of plaintiffs’ legal strategies, goals, and experiences. This chapter draws partially on a published book chapter (Al-Sharmani 2012), but it presents a much more developed analysis that is informed by a larger body of data than what was used in the earlier published material.
Chapter 4 examines the role that family law plays outside legal texts and courtroom practices. I investigate if and how the legal script of marriage and marital rights relate to and shape marriage practices in the society. Does it influence women’s and men’s aspirations, goals, and strategies as they pursue or navigate marriage relationships? In particular, I investigate the impact of the new personal status laws which have been introduced since 2000 on the social discourses and practices of marriage.
Chapter 5 reflects on the findings of this study with regard to the significance and limitations of the new family courts and the khul‘ law as legal pathways to gender reform. The chapter also reviews the initiatives that were being put forward in the period from 2005 to 2010 by different state and non-state actors to legislate new comprehensive, gender-sensitive, substantive personal status laws. I examine how the proposals for a new substantive family law were speaking to the gaps in the already introduced legal reforms and building on them. I also briefly shed light on why and how the pursuit of religious reform became ever more relevant and intertwined with the gender-sensitive reform of family law during this period.
I conclude with final reflections on the trajectory of seeking gender equality and justice through reforms of family laws in modern-day Egypt, with the unfolding of the January 25 Revolution of 2011 and its aftermath.
