Codifying Personal Status Law

25 Oct, '04

There are big discussions doing the rounds in the papers this week regarding the uncodified nature of the Personal Status Law spread primarily by two national polls; one sponsored by the Supreme Council for Women executed by the Bahrain Centre for Studies and Research while the other more arbitrary by Al-Wasat using SMS responses to questions posed in the paper.

The bottom line is that Bahrainis generally want to codify Personal Status Law for various reasons, one of which is the inordinate amount of time that family cases take in the court system, and the unsatisfactory nature of judgements as they are made by a judge’s personal interpretation of Islamic Shari’a Law rather than written down code and rules.

The Personal Status Law covers marriage, engagement, marriage rights which include dowry, divorce, legal separation, alimony, child-rearing, wills, inheritance, and other aspects of family existence.

The results of the poll commissioned by the Supreme Council for Women were released on October 23rd, 2004 – 1,300 persons polled from various walks of life and locations in the 5 governates in Bahrain (meaning covering both Sunnis and Shi’as.) The results are interesting:

1. 41.2% of Bahrainis do not know enough about family laws and rites
2. of those who favour the codification of Personal Status Law 56.08% were women and 43.92% were men.
3. However of the people opposing such a law, 64.38% were men, and 35.62% were women.

As to the method and sources of this codification, 97% of people polled agreed that Personal Status Laws should be based on Islamic Shari’a Laws. 53.6% want a committee of clerics, religious scholars, lawyers and noted civilians to codify these laws, while 45.9% want that role to be restricted only to clerics and religious scholars.

The Al-Wasat SMS poll is quite interesting too. They didn’t publish their readership demographics but we can assume that most of their readership are Shi’a communities and it is also reasonable to deduce that this SMS poll in its respondents majority were Shi’a.

They received around 500 messages for their poll. The questions put were

1. Accept codifying the Personal Status Law through the parliament (19%)
2. Accept codifying the Personal Status Law through the parliament ONLY WITH the religious scholars’ blessings (35%)
3. Do not accept codifying the Personal Status Law through the parliament (44%)
4. Unsure (2%)

It’s quite interesting to see that the majority of respondents are actually WITH codifying Personal Status Law (19% + 35% = 54%) and even giving parliament the right to do so, albeit with the blessings of the scholars, but the essence is that the majority see the need for such a law as very necessary.

The fly in the ointment of course is that various Muslim sects have interpreted Islamic laws differently. But at least as far as this issue is concerned, there seems to be a consensus by the Sunnis with their 4 sects who have formulated a single law that they all are subjected to and have agreed to abide by that law. It still has to go through parliament championed by the Al-Menbar Islamic Bloc.

The Shi’a (clerics and scholars) on the other hand are very widely split (from Al-Wasat’s poll we can reasonably deduce that the Shi’a people have no problem accepting such a law). Four forces rule the Shi’a roost in Bahrain: Shaikh Essa Qassim, Shaikh Hussain Al-Najati, Shaikh Hameed Al-Mubarak and Sayed Abdulla Al-Ghuraifi.

Against the codification are Essa Qassim and Abdulla Al-Ghuraifi, correctly stating that in Shi’ism a person can decide who they want to “emulate,’ that is, which of the Shi’a marja’iah they follow and based on that decision, the rules and laws applying to that Shi’a person might be different than another person following another marji’. And as both Qassim and Al-Ghuraifi refuse to be part of the court system, the only way for them to influence their congregation and people is through their sermons.

The four scholars have made attempts in the past to sit together and come out with a unified stance as to the Personal Status Law issue, but it seems that their differences were too much to even out, hence the issue was left hanging.

Al-Menbar’s Dr. Salah Ali did visit Qassim at his residence after Oct 15th when the latter launched a very spirited attack on the Personal Status Law and specifically his complete objection that parliament is to formulate it stating that the only people capable of doing so are clerics and scholars as they are more cognizant of Islamic laws and interpretations, rather than a parliament of civilians. He went as far as threatening that if the parliament dared to do so, then he will declare it (in not so many words) apostate and that it serves people other than the people of Bahrain.

MP Mohammed Al-Shaikh toed the line and further suggested in an interview with Al-Wasat newspaper that if parliament was allowed to codify Personal Status Laws, then what guarantees are there that at some point in the future Socialists get into the parliament and change the law as they wish? Far fetched but Al-Shaikh is famed for theatrics.

Al-Menbar have now given up their attempts to convince the Shi’a to be included in the dialogue and come out with a single set of rules for both major sects, and they’re going it alone for the Sunni sect where their formulation of Personal Status Laws will not apply to Shi’a or Ja’afari Courts.

And the loser in all this? Women! Men have nothing to fear, we just divorce, go to court and waltz out with ridiculous judgments like alimony set at BD30 ($79) per month, keep the children if they’re over 7 years old, don’t have to provide a home to the ex-wife and her children and the likes of this. There is almost no way for a woman to divorce her husband, there is no way for her to keep the children against the father’s wishes, there is no way for her to demand a higher alimony.

Yet, we find that women are actually AGAINST such a law! 35% of the people opposed to codifying the Personal Status Law are women! Is this a case of chopping off the nose to spite the face? Or did they just not understand? Or even worse, they completely agree that men are better than they are, hence should be exempt from these familial responsibilities?

I just cannot understand this at all, and I am joined by non other than Amira Al-Hussaini who have written about this subject in today’s GDN. (click “read more” at the bottom of this article to see her comment.)

