Episode Transcript
Speaker 0 00:00:00 Hello and welcome to Women of the Middle East Podcast. This podcast relates the realities of Arab women and their rich and diverse experiences. It aims to present multiplicity of their voices and wishes to break overdue cultural stereotypes about women of the Middle East. Season five is a collaboration between MUA and Women of the Middle East Podcast, as we will be discussing MU's latest book, justice and Beauty in Muslim Health towards egalitarian ethics and laws published by One World Academic in December of 2022. My name is Amel Malki. I'm a feminist scholar and an educator. This is Women of the Middle East Podcast. Hello and welcome to Women of the Middle East Podcast. Season five discusses the groundbreaking book, justice and Beauty and Muslim marriage. In this episode, we zoom into Section four law and practice and discuss two chapters in this episode. The first one is Muslim Family Laws, trajectories of Reform by Lynn Welshman, Ze J and Mawa Shain. And we have Dr. Mawa Shain with us today. Ura, lovely to have you.
Speaker 1 00:01:06 I'm very pleased to be with you today. Thank
Speaker 0 00:01:08 You. I would love to hear more about your connection with MUA and relationship that has led to this, uh, very interesting book.
Speaker 1 00:01:17 I, I was one of the very initial people who, uh, who built <inaudible> as a movement really since I was, since I was involved since 2006. Yeah. And, and it was launched in 2009. Uh, and really it's a movement of Muslim women who recognize the importance of Islam in the lives of women around the Muslim world, and realize also how Islam has been, uh, traditionally used not to give more rights to women, which was its original purpose really. But today it is being used to take away rights from women. And so we f we felt that, you know, something needs to be done about this. And so gradually this movement was formed to realize we're not the only ones. Millions around the world, women and men share that concern and purpose to bring in gender equality and gender justice from within, using our own heritage, our own Islamic jurisprudence and, uh, Islamic law.
Speaker 0 00:02:18 Definitely. And do you think that this brings, um, a different school of thoughts and different feminisms, uh, and Mina region closer to each other?
Speaker 1 00:02:27 I think so, yes. Uh, the word the label we like use is, uh, Muslim feminists because Islamists can have different connotations and understanding between people. So Muk itself holds within it. Feminists who are secular, yeah, they are religious people on a per private level, on a personal level, but they believe in a secular politics which says religion should not be involved in politics. And you find other women who are believing Muslim women and men, uh, who find inspiration, who find no problem that our constitutions might have references to religions as long as it respects basic human rights. And so it's a fictitious divide between secular feminism and religious feminism. For me, what matters is what are we both calling for? Are we calling for gender equality, gender justice, unapologetically, then we're both in the same boat as well, so, yes, absolutely. And we find this manifested in other regions in the world as well.
Speaker 1 00:03:26 So Malaysia, for example, you find the Chinese, the Malay, the Indian feminists in the same country coming together, no matter what religion, what beliefs in secularism or religion, they come together and they work together for the rights of women, men, children, and families. It's very important for us to work on Muslim family law because this law not only touches the private lives of women and obviously men and children, but in the case of women, it also touches the public life. So private life, the private sphere, it regulates for women who they can marry, when they can marry, who to obey when they're married, not herself, how much control she has over her own body, her relationship to her own children, you know, does she have the legal authority, for example, to open a bank account for her children to have an urgent medical procedure done for them, you know, determine what kind of education they will have or not.
Speaker 1 00:04:24 So that in the public sphere is serious, but also, sorry, in the private sphere, in the public sphere, the family law even regulates issues like basic rights. Like can she go out to work without the husband's permission? For example, can she issue a passport and travel? Can she run for office? Even if the constitution gives us the right, the family law might not be allowing us to do these things. You know, can she take a loan from the bank, sign contracts? Can she even sign her own marriage contract? Yeah. All without the permission of the male guardian. So really when you come to think of it, the family law is such an important locus of rights that determine whether women can enjoy them or not. The family law decides all this, whether women are to be treated as a perpetual minor only fit for housework and sexual pleasure of a man, or whether she's a full and equal citizen in our nation states.
Speaker 1 00:05:18 Now, what made us write this specific chapter was the fact that this law, out of all other laws in our legal framework, remains to be really the only one with such strong connections to Islamic Jewish students. Yeah, I'm saying Islamic Jewish students. I'm not saying Islamic Sharia. There's a big difference between both. And I will explain it in a second, but, so when you look at commercial law, phenal codes, administrative law, all kinds of laws, they have largely been secularized in the Arab world. Yeah. More or less. But it's the family law that still remains very much entrenched in, um, in Islamic jurisprudence. So this connection with religion should not really have posed a problem. Yeah, normally, but today it is posing a problem because we are conflating Islamic jurisprudence with Islamic China. Here. I would like to explain a bit the difference <unk> for Muslims.
