Women, Shari‘a, and Personal Status Law Reform in Egypt after the Revolution

Like almost everything else during the uncertain period of the transitional government, the future of personal status law reform is at a crossroads in Egypt. The new constitution (assuming one will exist)^[1] may technically have little direct impact on how the country’s laws affect women’s lives, but the legislative process that emerges thereafter most certainly will. Likewise, while the ongoing electoral and constitutional process may have no immediate bearing on the laws of family and personal status (such laws are often implemented more gradually), much of the population does not see it so. For many, the role religion plays in the future political life of the country is an issue of utmost urgency and significance. And the application of shari‘a often symbolizes this role, a role that in Egyptian society is most visible in the laws of personal status, which cover matters such as marriage, divorce, child custody, and inheritance.

Women’s legal status, as affected by these laws, constitutes, therefore, a key symbolic battleground over which conservative and progressive forces are struggling to realize their visions of the future. The debates raging over whether elections or a constitution should come first, followed by the debate over what constitutional or supra-constitutional principles the process should follow, illustrates this struggle in broad scope.^[2] Efforts to affect the social and legal status of women more directly are also afoot, however, as myriad social and political groups attempt to organize across the country. The eventual process of legislation and enactment will necessarily be complicated, but the political narratives that seek to affect it are not — the power of the political message depends on its simplicity. Some argue that Islam and family are the foundations of a healthy society and paint past reforms as part and parcel of the corruption of the former regime. Others, including both foreign and domestic parties, see any talk of Islam or shari‘a as a symptom of a truncated democratic process. There are many shades in between.

In Egypt, the debate over personal status law reform for Muslims (Christians have their own family law) has centered on the Islamic legal term khula‘, a divorce process initiated by the female spouse in which she forfeits financial rights and reimburses her husband the dowry paid when contracting the marriage. A period of reconciliation must ensue before the divorce is enacted, and she must state in court that she “hates living with her husband” and is “afraid to cross the limits of God.”^[3] The key issue about khula‘ is that it does not require spousal consent. It is a reform to divorce laws that is based on the Islamic legal tradition, while also representing a break from the classical definition of khula‘, which required consent and could thus be easily thwarted by the husband.

This current form of khula‘ was incorporated into Egypt’s personal status law in 2000 and was accompanied by other reforms, including the formulation of a new standard marriage contract that gave women the right to stipulate conditions, such as the right to divorce in the event of a husband’s contracting a second marriage. Further reforms in 2005 also included the establishment of family courts, the creation of a Family Fund for court-ordered alimony and maintenance for female disputants, and new child custody laws (child custody laws have increasingly become central in the national debate). Support for the reforms by means of mobilizing and drafting came from various quarters of Egyptian society, but the final legislation counted on the support of the now-defunct National Democratic Party and the National Council for Women, headed by the former First Lady, Suzanne Mubarak.

Post-January 25 detractors of these reforms refer to them as “Suzanne’s Law” — echoing criticism of a set of reforms enacted under Anwar Sadat, then labeled “Jehan’s Law,” after First Lady Jehan Sadat — and are seeking to repeal them on the basis that they “contradict shari‘a” and are a legacy of the corruption and tyranny of the fallen regime. Criticism of such reforms, especially by invoking shari‘a, is nothing new in Egypt. What is new in the current backlash “is their being presented to the public as part of a revolutionary struggle against corruption and the political repression of the old regime,” according to Mulki al-Sharmani, former research faculty at the Social Research Center at the American University in Cairo.^[4]As the transitional government lumbers toward national elections and the drafting of a new constitution, social and political actors are positioning themselves to affect the ultimate outcome, some calling for a complete repeal of existing reforms, others calling for broader and more thorough legislation in favor of gender equality.

