Egyptian Women’s Rights NGOs: Personal Status Law Reform between Islamic and International Human Rights Law



Personal Status Law Reform between Islamic and International Human Rights Law1

Marwa Sharafeldin

This chapter is based on a field study of how a group of Egyptian women’s rights NGOs are adapting a new discourse to the Egyptian context in order to reform the personal status law (PSL), using both religious and human rights frames of reference. The PSL is the law governing family relations in Egypt, including marriage, divorce and custody. Because it is based on what the law-makers conceive to be Islamic law, it is very difficult to critique it for reform, as this becomes synonymous with critiquing Islam itself. It is, however, one of the main sites where Islamic concepts like wilāya and qiwāma take legal shape and force,2 in the form of rights and obligations such as the wife’s obligation to obedience, the husband’s obligation to maintenance, and his right of unilateral divorce. These legal stipulations have become problematic in Egyptian society today from the point of view of the NGOs studied. Here I investigate the complex process through which women’s rights NGOs selectively borrow, mix and develop elements of both Islamic law and international human rights laws to advocate a reformed PSL with a new conception of what wilāya and qiwāma could be today.3

This chapter first discusses the main ‘references’ or sources of law on which NGOs base their suggested reforms of the PSL. It then focuses on their legal method, namely, how they appropriate the religious and human rights references to support their PSL reform proposal. It gives concrete examples of this work in relation to the discussion of particular rights and obligations. It ends with a brief analysis of the potential and challenges of making a new discourse.

The methodology of this research was multi-pronged. Fieldwork included participant observation of activities and meetings of a network of 11 NGOs, which, since 2007, has defined its mandate as working for PSL reform.4 Interviews were also conducted with the NGO members in this network who specialise in law, as well as other NGOs and activists outside the network working on the same topic. A total of 15 NGOs were studied for this research. Additionally, I closely followed and analysed the development of the network’s law reform proposal document and the different stages of its development.

It is important to note that divergences of opinion did exist between the different NGOs. It was rare to find a consensus on any one topic of reform in the PSL. However, there were general tendencies and majority opinions on certain issues.

1. The personal status law

This law deals with all family issues in Egypt including marriage, divorce, maintenance, custody, paternity and guardianship. The term PSL is misleading, because it is used to describe not one but several laws that govern personal status, such as Decree Law 25/1920, Decree Law 25/1929 and Law 100/1985, to mention a few. Since the 1920s, the ‘law’ has only undergone a series of gradual amendments, thus indicating the historical difficulty, due to societal resistance, of changing it comprehensively.5 The sanctity with which the law is imbued, by its relationship with religion, is one reason for society’s resistance. Personal status laws have always been based on what is perceived to be Islamic law,6 and the primacy of men over women in marital affairs.7

The underlying philosophy of all these laws is that men, having the qiwāma and wilāya, provide financially for their wives and therefore command their obedience and have authority over them. Consequently, the relationship between the spouses is legislated as one of complementarity, not equality.8

This particular conception of male authority over women in the PSL can be seen to be legally reflected in the ease of divorce for men and its difficulty for women; the possibility of polygamy for men; the husband’s obligation to maintain the family; the wife’s obligation of obedience to her husband and the father’s right of guardianship over the children.

NGOs find these conceptions problematic, in that they are no longer suited to the current Egyptian context. They are now proving to cause difficulties in practice, as the roles and responsibilities in the Egyptian family are radically changing.9 Furthermore, they clash with contemporary sensibilities and understandings of equality and justice. They are also inconsistent with Egypt’s international legal obligations as a signatory to CEDAW.

2. The frames of reference

In their effort to reform these laws, NGOs find that it is important to identify their marjiʿiyāt, that is, the sources and frames of reference for their legal reform. Identifying ‘references’ constrains the demands that NGOs can make. This is especially pertinent when attempting to reform a law that most people today believe to be divinely ordained. For example, a human rights reference will not enable NGOs to demand that women have the equal prerogative to physically discipline their husbands, but will enable them to demand equality between men and women in their right to bodily protection. A ‘traditional’ Islamic reference would not give space for NGOs to demand the abolition of the wife’s duty of obedience to her husband, but what the NGOs call an ‘enlightened’ Islamic reference would. Therefore, NGOs’ choice of references is fundamental, because it will set the parameters of the demands they can make, and determine how convincingly these can be supported.10

The interviewed NGOs mostly identified three references that guided their work on the reform proposal:

(1)   The lived realities of Egyptian women who suffer under this law.