Speaker 1 00:06:18 Muslims believe that Sharia comes from God. It is eternal. It is the set of values. It's a set of discourses, actually set of values that guide the way to a good life. And in this world and in the hereafter. Okay. Uh, for us it's a divine discourse. Yeah. That's why it's sacred. But for us to be able to understand Cher as human beings, we need to exercise our brain. Yeah. We, so we use our body actually <unk> through our eyes. We, we hear, you know, about the hadis through our ears. It goes to the brain, the brain works, and then it produces Islamic jurisprudential rulings, rulings like laws that regulates life in this world. So it's a very human process. It's not sacred. Islamic juris rulings is a, is not a sacred divine product. Rather it is a human understanding of the divine. And it's this Islamic jurisprudence that is the basis of our Muslim family laws today.
Speaker 1 00:07:23 The problem comes when we equate Muslim family laws with Sharia. It is not <unk> Muslim family laws are not God's words. They are the words of mostly men really, who have been trying to over the past 1,400 years to understand the divine message, the Sharia in their own way, in their own context, limited with their own standards and abilities of the time they tried their best to produce rulings that were good for society, good for women, protecting women, children, men and families, but for their time. And it's meant to be an evolving tradition. We have a very rich Islamic Jewish prudential tradition. We're very lucky actually. And you find this luck in how diverse our Muslim family laws are. So the Muslim family law in Egypt is very different than the one in Qatar, than the one in Malaysia, than the one in South Africa. Why? If it's the same area, if it's the same Islam, it's not supposed to be different, but it is different because we have this very rich jurisprudential tradition which each country chooses to draw from.
Speaker 1 00:08:33 Now the interesting thing is not only are we, we have these different jurisprudential traditions and different family laws, but also we have family laws that have evolved and changed over time. And this is why we wrote this chapter, because we are being told that these laws are divine, they are unchangeable, they are God's words. But this chapter really shows us how they are in fact, a human product. They are in fact, uh, an effort produced by humans to understand the divine message. And they have been evolving. We showcase in the chapter how these Muslim FAMs in all the Muslim world, not just the Arab world, has been developing and changing to suit society's needs to address serious problems we are facing today. They have to change. So that is why this chapter is, is there today to give inspiration, to give hope that we don't have to really look too much outside of us. We don't have to get rid of our roots to be able to find solutions. It is there. This conflation between Sharia and fuck is very important. And it's being misused actually by political groups, usually for their political power. But the who pays the price, it is us, the women, the families, the societies. And so we have to be very, very vigilant. That's why when I say Muslim family laws are not based on sharia, they are juris, prudential based laws. This is a very important distinction,
Speaker 0 00:10:06 Um, and lovely, and thank you for breaking it down for us, because this is very important for not just, um, women, but for activists and, and, and those who seek reforms. Uh, but still they're terrified of really touching on the sacred text. If you're a woman, you're, you've been silenced, you've been marginalized, you cannot even engaged with the sacred text because you're a woman. And this is why Muk is such, um, a catalyst in, in this area.
Speaker 1 00:10:35 I completely agree with you, and I think we are in the business of reclaiming religion again. Yeah. And let me just outline, because what you said is so important about people being afraid to do that. This is not a religious struggle. This is a political struggle. In fact, it has nothing to do with religion. Religion is being used for political ends, and the family law happens to be one of the weapons being used. Okay. And so we need to really have faith that no religion came for inequality, for injustice on the contrary. And so when we ask for the reforms of these laws, when we go back to the values of these religions, what we are doing actually is implementing this, the injunctions of our religion in the best way. We are reclaiming religion. We are bringing it back to its purpose. In fact, in a sense we are defending it.
Speaker 0 00:11:28 How have activists and reformers used religious based arguments and constitutional arguments to push for substantive change of religious based family laws or personal status codes? Um, can you give us an idea and, uh, what's your advice to them?