Historical Background

The polarizing tendency of personal status law reform makes it a politically sensitive subject, able to sway broad portions of public opinion. The polarized positions, however, hardly represent what is a more nuanced reality. Egyptian society includes a diversity of positions regarding women’s personal legal status. The history of this debate is likewise long and complex. Egypt’s legal regime reflects its past: Ottoman, French, and British colonial, republican, socialist, and, in the last 30 years, a balancing-act between trends espoused by popular political Islamic movements and domestic and international secular-liberal ones. While the legal history of Egypt cannot be described in any kind of detail here, it should not be described as a development from “religious” to “secular,” even if popularly conceived as such.

Feminist activism in Egypt is, by several accounts, the oldest in the Arab world, dating to the first quarter of the 20^th century. The personal status laws of Egypt, however, lag behind those of other countries, such as Tunisia and Morocco, at least in terms of gender equality according to the letter of the law. The history of reforming these laws has not been without its set-backs and has been passionately contested.

The first codification of personal status law appeared in 1920 and incorporated some Islamic reformist ideas that gained currency in the late 19^th century and called for looking outside the predominant Islamic legal school of the country, the Hanafi school, and incorporating elements from the other three schools recognized by Sunni Muslim jurists. As was the trend in other countries of North Africa, the constitution, and civil, administrative, and criminal law codes were largely inspired by European traditions (French, Italian, Belgian), while the laws regulating marriage, divorce, inheritance, and guardianship (i.e., family or personal status laws) fell under the purview of the Islamic legal tradition. This trend, dominant in the colonial period, goes back to Ottoman-period legal reforms and the establishment of new courts.

Three years after the revolution of 1952, the government of Gamal ‘Abd al-Nasser abolished separate family courts for Jews, Christians, and Muslims. National courts henceforth adjudicated issues of family and personal status law, but the laws themselves were not significantly altered. Under the regimes of Sadat and Mubarak, two broad trends developed: on one hand, the government signed several international agreements, including the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979 (adopted with the reservation that some articles not be applicable if they violated shari‘a). On the other hand, there has also been a broad movement embracing principles of political Islam, perhaps best exemplified by the constitutional amendment of 1980 that declared shari‘a as “the” major source of legislation in the country (Art. 2).

These trends came to a head in the early 1980s when amendments made to the 1920 and 1929 personal status laws met widespread resistance. The decree, known as “Jehan’s Law,” was eventually declared unconstitutional by the Supreme Constitutional Court in 1985 on the basis of the illegality of the procedure by which it was enacted — it was decreed under a state of emergency that the court deemed unjustified.^[5] The Mubarak government passed new legislation on Islamic personal status law later in 1985, removing some of the most controversial issues of “Jehan’s Law.”

The year 2000 saw the promulgation of the khula‘ law, which gave women access to non-consensual divorce, a new standard marriage contract allowing for stipulations,^[6] and a law allowing women to apply for a passport, and thus to travel, without spousal consent. In 2003, the first female judge was appointed to the Supreme Constitutional Court and in 2007, the Supreme Judicial Council swore in 30 female judges to courts of first instance in Cairo, Giza, and Alexandria. All the while, and as became all too clear after January 25, 2011, the regime was losing legitimacy with its people. The question arises, then, of how the laws it passed will be dealt with in the future.

For and Against

In the “wide-open” environment of Egypt under the transitional government, personal status law reform is not the top priority, nor is the broader issue of women’s rights. The separation of powers, holding of free and transparent elections, and curbing of the armed forces’ power — military tribunals are reported to have summarily tried up to 12,000 civilians since March — stand as paramount.^[7] Since February, however, several public efforts and initiatives to influence the direction of existing and future reforms have taken place, many touching on the issue of the role of Islam in post-revolutionary Egypt.

