Yemen: Does Shari'a Oppose the State Law on Marriage?

Yemen Today
In addition to family law, another site of tension between the state and religious groups is the constitution.
The law has no basis in Shari’a ... Our constitution stipulates that all legislations must be derived from Shari’a.” Hence, “the law is unconstitutional and must be retracted.” This was the line of reasoning adopted by religious groups against a law recently passed by the parliament.
In and of itself, this argument stands completely logical and valid. But when the law in question is one that aims at ensuring the welfare of society by setting a minimum marriage age of 17 for girls and boys, the above argument becomes unacceptable as it goes completely against the fundamental ethos of justice that must govern our reasoning. Appalling as they are, such reactions by the supposed mantle-bearers of Islam come as no surprise when one is familiar with their historical precedents.

Historical Precedents

The earliest concerns expressed by religious figures over the advancement of women in Yemen began in the 1930s. Responding to emerging desire among Adeni families to educate their girls, clerk Ahmed Mohammed Saeed emphasized (and set what later became a social convention) that girls must only be educated in religious studies and matters suitable to their “nature,” in order for them to become more adept “wives and mothers of the future.”

Two religious figures, both graduates of Al Azhar University in Cairo, became dominant voices in the 50s and 60s against women’s public participation in Aden: Sheikh Mohammed Al Bayhani and Sheikh Ali Ahmad Bahamish. Al Bayhani published a book in 1950, “Ustadh Al Mar’a”(“The Woman’s Teacher”), in which he upheld conservative views on several topics concerning women. Between 1948 and 1950, Bahamish published a religious and social newspaper “Al Dhikra” (“The Remembrance”) which was the mouthpiece of the Islamic Welfare Society. One of the paper’s editors wrote in 1950, responding to discussions of granting political rights to women: “I say it…and I say it with strong emphasis: The woman is a creature for the home only; if granted alleged political rights, then woe to the men. Woe to them from a coming era.” During the same period, a religious figure in Sana’a, Abdul Wasi’i Al Wasi’iy, published the book, “Al Burhan wa Al Hujja Fi Wujoob Ta’at Al Zawja” (“The Proof and Argument for the obligation of the Wife’s Obedience” [to her husband]), preaching similar conservative views on women’s social roles and duties.

An incident that caused great outrage among religious groups was when, in 1959, six female activists removed their veil and marched down the streets of Aden, rebelling against what they perceived as backward and hindering traditions. Not only did religious figures strongly protest, they declared an emergency meeting and, interestingly, approached the British colonial authorities for help in containing what they perceived as the beginning of moral chaos (The British refused to interfere). When journalist Mahia Nagib founded the female journal Fatat Shamsan (“The Maiden of Mount Shamsan”) in 1961, religious groups and mosque imams in Aden mounted a campaign against the journal, threatening its founder and accusing her of blasphemy. And in 1969, they assaulted judge Hamida Zakaria, who had also been running a family program on TV, opposing her appointment as a judge and deploring her appearance on TV as causing fitna (moral disorder).

The socialist regime in the south provoked further religious opposition during the 70s with its radical social and economic policy measures that aimed at empowering women, especially its secular 1974 Family Law. This caused outrage among many Yemeni conservative and religious groups, not only within Aden, but even within Yemeni communities based in Saudi Arabia who reacted by broadcasting their opposition and demonizing the socialist regime through radio stations. The mid-70s in the north also witnessed a rise of Islamist opposition to organized women’s activity. In 1974, a group of Islamists took over and closed down the Yemeni Woman’s Association in Sana’a, which had been providing basic literary lessons, craftwork training, and running a radio Family Program. The Association remained dysfunctional until it was re-opened in 1979 by activist Raufa Hassan.

The Islah Party and other conservatives managed to influence the 1992 Family Law which was only a slightly improved version of the conservative northern 1978 Family Law of the former Yemen Arab Republic. In the same year, Islah organized a huge conference where several unsigned working papers addressing the woman’s questions demanded behavioral codes for women, including hijab, separate educational facilities, and restrictions on travel without a male guardian. In 1997, a new conservative and regressive family law draft was secretly proposed and passed in Parliament without notice, but women later persuaded the president not to sign the bill. The Women’s Studies Center at Sana’a University was ransacked, closed down, and its director threatened, by religious groups in the late 90s. More recent examples include the 2008 fatwa issued against calls for facilitating women’s political participation through a quota system and the fatwa issued last month against the minimum marriage age set by the Parliament.

In light of the brief historical survey above, the recent efforts by religious groups to retract the marriage age law come as part of a continuous effort to employ religion in defining women’s social and political realities. One common underlying rationale that informs religious and conservative reactions is the assumption that women’s roles are pre-defined according to their nature or biology. Hence, women’s education, work, public participation, and other life opportunities, are made subject to this socially constructed rather than naturally determined constraint. Another common rationale (or rather, fear) is that allowing women to practice their full autonomy will lead to social disorder and chaos. There are also the readily hurled accusations of blasphemy and/or association with ill-intentioned Western agendas at anyone who voices disapproval of the status quo.