Speaker 1 00:11:45 So let me just start by saying that the research and experience on the ground is showing us that the main catalyst, um, driving change when it comes to any gender related law, uh, has been the woman's movement. In fact, you know, it has been the woman's movement that has been pushing, uh, making the case. If for example, a woman gets killed at the hand of the partner, you know, for whatever reason they take that case, they make an issue out of it, uh, they can, you know, provide statistics. They can lobby, they can campaign, you know, they provide possible proposals to reform the law. And the work of Haun and Weldon is very, very important. They studied more than 70 countries around the world for a period, I think, of 10 years. And they found consistently it has been the women's movement who has been pushing for any reform.
Speaker 1 00:12:37 So the state actually picks up the issue in the end, and it's the state that does the change, but it's always starts with the women's movement. Now, how has this happened traditionally in our own Muslim settings? So there are several ways. Number one, we find the Moroccan way, which is, uh, to change the whole law, the substantive law itself, like what Morocco did in 2004, they, there was a complete overhaul of the law. They built the reforms based on Islamic teachings, but also on human rights standards. And by the way, there, there aren't, it's not too much of a contradiction, by the way, between these two Islam and human rights. In fact, many people say that <laugh>, they are mutually, uh, beneficial to each other. So Islamic law, human rights, constitutional guarantees of equality and live the reality. So we have this holistic, substantive change of the law, another way of doing it, because sometimes it's very difficult to change the whole lobby.
Speaker 1 00:13:32 It's very sensitive. The Muslim family law is a very sensitive area, and not all countries are able to do it. So for example, the Egyptian way recently has been to change, make the change through the procedural law, like what happened in the year 2000. Hola, Hola is an Islamic practice. The prophet implemented a hollah divorce. I don't know how more Islamic you can get. And still it faced a lot of opposition from Muslims because it's giving women the right to leave a marriage that they don't want to be in. Basically what the Egyptian state did was instead of doing it through the substantive law, it did it through the procedural law. And you find other changes also through procedural laws, like in Malaysia, when they gave the guardian, the, the, the custodian mother guardianship, uh, for travel guardianship, for education, uh, for medical, um, procedures to the mother.
Speaker 1 00:14:27 Yeah. And then there's another way which we find in India, for example, and in Tunisia where the activists or the reformers go through the constitution, they show how the family law in certain aspects is going against constitutional principles and values and articles. So in India, they used it very recently in 2019, and we worked with them also. But really they have, they have done a brilliant job, the women, the Muslim women's movement in India to show that <unk> was unconstitutional, where a man could just say, I divorced you three times, not even in front of the wife, where he can even send it by text message and it's done. Yeah. Without the consent of the wife, without any procedure. So that was deemed unconstitutional and triple became banned in Tunisia in 2019. They used the constitutional, uh, argument to call for more equality between women and men in inheritance.
Speaker 1 00:15:27 And in fact, they even used Islamic jurisprudence to justify this call for change. And then you have the final way of doing it, which is to go through other laws completely like the child's law. For example, in Egypt in 2008, the child law, uh, gave the custodian mother educational guardianship. So she's able to make decisions, educational decisions, on behalf of her child. But also importantly, it set the minimum age of marriage. It said the children are at 18 years of age. And so of course it would've been difficult maybe to do it through the substantive law, but through the child law, it worked. You'll find in Saudi Arabia, in Bahrain, in Lebanon, these uh, countries have passed anti domestic violence laws, laws, uh, fighting sexual violence against women in Singapore. In Morocco, marital rape, for example, in Singapore, the penal code was very clearly against, uh, banning marital rape.
Speaker 1 00:16:27 In Morocco, it's up to the judicial. So there we have incidents where judges courts have used the penal code, the rape articles in the penal code and implemented on, uh, marital relationships. And there's a beautiful judgment by a Moroccan judge there who says, marriage is not about force. No, everything has to be with rhythm. Everything has to be with consent. You know, you have not bought the body of that woman. She is an equal wife to you, and her consent is necessary every single time the marathon relationship takes place. And this is based on the beautiful values in Islam. It's based on the hadis of the prophet. Change can happen in, in a multitude of ways. We just need to cultivate the political will of states to do it. And that has typically happened when the state founded very costly, either politically or economically not to change. And by the way, these Muslim family laws, they have serious economic implications, not just for women and families, but for the nation as a whole, for the economy of the
Speaker 0 00:17:29 Nation. Well, you say in the chapters, the success or failure is also impacted by variety of factors such as political, well, uh, ways in which rights groups interact and come together. Economic realities too. Tell me a bit about, uh, the economic realities.
