Dossier 22: The Need to Unify Personal Status Laws in Arab Countries
Publication Author:Sami Awad Al-Deeb Abu Sahleya
|Word Document||136.5 كيلوبايت|
number of pages:168
The Current Status
The current status of personal status laws in Arab countries have three distinct flaws: the absence of a unified law, the absence of equality between men and women, and the absence of equality between people of different religious denominations. We shall speak briefly of each to explain.
1. Absence of a unified law and legislation:
To understand this point, we must show the reader what the current status is in a country like Switzerland, where there are different religious groups, all of whom have the Swiss nationality. There are Christians divided into sects, the most important of which are the Catholics, Protestants and Orthodox, and there are the Eastern Jews and Western Jews, and then there are Muslims of different denominations the most important of which are the Shi'a and the Sunni. Additionally, there are also a number of smaller Denominations and sects whose origins are either Eastern or Western such as Bahais, Yazidis and the Druze. There are also those who refuse to belong to any religious denomination.
We may therefore say that Switzerland has at least twice as many religious groups as any Arab state, but in Switzerland there is only one law that governs matters of personal status (marriage, divorce, custody, inheritance and guardianship). This law is amended by the Swiss parliament from time to time to be more just and suitable to society. In cases of disputes among the Swiss in personal status matters, they all resort to the same courts whatever their religion, because in Switzerland there is one law and one judiciary.
If we go back to our Arab world, we shall find that its legal and judicial system are inherited from past ages with very slight differences from one country to the next. They may be categorized as follows:
- Some countries have neither a written personal status law, nor a unified one, and they do not even have unified courts for Muslim citizens. In Saudi Arabia, the Emirates and Bahrain, courts are still divided between the Sunni courts and Shi'a courts, and both have no written laws but instead depend on the old fikh (jurisprudence) books.
- In some countries such as Palestine, Lebanon, Jordan, Syria and Iraq, there are still different courts for different religions. In Iraq, for example, the law recognizes 17 denominations with their own laws and courts.
- In Egypt, the denominational courts were abolished after 1955, but the denominational laws remained for Muslims, Christians and Jews. The personal status for Muslims is not governed by one law, but by several fragmented and incomplete laws that force Egyptian courts to resort to very old fikh books, especially those prepared by Kadri Pasha in the previous century.
- In Tunisia, since 1956 all citizens have been governed by one law and one court which are the State courts. However, the personal status laws in this country kept some principles that differentiate between the different denominations and sects. It allows the marriage between a Muslim man and a non-Muslim woman, but does not allow the marriage of a Muslim woman to a non-Muslim man. It also prohibits inheritance between Muslims and non-Muslims.
We may also note that it is very difficult to research any denominational or sectarian laws. Religious courts rarely publish their verdicts, and articles of personal status for non-Muslims are almost never taught in Arab universities, almost never written about, and virtually unknown. To appeal against some of them, especially the Catholics, one must resort to a higher court outside the state.
Some might consider this system an expression of religious tolerance, but such a system has its drawbacks, because it amounts to going beyond the state's sovereignty in the law. It also emphasizes divisions within the state that decrease the feelings of citizens of belonging to their country, and weakens the spirit of solidarity within a society. Making societies strong requires this solidarity, without which the strength of a group will not be accomplished. Such divisions also encourage the loss of people's rights which will not be achieved except through a knowledge of the laws that govern them, and therefore fall prey to the courts, especially when there is a relationship between individuals belonging to different denominations or sects, which requires resorting to different courts and different verdicts. Even more dangerous is that the system used is most often biased towards those belonging to its denomination and against those who do not, which is contrary to the principles of human rights as we shall see later.
2. The inequality between men and women:
It is no secret that the personal status laws in the Arab world are the laws that mostly emphasize inequalities between men and women. If we talk about Muslim laws as the laws of the majority in the Middle East, we shall notice the following:
- Some Arab countries have tried to limit the phenomenon of marrying little girls at young ages or marrying much older men, or marrying girls forcefully without their consent. But those phenomena are still widespread in several Arab countries, especially those countries without written laws preventing the practice.
- All Arab countries except Tunisia allow polygamy, although some countries have tried to halt this practice. Naturally, those laws prevent women from polyandry. This is completely contrary to the principle of equality, especially because a man's marriage is without the consent of his wife.
- All countries except Tunisia allow a man to divorce his wife without justification, but a woman who demands divorce has to convince the court in order to get rid of her husband.
- A Muslim man has the right to prevent his wife from going to work or even leaving the house. She may not travel without his permission. A woman, of course, has no right to object to her husband's going to work, travel or simply going out. A husband's wages are solely his own and if he divorces his wife she has no right to his money except what he promised to give her as dowry, though the courts may allow her certain expenses for a short time.
- In inheritance, a woman gets half of what a man gets, and this is true even in Tunisia.