In conclusion, I fully support the codification of Personal Status Law, and as soon as possible. I have seen and heard of horrific stories of irresponsibly of ex-husbands basically torturing their wives but walking away from it with hardly a slap on the wrist. I have heard of judges abusing their power, even as far as granting a woman a divorce only if she agrees to marry them for a few days (short term marriage in the Shi’a faith is acceptable and legal, this is called muta’a and is highly contentious even between Shi’as themselves.) Apart from all this, and more important, as there is no written code, judges are left to decide cases on their own basing their decision on their own personal interpretation of the law which invariably create a multitude of unsatisfied and bitter families. Now put this power of interpretation in the hands of incompetent or corrupt judges and you have a recipe for disaster.

It is high time that this situation is corrected.

If the scholars (that includes the above mentioned four gentlemen as well as surprisingly Adel Al-Mo’awdah who came out in support of Qassim during his Friday sermon a couple of days ago – wonders will never cease!) have a problem with that, then why not let people themselves choose at the time that they marry what authority they want to be subjected to? Religious Shari’a courts or Civil Courts and be done with it?

I think that the scholars might well have a point in that they are afraid that people will muddle up Islamic laws and norms because they don’t know how to interpret them very well, but what’s the alternative if they themselves can’t get their act together and get the code written? Not doing anything and keeping the current status quo is criminal and completely out of touch of today’s world.

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Comments (7)

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  1. fawzyah says:

    Codifying Personal Status Law

    Why don’t we read http://odur.let.rug.nl/~usa/D/1776-1800/paine/ROM/rofm04.htm and wonder how far we have come since 1761?

  2. fekete says:

    Codifying Personal Status Law

    Mahmood ..

    Do we know how it was done in Iran or in any of the Moslem states? I am sure that they faced some of the same problems that we are facing – including the resistance of women as well as the unification of sunni-shia codes. My personal thoughts are that the more women realize what it means, the less likely they are to oppose it. It is an education and a communication game .. which our beloved fundies love because their power comes from ignorance ..

  3. mahmood says:

    Re: Codifying Personal Status Law

    Iran has codified its Personal Status Law more than 75 years ago and even after the Islamic Revolution the basic law was not touched.

    Iraq has had a Personal Status Law for quite some time too. After Saddam was toppled some clerics tried to reverse that and go back to Shari’a law but women came out in the streets and vehemently opposed that change until clerics rescinded and the original law was reinstated without changes.

    Morocco, Tunisia and Egypt have long established laws as well, Egypt’s is continuously being challenged but has held, while Tunisian law is probably the best there is in the Arab world with solid foundations and full rights given to women.

    The Emory Law School has a good section on Islamic Family Law at http://www.law.emory.edu/IFL/index2.html, I have not been able to find any Arab sites yet that deal with this issue as comprehensively, however I did get a link to the Egyptian law but am looking for the Tunisian in its original form as that is said to be the strongest.

    The Supreme Council for Women I think are doing the right thing here in commissioning this study and its results are surprising, even more surprising are the results of the Al-Wasat poll. Bahrianis understand that this law is necessary, but a large section of them are happy enough to sit on the fence until they are told by the mullahs that , yes, it’s ok to support it. Rather than supporting it outright because it is the decent and right thing to do.

    The Supreme Council for Women should engage in immediate dialogue with tolerant and open clerics like Najati in order for the clerics themselves to spread the message and urge their congregations to support the proposed law. It should also encourage leading journalists in the main Arabic dailies to write about it so that people get more and more information on which to base their decisions.

  4. mahmood says:

    Tunisia: Codifying Personal Status Law

    from Emory Law School : Islamic Family Law site:

    Tunisia
    History
    The Legal system is based on the French civil law system and Islamic law.

    As an autonomous province of the Ottoman Empire from 1574, Hanafi fiqh was influential, but never displaced the position of the Maliki school. Tunisia became a French Protectorate in 1881 and attained full independence in March 1956. The Law of Personal Status, inspired by unofficial draft codes of Maliki and Hanafi family law, was passed soon after independence. The TLPS was extended to apply to all Tunisian citizens in 1957, thus ending the application of rabbinical law to Jewish personal status matters and the French Civil Code to personal status cases relating to non-Muslim Tunisians. Among the most controversial provisions of the TLPS were those banning polygamy and extra-judicial divorce.

    Constitutional Status of Islam(ic Law): The Constitution was adopted 1 June 1959. Article 1 declares Islam the state religion, and Article 38 provides that the President of the Republic must be a Muslim.

    Court System: Shari’a courts were abolished in 1956. There are four levels of courts in the judiciary. Cantonal courts have limited criminal jurisdiction. Courts of first instance have civil, commercial, correctional, social and personal status chambers. Three courts of appeal (in Tunis, Sousse and Sfax) have civil, correctional, criminal and accusation chambers (the final one being similar to an American grand jury). The Court of Cassation in Tunis is the highest court of appeal, with three civil and commercial chambers and a criminal chamber.

    This is interesting reading as well: 1999 Country Reports on Human Rights Practices

  5. [deleted]0.01191600 1099323613.647 says:

    Codifying Personal Status Law

    Surely any legal system predicated on the Rights of the Child, would consign sharia, polygamy, and temporary marriage to the trash?
    This mystifies me. Why aren’t Muslim menfolk clamouring to have their children bestowed of the same statutory protection as their infidel contemporaries?

    Meggie

  6. anonymous says:

    Codifying Personal Status Law

    First I would like to thank you for a very interesting and innovative site, and would like to ask where I could obtain more information on the current stattus of the Personal Status Law, is it still in negotiation? what proposals have beeen made?

    Many thanks

    a friend from England

  7. Steelangel says:

    Re: Codifying Personal Status Law

    [quote]Why aren’t Muslim menfolk clamouring to have their children bestowed of the same statutory protection as their infidel contemporaries? [/quote]

    It’s traditional/religious. Mohammed didn’t allow adoption or foster care, for example, therefore those things are forbidden, even if they are better for the child than being stuffed into an overcrowded orphanage.

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