Speaker 1 00:17:44 When you look at these, uh, Muslim fam, and it's very interesting because we have countries in, in the Arab region who have found it so much easier to pass anti domestic violence laws. But then they leave the roots of violence existing happily in the Muslim family law in parallel with these new laws. So some of our laws, for example, they allow a man to discipline the wife or the female, you know, members of the family. Some of these laws allow a man to even kill these female members of the family with minimum punishment, with a decreased punishment, uh, for honor purposes. Um, and so when you look at the statistics, the Arab region is the second highest in the world after South Asia, which also has a lot of Muslim family laws going on there in intimate partner violence. And when you have family laws that have this kind of inequality between women and men, and research is showing us that in any relationship where there is such vast inequality, this is a ripe place for violence to happen.
Speaker 1 00:18:54 Any relationship. So the ruler and the rule, the employee and the boss, and of course the wife and the husband. And so when you have family laws that institute this kind of, uh, inequality legally that give the husband or the male guardian the right to discipline that give male guardianship where a woman can't even divorce easily if she's in an abusive marriage where a woman can't even escape the home, if, you know, she needs to leave without the permission of the husband. In some countries, the domestic violence shelters, when a woman goes there for her to get out of it, she needs a male guardian to take her out. You know, this is just not <laugh>. It doesn't make sense in any way. So when you look at the statistics and you find that we are one of the highest regions in the world with intimate partner violence, it's not really a big surprise.
Speaker 1 00:19:45 Now, the economic cost of this, we find that the economic cost can go up to 3.7% of gross domestic product of the whole nation. The cost of intimate partner violence in Egypt, for example, the cost of domestic violence in 2015 was estimated to cost us approximately 6.5 billion US dollars a year. Can you imagine these numbers? The whole society is paying for this kind of violence in the Arab region. We also have another problem where women are not able to contribute to, to, uh, work outside of the home for pay. Because for her to go out to work, she probably most probably needs the permission of the husband. And even if she gets the permission of the husband, she has to go back and do all this unpaid care work. So a lot of women are even unable to go out of the home to work.
Speaker 1 00:20:39 Some of our countries have laws that obligate the women to do this unpaid care work, you know, domestic, uh, housework, caring for the elderly, caring for the children, which incidentally by the way, is not an obligation on Muslim women by Islamic Jewish students. We are claiming these laws are Islamic, but in reality, people are picking and choosing which areas of Islam to put in the law. That's when it comes to the Islamic jurisprudence that tells you a woman is not obliged to take care of the baby. She even gets, you know, uh, an a, uh, a fee for breastfeeding. She's not obliged to do the housework. She's not obliged to take care of your mother. You know, the husband's mother. We don't, we ignore it. We don't put it in the law. So back to the economic cost, all this unpaid care work that women are being made to do, whether by culture custom or by law, is prohibiting them from going out and working in the market.
Speaker 1 00:21:34 If women did not have all these barriers in the Arab world to go out and work, the Arab economies are missing another potential. 85% of gdp. It's not 50%, it is 85% of gdp. Yeah. This is the cost of this family law. And let me just say something very quickly because I'm not also someone who propagates that women have to go out to work at any cost. No. If a woman decides to stay at home, to take care of her family, to take care of her children, it is her absolute right to do so. But she has to be protected by the law to other Muslim countries have done this by giving her a share in the mat wealth that is being accumulated during the marriage. Because what she's doing inside of the home is work when she takes care of the child, when she feeds the child, when she cleans the home, when she drives the children to the practice, the sports practice, when she, uh, sits with her husband to try and make him feel better after a fight he had at work, if she is not there to do all this, the family actually has to pay money for these services.
Speaker 1 00:22:45 Find a psychiatrist, find a driver, find a cook, find a house manager. So in reality, she is, she's doing <unk>, she's maintaining the household. The husband might be working outside, bringing in the money. She's working inside, but she's saving money. And that is, and by the way, again, Islamic jurisprudence comes in and saves the day. <unk> the jurisprudence specifically, I made it very clear that if a woman does any of this, she has to be compensated. And that is why you find in Malaysia, in Indonesia, in Singapore, in the family law, an article that outlines how women are entitled to a share in the matrimonial assets with a minimum of 30%. And it can go up if she's able to prove that she contributed, you know, more in Morocco, uh, for example, what they did, because they also have the culture of a Ted in the law.