Montasser El Zayat, a candidate for the presidency of the Lawyers’ Syndicate, has called for the repeal of personal status reforms enacted since 2000, claiming that they had led to the breakdown of the Egyptian family. Discussing the negative impact of the Mubarak regime on Egyptian society in an April article in al-Masry al-Youm, El Zayat said that Egyptians needed to shed light on important social changes, which struck at the core of the foundations of the Egyptian family. The most important dimension that concerns us [here] is to address the effects of the laws of family and custody that were sponsored and prioritized by Mrs. Suzanne Thabit, the wife of the former president, Hosni Mubarak, in what was known as Qawānīn al-Hānum (The Laws of the Lady). These began with Egypt hosting the population conference of 1990 and led to decisions that clash with the essence of sharia and contradict the attributes of the Muslim character specifically and the Egyptian character generally. Many speak of the disruption of social relations which have lead to the breakdown of the Egyptian family … .^[8]

In April, Counselor Abdullah El Baga, President of the Family Appeal Court, presented in April a draft proposal to the Prime Minister of the transitional government, Essam Sharaf, with changes to personal status laws, which include repealing the khula‘ law, shortening mothers’ custody (until age 7 for male children, age 10 for female children), and enforcing a wife’s obedience by requiring return to the marital home (if she has not presented a formal objection to court within a limited time-frame) and ceasing alimony payments when her disobedience persists.^[9] And two groups reportedly formed by divorced husbands, The Revolution of Egyptian Men and The Association for Saving the Egyptian Family, have held high-profile demonstrations, a hunger strike, and a meeting with the Grand Shaykh of al-Azhar, in an effort to repeal khula‘ and Law No. 4 of 2005, “which grants custodial rights to mothers of children up to the age of 15.”^[10]

Conversely, voices calling for protecting and deepening the reforms have been present in numerous op-ed pieces in newspapers, petitions by NGOs, and initiatives, such as the open call by the Center for Egyptian Women’s Legal Assistance (CEWLA) for a new personal status law for Christians (there have been numerous calls for Pope Shenouda to relax divorce laws)^[11] and specific constitutional proposals by the Women and Memory Forum’s Constitutional Working Group, with the stated aim of enhancing and protecting women’s political, legal, and social rights.

Conclusion

The debate over personal status law reform is fraught with the many anxieties Egyptians feel about their future. Conservatives fear the undermining of Egyptian society by outside values and the decline of the family as the foundation of social morality and stability. Progressives fear the “Islamization” of society and limitations on individual freedoms. And, to be sure, there are many who inhabit spaces in between, including progressive Muslims, who may conceive of liberal reforms in Islamic terms.

Much about the debate is skewed and oversimplified. Shari‘a is a powerful concept in this debate, because it represents an ideal far from the great body of substantive law that is traditional Islamic law (which is perhaps more closely equivalent to the term fiqh). Shari‘a represents the ideal of following the will of God, but, as most classically-trained Muslim jurists would agree, human knowledge of the will of God is subject to interpretation. No one simply “knows” what that will is. The attraction of the concept of shari‘a among many Muslims is, furthermore, derived from its association with what in English would be termed “the rule of law” or “truth” and “justice,” which are compelling notions for a population submitted for so long to dictatorship and single party rule. It connotes transparency and accountability and, among other things, forms part of the region’s centuries-old ethical discourse, enjoying a legitimacy that Western legal and political discourse lacks because of its association with colonialism and the perpetuation of military police states. This is perhaps why arguments for reform grounded in Islamic discourse appear to be better positioned to bring about change.

The issue of the reforms enacted since 2000 being tainted by what is now seen as a hopelessly corrupt regime is a complicated one, with echoes at many levels of the country’s administration and public institutions, which are now subject to ongoing calls for a complete purge. The principal issue is the question of where such a purge should stop, and, if selective, what it should include. In what cases is administrative expertise more important than innocence of involvement with the Mubarak regime — one of the only avenues for having any administrative experience in the country before January 25? How much of that involvement will eventually be deemed acceptable to partake in building the future is up for debate. The entirety of the country’s institutions, public and private, are affected. Perhaps most importantly, however, is the fact that laws and courts and their procedures are often not the product of Tahrir-like mobilization, but rather of a slower and more fastidious process. To quote Mulki al-Sharmani again, the practice and experience of “the messy and complex realities of court room interactions or even of the lived experiences of marriage and gender relations” transcend political agendas.^[12] A satisfactory compromise in the way forward will have to heed the varied opinions of those individuals most closely engaged in the day-to-day negotiation of the laws.