(2)   An enlightened Islamic legal discourse.

(3)   International human rights law treaties and conventions.

Regarding the first reference, which NGOs termed the ‘lived reality reference’, it appeared, from their day-to-day work providing legal and other services to their constituencies, that there were serious problems faced by women because of the law. These include: limited grounds on which women can ask for divorce as opposed to men; court cases taking too much time when women file for a divorce (up to seven years); the procedural difficulty of their proving harm to get a divorce; the fact that the law only allows a woman to ask for maintenance arrears for up to a year prior to the date of filing the lawsuit, and not from the date the husband stopped paying; the lack of enforcement of maintenance verdicts in favour of women; the abuse of the obedience clause in the law by husbands to spite wives’ seeking separation; and the economic hardship faced by women who no longer have access to the custodial home or custodial fee after the child’s custody is completed, and end up in the streets with no shelter.

In fact, the problems faced by women due to the law are the reason NGOs began taking action in the first instance. The suffering caused by the law was a loud and clear message that there was a need for change. NGOs therefore commissioned several studies to gather statistics and data that would reflect women’s suffering and the cost to society, to bolster their argument and gain legitimacy for their work.11 This reality reference was a strong uniting force for NGOs, but when it came to the remaining two references, religion and human rights, the discussion on adopting them was not so consensual. The NGOs studied recognise that, legally and socially, family and marriage relations are fundamentally ruled by religion, as is stipulated in the law (Article 3 Law 1/2000).12 Hence, any current attempt at reform will inevitably have to address religion, notwithstanding the sensitivity of this subject.13 Moreover, some of those interviewed regard themselves as observant Muslims who respect the principles of Islam, and see no contradiction with human rights conventions and no problem in having family relations governed by religious principle.

In early 2007, at the outset of the network’s work on PSL reform, member NGOs decided to discuss what the main reference for their joint work should be. Was it only to be international human rights conventions – as it had been in the early phase of the network’s formation (since 2005) – or was it also to include religion? Some NGOs only wanted to have a human rights reference. Others thought this would be detrimental to their work, due to the Western/colonialist stigma that human rights carried in Egyptian society. It would also be unrealistic, since the law itself was based on religious principles. One of the NGOs holding the latter view threatened to withdraw from the network if the religious reference was not included. They felt the network would be throwing itself into the fire, exposing itself to great risk from state and society. At the same time, another opposing NGO warned the rest that ‘it is not useful to create the monster and scare ourselves with it’ (i.e., it was not useful to avoid referring to human rights because of the assumption that such rights would not be accepted at large).14 After much discussion and mediation, the compromise was finally reached that the references would be both human rights and ‘enlightened’ interpretations of religion.

However, no discussion took place on defining what the word ‘enlightened’ might mean. When asked during interviews, most NGO representatives took it as meaning gender-sensitive Islamic interpretations, but no details were agreed upon collectively. It seemed that all assumed at the time that there was agreement on what ‘enlightened’ was, but later on, in the course of my fieldwork and the drafting of the NGOs’ law proposal, it became apparent that there was a divergence over what ‘enlightened’ religion’s stance was on thorny issues like financial guardianship of mothers over children, obedience, inheritance and outright prohibition of polygamy. One of the reasons for this vagueness could have been what both Dupret and Singerman describe as a tendency of Islamic law to lend itself to changing and re-imagined meanings across time, space and persons.15 ‘Enlightened’ may mean different things to different people, each of whom will be able to support their understanding just as validly from the multitude of different Qurʾanic verses, their interpretation and the rich jurisprudence around these verses.

As a result, it was not clear which frame of reference would take precedence in the NGOs’ joint work in case of a contradiction. What if human rights conventions gave women certain rights that religion, even if enlightened, took away, and vice versa? A case in point is lesbian women’s rights, which most of those interviewed opposed, principally on religious and cultural grounds. Inheritance was another contentious issue, which most NGOs did not seek to change. It seems that there was an underlying assumption that ‘enlightened’ religion would naturally be in accordance with human rights conventions, and that the possibility of contradiction between the two was minimal.