Speaker 1 00:23:42 They said that there would be an annex to the contract where both parties, the husband and wife would agree how they will divide the, the, the matrimonial assets in case of death or in case of divorce, not just in case of divorce. It's also in case of death because it is a debt. This is debt that women, uh, give to the family, gift to the husband. And it has to be settled before the terra, before the estate is divided between the inheritors. And there is a very famous incident with <unk> where she was working with her husband to mend clothes. They had a little business going on there and they were working together. And then he died. They didn't have any children. When he died, his family came and took everything. He went to <unk>. She told him, this is unjust, this business, I built it with him. How come I'm not getting my share? So what <unk> did, he gave her half of the estate because you know, this is ak, this is a partnership, and he gave her a quarter of what is left as her inheritance, and the rest went to the family.
Speaker 0 00:24:59 Dr. Moro, are there examples of substantive reforms that took place in the MENA region recently?
Speaker 1 00:25:05 Oh, absolutely. So for example, and all these, uh, reforms that I'm going to give right now, they have been done based on Islamic juris prudential arguments by the way. Okay. So for example, you find in Morocco, Algeria and Tunisia, they removed completely the obligation of obedience by the wife to the husband. Um, and they used the Quran to do so. Even Tunisia, when they chose to ban polygamy in 1956, they actually went back to the Koran and they used Koranic verses to justify this banning. Yeah. So they went back to the verse that said, um, that you have to be just between your rights and then to the other verse that said, you will not be just, and hence it's better to take on new one. Okay? And based on that, they banned polygamy in Morocco. They did not go as far as banning polygamy, but they put very heavy restrictions.
Speaker 1 00:26:05 So a man has to go to the judge and prove that there are extenuating circumstances for him to go and take a second wife. Not only that, he has to prove that not only he has the money, but also the health to have more than one family. And only then does the court or the judge give him permission. You have, in Egypt for example, we managed to set a minimum age of 18 of marriage for both boys and girls. We have to be very clear that the law is one thing and reality is sometimes another thing, but at least you have the law, uh, up there governing the meta narrative. And this is what we work towards, as I said, in Malaysia, Indonesia, Singapore, even in Morocco, in in, in a certain way, Tunisia, Algeria women have a share in matrimonial assets. Yeah. Because there's a recognition that women contribute to the development of these assets.
Speaker 1 00:26:59 In Algeria, a mother, a divorced mother, has full guardianship over the children, full guardianship because in most of the Muslim world, she only has the custody, but not the guardianship. In Egypt, she has the educational guardianship in Malaysia, she has travel, education and medical in Algeria, she has the full guardianship. And that makes absolute sense because it is the best interest of the child. Yeah. It's not about the right of the woman. It's first and foremost the best interest of the child. The child is with a custodian who needs to get the affairs of the child done. Yeah. And how do you do that when you don't have guardianship? How do you do that when the father is not interested anymore in this family? Uh, married, uh, traveled abroad, you know, he's not there absent, you know, and so this is a very good development in, in Iraq.
Speaker 1 00:27:50 In Iraq, a remarried mother can actually keep custody of her children. And the law makes the new husband sign a contract that he will take care of these children just like his own this in order not to deprive the mother from her children, but at the same time recognizing her right to go and marry another, uh, marital rape is criminalized in Singapore. So it was, uh, criminalized in the penal code, in the Singaporean penal code, and with the blessing and agreement of the imams of the Singaporean Muslim community there. And what they said was rape, marital rape in Islam is not acceptable. You know, again, in Morocco I talked about the judgment in court that where, uh, I think it was a court in Tang, years in tango, where the judge used the articles on rape, general rape to implement it to a case of domestic violence and marital rape.
Speaker 1 00:28:54 And the judgment was really beautiful. And he built upon Islamic jurisprudence to justify why he used these articles to say that marital rape is unacceptable. It is not God-given, right? For a man to have access, you know, like this without the consent of the woman, as we are critiquing our laws, we have to open our eyes because there are wonderful things in there that we can learn from each other. Yeah. All Muslim countries can learn from each other, can take from each other, and there is much more. By the way, there's a whole table of these positive developments on Al's website. It's available in English and Arabic for anyone we need to take and work with. And we are happy to work with anyone who like us, believes in gender equality and justice from within an Islamic framework. Unapologetic equality. By the way, the time for change is now, and change is not just necessary. It is very, very possible. And this is what this chapter is about.
Speaker 0 00:29:50 Thank you so much for being with us today in this, uh, episode. Thank
Speaker 1 00:29:55 You for your work.
Speaker 0 00:29:55 This is Women of the Middle East podcast. Hope you enjoyed this episode of season five, to stay up to date with women of the Middle East podcast. You can subscribe and don't forget to rate us. If you would like to contact me directly, you can do so on Instagram or Twitter or via email. This is Women of the Middle East podcast.
