Sat 4 Apr 2009
Reforming Islamic family law within the religious framework: the « best practices » strategy
by Khalid Chraibi
Many people in the Muslim world believe, wrongly, that shari’ah is a compilation of legal rules which are uniformly applied in all Muslim countries. But, the facts are otherwise: these rules vary significantly from one country to another, as well as over time. As a result, the status of women in Muslim countries, which is ruled by shari’ah, differs in many ways from one country to another. On any given issue, some national “personal status codes” grant more rights to women or better protect their interests than other codes.
According to feminine NGOs working in the field of Muslim women’s rights, if Governments accepted to apply the more favourable rules on any Islamic family law issue (designated as the “best practices”), this would contribute significantly to the reform of family law “within the religious framework”, bringing it closer to contemporary international standards.
The unicity of shari’ah within the diversity of rites
These differences between Muslim countries in the rules of applied shari’ah do not result from a drift by Muslim jurists operating in different national settings. The founders of the major legal schools of thought opted for this policy of diversity in the early days of Islam, and had it ratified by the first caliphs and their successors.
Thus, when Malik ibn Anas prepared, at the request of the caliph Abu Jaafar Al Mansur, his major compilation of Muslim law known as “Al-Muatta”, the caliph wanted to use this work as the reference in Muslim law, in all the territories under Caliphate rule. But, Malik disagreed, on the grounds that each major Muslim community in the Caliphate already had its own rules and methodology in the field of “fiqh”, and should be left free to develop its own jurisprudence in this domain.
Similarly, the founders of the four main schools of Shari’ah in the Sunni tradition (Abu Hanifa, Malik ibn Anas, Shafi’i, Ibn Hanbal), insisted, in their teachings, that their views should not be considered as final or binding on all Muslims, in all regions of the world and for all times. If a different legal school of thought presented a better interpretation of a rule, it should be given due consideration. This broadmindedness was a characteristic of the juridical culture of the times, and resulted in a wealth of output by Muslim jurists, over a period of several centuries, until the political authorities decided to put an end to all activities of juridical “ijtihad” in the 10th century.
Muslim jurists pride themselves, today, on the diversity of rules developed by the various Islamic legal schools, describing it as a blessing from Heaven. According to them, all these rules comply with Quranic prescriptions and with the teachings of the Sunnah, despite their differences.
But, this diversity of interpretations adds to the complexity of the tasks of the associations of defense of women’s rights, when they must handle cases in Muslim legal environments as different as those of Saudi Arabia and Morocco, for example, even though both claim that they merely apply shari’ah.
Two contrasted examples: Saudi Arabia and Morocco
According to a report submitted in 2007 by the Saudi association “Women for reform” to the UN “Committee for the elimination of discrimination against women” (CEDAW), Saudi women are confronted in a routine way, in their daily life, with great difficulties, due to the following factors:
• There is a total segregation between the sexes, with negative consequences for women, in all aspects of their life;
• During their entire life, Saudi women live “under the tutelage” of a male guardian, be it a father, a husband or a blood relative;
• “Without the permission of her “guardian”, a woman can neither go to school, nor obtain medical care, nor marry, nor travel abroad, nor manage a business, nor do anything of significance…”.
Saudi authorities explain, however, that Shari’ah has defined a different set of rules for males and females. Consequently, by applying to each of the two sexes the appropriate Shari’ah rules, they do not violate anyone’s rights, whether male or female. Shari’ah merely presents a conception of human rights which differs from that of Western countries.
In contrast, in Morocco, the Personal Status Code of 1957, adopted shortly after independence, was revised in-depth in 2004, following several decades of struggle by feminine associations, in order to reflect the evolution of Moroccan society over the past half-century.
The new “Family law” completely redefined the legal status of women within the family and society, bringing it considerably closer to current international standards. Among other things, it makes the family the joint responsibility of both spouses, rescinding the wife’s duty of obedience to her husband. It allows women to be their own guardians, and raises the minimum age of marriage for women to eighteen years. It puts prohibitive restrictions on polygamy, by requiring the consent of the first wife, the notification of the second wife of the existence of the first one, and a judge’s consent to the second marriage – which may be granted if he is satisfied that the husband will grant equal status to each wife, in every respect.
The Law makes polygamy grounds for divorce by the first wife, and promotes the use of a marriage contract to exclude the possibility of a second marriage by the husband. It puts repudiation under strict judicial control, and requires an equitable distribution of the couple’s assets before a divorce can be final.
The Moroccan ulamas and jurists associated with the revision of the Code explain that all its provisions were based on an attentive and meticulous reading of the Shari’ah, in all its complexity, taking into account the “best practices” in use in other Muslim countries.
However, following this recasting of the Personal Status Code, the Moroccan authorities progressively withdrew, one after the other, the reservations they had previously expressed about the application in Morocco of some provisions of various international Conventions dealing with women’s rights, which they had earlier considered as possibly “incompatible with religious prescriptions.”
The “better practices” strategy
Confronted with such a range of interpretations in the rules applied to the status of women in various Muslim countries, feminine NGOs have understood the vanity of challenging any of these interpretations. Thus, although Saudi Arabia and Morocco differ in significant ways in their interpretation of Shari’ah, the authorities in both countries are fully convinced that they faithfully apply its prescriptions.