3. Inequality between members of different sects:
We have noted the following:
- A non-Muslim may become a Muslim, whereas a Muslim may not change his religion or even express a religious opinion that is different from what is generally agreed upon. Anyone who dares contradict this principle is considered an apostate and thrown in prison, or is killed if he cannot escape to a foreign country. He is also separated from his wife and his money is distributed to his relatives as if he were dead.
- A Muslim man may marry a non-Muslim woman who belongs to one of the three religions, while she may still belong to her religion if she does not wish to embrace Islam. But a man who is of another religion may not marry a Muslim woman without becoming a Muslim. The non-Muslim who marries a Muslim woman without changing his religion has an illegitimate marriage and can be separated from his wife by force. Some even demand the murder of the man.
- In the case of a mixed marriage between a Muslim man and a non-Muslim woman, their children are considered Muslim even if they decide otherwise. Children have no right to change their religion even when they become older, and if they do, they are considered apostates. Arab laws do not acknowledge freedom of religion and choice.
- Arab laws prevent inheritance between a Muslim and a non-Muslim. In mixed marriages, a Christian wife may not inherit the property of her Muslim husband, and a Muslim husband may not inherit the property of his Christian wife. The Muslim children may also not inherit the property of their mother. If a Muslim becomes an apostate, then his Muslim relatives take his money, but if a Christian becomes a Muslim, his Christian relatives may not inherit anything after his death.
This status is not only a source of discrimination against Muslims and men, but is also against the principle of freedom of religion in general which is the basic principle to protect the dignity of individuals. Denominational and sectarian identity is often not based on conviction, but is simply a necessity to exercise basic rights in personal status. Those who do not want to belong to any religious sects because they have no religious convictions have no rights at all. They may not marry or inherit property. That is how religion becomes a kind of thorn without moral value that threatens the rights of individuals, and will threaten society sooner or later. But how do we get out of this legal and religious impasse?
Changing the current situation
We mentioned that Egypt unified the courts but did not unify the laws. Although this is considered an important step, it is still incomplete, because it did not achieve equality between men and women or individuals from different sects or religions. It also legitimized legal chaos and protected sectarian laws. Egypt tried once to bypass this problem after unification with Syria in 1958. A committee was formed to draft a unified law for all non-Muslim sects, but it was never issued. Even if it had been issued, it still would not have improved the legal chaos because it would not have solved the problem of equality between men and women or members of the different sects and religions.
We saw in Tunisia that the judiciary and the legal system are unified. We may consider Tunisian law an important step in solving the problem of equality between men and women by preventing them from divorce at the will of the husband, without resorting to courts and preventing polygamy, but those laws neither solved problems of inheritance nor the problems of individuals from different religions and sects.
The Arab League tried once to unify personal status laws. The Council of Arab Justice convening in Kuwait in 1988 approved a draft law for an Arab unified personal status law. It was drafted by a committee of seven men, without any participation from women or individuals belonging to different religions. This project is considered an important step for countries that have not yet made any personal status laws for Muslims such as Saudi Arabia, the Emirates and Bahrain, or those with laws that are not unified, such as Lebanon and Syria. But this project is considered a grave Arab mistake because it disregards the principles in the Tunisian law specifying equality between men and women, and it also did not present any solutions to the problem of religious inequality.
Here we must discuss an extremely important movement by a group of women from Tunisia, Algeria and Morocco who called themselves the '1995 Group for Equality'. They issued a document called 'One hundred changes for legislation in the spirit of equality in the matters of personal status and family laws'. Members of this committee included a practising lawyer from Tunisia, a professor of law from Tunisia, another professor from Morocco, a female Algerian lawyer and a male Algerian lawyer, all of whom are Muslim. This document was presented to the Beijing Women's Conference in 1995, and Asma Khidr, a Christian lawyer of Palestinian origin presented the document. Khidr was born in Al-Zababda village from which I myself come. She now works as a lawyer in Amman and is the director of the Al-Haq Centre in Ramallah.
This document did not discuss the diversity of personal status laws, because this problem is not as important in the countries of the Maghreb as it is in Egypt and other Arab East countries (Palestine, Jordan, Syria, Lebanon and Iraq). It merely discussed the problem of equality between men and women, and problems between the different sects and religions. Appended to that document were clauses explaining the principles on which they based their document. Its aim was to convince the Muslim male that the document is not contrary to Islam.
I urge all Arab countries, including the Palestinian authority, to unify all courts and cancel all sectarian-based personal status laws, substituting them for this document which is considered the most important document presented in this matter that coincides with the principles of human rights.
Acknowledgement: This article was first published in Peoples Rights Women's Rights: A Quarterly Women's Human Rights Journal. No. 3. Dec. 1996. and is reproduced with prior permission from Peoples Rights.
Legal Research and Resource Centre for Human Rights,
7 Al Higaz St., Roxi,
Heliopolis, Cairo, Egypt.
* July 16-31, 1998 (November 1999)
 'One hundred changes for legislation in the spirit of equality in the matters of personal status and family laws' Collectif Maghreb egalité 95 / Cent messures Collectif Maghreb Egalite (reprinted by WLUML).