Another important and related point that became evident was that not all NGOs were for total gender equality, as stipulated in human rights documents. As with ‘enlightened’, the definition of ‘equality’ proved elusive and differed from one person to another. The equality sought in human rights conventions sometimes seemed to clash with conceptions of equality that different NGO activists held in light of what they perceived as religion. Some even found that the kind of equality promoted in the human rights discourse included elements potentially harmful to women in Egypt. For example, the silence of NGOs on certain issues discussed below, such as the husband’s obligation of maintenance, illustrates the clash of these two conceptions of equality within NGOs. As the work of the NGOs shows, judgment on religion or human rights cannot be reduced only to how each addresses equality. Each discourse has its importance and value in this particular context, and each was subject to a multitude of factors that affected its appropriation by NGOs. It became evident during my fieldwork that the meanings of ‘enlightened’ and ‘equality’ were determined by a constant process of negotiation between NGOs, as will be shown below.

To conclude, this discussion of references amongst network members showed that NGOs were well aware that the choice of references would dictate what demands they could make for the reform of the PSL; the issues on which they must be silent; the justification behind these demands; the public image of NGOs in the eyes of state and society and the general societal acceptance of their demands.

This discussion was also important because it highlighted how NGO activists seem to regard human rights and religion as frames of reference for their demands. First, they seem to think that religion gives more credibility to their demands. A human rights framework does not appear to share the credibility of a religious framework in the eyes of Egyptian society or even some NGO activists. However, a traditional religious framework, as opposed to an ‘enlightened’ one, is less accommodating to the kind of equality for which NGOs plead. Second, most NGOs find that more effort needs to be spent on reinterpreting Islamic sources in a different way from traditional classical jurisprudence. Nevertheless, most NGOs agreed that addressing religion was indispensable to their PSL reform work.

3. The religious discourse: Islamic feminism

When asked to describe the role of the religious discourse in their PSL reform work, all interviewees appeared to be talking about ‘Islamic feminism’. I define ‘Islamic feminism’ here in its widest possible sense, recognising that it holds different meanings for different actors and locations. Agreeing with Ziba Mir-Hosseini,16 I define it as an awareness of the injustice inflicted upon women because they are women, and the will to do something about it, whether in the form of new knowledge production, or advocacy and activism, or all of these. I use the word ‘Islamic’ here to mean that this effort finds inspiration and justification from Islam and its sources, guided by the principles of justice, equality and the preservation of human dignity found in the Qurʾan and the practices of the Prophet.17 This was what most of the interviewed NGOs were attempting to do, to varying degrees, but without labelling their efforts ‘Islamic feminism’. Abou-Bakr’s general description of Muslim feminist scholars and activists,18 ‘who are not just “critiquing [i.e. attacking or deconstructing] Islamic history and hermeneutics”, but are also providing alternatives and seeking solutions inspired by Islamic values’, applies to the activists studied here.

Most of them began taking action to reform the law because of the problems they found in reality from their work on the ground.19 They went on to find considerable support for their demands in the human rights and reality references, and some support in religion.

Many of the interviewed NGO activists see themselves as believers of the Islamic faith. Most of them personally find that Shariʿa’s basic principles are antipatriarchal and, hence, are in congruence with human rights principles. For these activists, it is the fiqh (jurisprudence) produced by scholars in the classical era that contains patriarchal elements, echoing the social context of its production. That is why, throughout the course of their work, some of them try to clarify the distinction between Shariʿa, the work of God, the eternal divine message contained in the Qurʾan, which does not change with time and space; and fiqh, the work of man, which encompasses the changeable human attempts at understanding this message. This group finds the distinction useful because it allows them to advance a new fiqh, which reinterprets the main sources of Shariʿa. However, during the interviews, I sometimes noticed a difference between activists’ definitions of both Shariʿa and fiqh. Some of those interviewed felt that what are perceived to be clearly written verses in the Qurʾan can constitute unchangeable Shariʿa and hence are not subject to human interpretation (such as those on polygamy and inheritance, as explained in the ‘Examples’ section below).20 Others disagreed, arguing that interpretation of these so-called definitive verses should be permissible and uninhibited.

These latter cite several incidents where the rulings of clear-cut verses were suspended by ʿUmar ibn al-Khattab, the second caliph, because in his context they no longer served their purpose (maqṣad

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