Focus on women and gender relations

Regarding the recent marriage age debate, Assistant Secretary-General of the Islah party Mohammad Assadi said that “marriage age is an Islamic rule and political parties cannot intervene in such affairs.” As we notice from this statement and from past incidents, there has always been a particular effort by religious groups in Yemen to influence the family law. More specifically, to ensure that it remains closely governed by the Shari’ah, as opposed to other areas (such as education, business, or labor) that regularly, and with no objections, undergo amendments that are largely secular in nature. This persistence of governing matters related to women and gender relations by Islam is best explained by Eleanor Doumato: “The woman issue has assumed a place of unprecedented importance in the definition of Islamic values and Islamic behaviors, mainly because in the rush of development and the infusion of Western culture, there is little else of symbolic value that is so visible, and no other group in society whose behavior can so easily by controlled, and no other challenge to religious values that threatens male identity or affects people’s lives so personally.”

Arbitrary Shari’aism

One of the main arguments presented during the recent marriage age debate was that “marriage age has no Islamic basis” and that “setting a marriage age for girls is [therefore] a restriction of what Shari’a permits.” Indeed, religious scriptures are silent on marriage age, just like they are on many other daily matters. But what’s interesting is how this silence in the case of marriage age is arbitrarily interpreted as “permission” by Shari’a. This arbitrary Shari’asim with respect to family laws, along with the constant assertion that such laws are divine and immutable, presents a central challenge to those attempting to reform family laws. This challenge is particularly powerful because such religious efforts, according to Amira Sonbol, “represent a patriarchal hegemony that is supported by traditions, conservative clerical classes and state power structures.” We must realize that Muslim family laws are the products of socio-cultural (often patriarchal) assumptions and juristic reasoning about the nature of relations between men and women. They are, as Mir-Hosseini asserts, “man-made juristic constructs, shaped by the social, cultural and political conditions within which Islam’s sacred texts are understood and turned into law.”

Patriarchal interpretations of Islam, or Shari’a, and their portrayal as sacrosanct, have a long historical tradition that is not only particular to Yemen. Two sets of explanations for their existence (and persistence) are found in Islamic feminist (and no, this not an oxymoron) scholarship. They are best summarized by Ziba Mir-Hosseini: “The first set is ideological and political, and has to do with the strong patriarchal ethos that informed the classical jurists’ readings of the sacred texts and the exclusion of women from production of religious knowledge, and their consequent inability to have their voices heard and their interests reflected in law. The second set of answers is more epistemological, and concerns the ways in which social norms, existing norms, marriage practices and gender ideologies were sanctified, and then turned into fixed entities in fiqh. That is, rather than considering them as social, thus temporal institutions and phenomena, the classical jurists treated them as ‘divinely ordained’, thus immutable.”

Expedient Constitutionalism

Conservative and religious groups in Yemen have always had an ambiguous relation with the state. Their recognition of state legitimacy fluctuated with the degree to which they perceived the state as serving their interests. Arguably, the biggest fear of those groups is that the state and its goals becomes a higher authority than religion and the kin group, particularly in matters pertaining to women’s status, as had happened during the southern socialist regime. In addition to family law, another site of tension between the state and religious groups is the constitution. Pre-empting the total loss of their long held authority to the state, religious and conservative groups assured that the new 1990 post-unification constitution made Shari’a as the sole source of legislation. This was further emphasized to the public masses, during the 1992 Islah conference, through slogans such as “The Quran and the Sunna Supercede the Constitution and Laws.” Then, in 1994, another layer of assurance was created with the addition of Article 31 to the constitution declaring: “Women are sisters of men.” This article upholds the authority of the kin group and perpetuates the cultural norm that typically regards females as inferior and subordinate to their male siblings and relatives. Today, with enough comfort in the authority guaranteed to them by the constitution, religious groups seem to recognize the legitimacy of the state and its constitution like never before. So much so that, in addition to claims of Shari’a non-compliance, claims of constitutionality, or otherwise, have become an expedient recourse for religious groups (like we’ve seen in claims of the marriage age law being unconstitutional).

Towards a “good life”

Shari’a, in its religious usage from the earliest period, as Fazlur Rahman notes, has meant “the highway of good life”. And indeed, Shari’a court records from the Ottoman Empire reveal how people had faith in the “good life” Shari’a assured them. As Amira Sonbol asserts from her studies of those records, “the system was flexible and provided an avenue for the public to achieve justice and litigate disputes rather than to enforce a particular philosophy of social laws and norms formulated by the State.” It is time that we re-establish this purpose of Shari’a, or any governing system for that matter. We’ve mastered the skill of deploying our constitution expediently and our Shari’a arbitrarily. Let us now learn to use this skill towards achieving humane and truly Islamic goals of equality, integrity, welfare, justice, and “good life,” for all Yemeni citizens.

April 2009

By Amal Al Ashtal

Source: Yemen Today