Feminine NGOs such as “Collectif 95 Maghreb-Egalité” (which comprises the main feminine associations of Morocco, Algeria and Tunisia) or “Sisters in Islam” from Malaysia have studied these issues in-depth, and come up with a new strategy to achieve progress in the field of Muslim women’s rights:
“If all these different rules are equally valid in the Shari’ah, and if some of them grant more rights to women or protect their interests better, isn’t it these rules (designated as the “best practices” in Islamic family law) which should be applied in Muslim countries, in the beginning of the 21st century, in preference to the rules which are less favourable to women’s rights? Why should women pay the price for these differences in interpretation, which clearly are the acts of men?”
In support of this last point, NGOs observe that, although the Personal Status Codes of Muslim countries are based on Quranic prescriptions and Sunnah teachings, they are periodically revised (Egypt 2000, Mauritania 2001, Morocco 2004, Algeria 2005…). Since the rules presented in these codes were periodically changed, isn’t this conclusive evidence that many provisions contained in the codes of family law reflect man-made choices, which have nothing to do with religious prescriptions?
Representative “Best practices”
In order to illustrate what the “best practices” entail, the Malaysian NGO “Sisters in Islam” (SIS) drew up the following listing of what it considers as representative “best practices”, regrouped by category, based on the provisions of current family laws in the Muslim world.
Age of the marriage: 18 years for boys and girls (Morocco)
Assent of the spouses: Each of the two spouses must explicitly and freely express his assent to the marriage (Tanzania, Tunisia, Morocco, etc)
Wali (Tutor): In Tunisia, the would-be spouses can contract their marriage with no need for a wali. In Cameroon, Fiji, Gambia, Turkey, Uzbekistan, Kyrgyztan: no wali is necessary. In Sri Lanka, Bangladesh, Pakistan (under Hanafi rite): no wali is necessary for Hanafi women who reached puberty.
Witnesses to the marriage: In Senegal, two adult witnesses are required, one for each spouse (with no sex specification for the witnesses).
Polygamy: In Tunisia, it is prohibited. In Morocco, the 2004 Code established severe conditions, including the wife’s right to specify in the marriage contract, if she so wishes, a provision to prohibit a second marriage by the husband
Nushuz (disobedience of the wife): In Turkey, Indonesia, Tunisia, there is equality between the two spouses in decisions concerning family life matters.
Divorce: In Tunisia, divorce can only be pronounced by a judge. The two spouses can claim the same grounds for divorce. In Indonesia, the husband, married under Muslim law, must notify in writing the Shari’ah Court of his intention to divorce. The six grounds for divorce can be claimed equally by the spouses. A reconciliation procedure must be carried out. If it fails, the divorce is pronounced by the Court and is final.
Alimony: In Tunisia, if the husband is “at fault”, the divorced wife receives alimony whose amount is determined based on the standard of living to which she was accustomed during marriage. In Turkey, the spouse which is “least at fault” can claim reasonable compensation, paid either monthly or in a lump sum.
Custody of the children: The Court can entrust the custody of children to either one of the parents, taking into account the children’s best interests (Tunisia, Cameroon, Republics of Central Asia).
Impact of the application of the “best practices”:
According to feminine associations operating in this field, the adoption by Muslim countries of the “best practices” in Islamic family law could have a considerable impact on the daily life of millions of women. It would eliminate some of the excesses to which the authorities go in their interpretation of the rules of shari’ah, at the expense of women’s rights, such as the prohibition of women driving of a vehicle; the strict segregation between the sexes in public places, hospitals and schools; the obligation to wear clothing of a particular type such as hijab, niqab or “burqua”; or even, sometimes, the prohibition to work outside the home …
The adoption of the “best practices” would also pave the way for a redefinition of the legal status of women in the Muslim world, giving them the juridical means to protect themselves from abuse in their daily life, whether under the form of ill-treatment, marital violence, repudiation, polygamy, discriminatory practices or sexual harassment in the workplace…
Al_Qaradawi, Yusuf. Assahwa al_Islamiya, Cairo, 1991
An-Na’im, Abdullahi A., ed. Islamic Family Law in a Changing world, London, Zed Books, 2002
Women for Reform (WFR). “Shadow report” from Saudi Arabia’s ad hoc group of women to CEDAW, 2007
Saudi Arabia. Official Government Report to CEDAW, 2007
Morocco. Family Law Code, 2004
Collectif 95 Maghreb-Egalité. Guide to equality in the family in the Maghreb, 2003
Collectif 95 Maghreb-Egalité. One hundred steps, one hundred provisions for an egalitarian codification of Family and Personal Status laws in the Maghreb, 1995
Freedom House: Women’s Rights in the Middle East and North Africa, 2005
United Nations Development Programme (UNDP). The Arab Human Development Report 2005 – Towards the Rise of women in the Arab world, 2006
Sisters In Islam (SIS). Best practices in family law
Sisters In Islam (SIS). Guide to equality in the family in Malaysia
Rand Corporation. “Best practices” Progressive family laws in Muslim countries, 2005
Women Learning Partnership (WLP). Best practices in family law