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Female Criminality

in the Arab Women

ISSN # 0259 - 9953Institute for Women’s Studies in the Arab World, Lebanese American University

Volume XXIII, Nos. 111-112, Fall/Winter 2005-2006

S U B S C R I P T I O N

The Institute for Women’s Studies in the ArabWorld (IWSAW) was established in 1973 at theLebanese American University (formerly BeirutUniversity College). Initial funding for the Institutewas provided by the Ford Foundation.

OBJECTIVES: The Institute strives to serve as a databank and resource center to advance a better under-standing of issues pertaining to Arab women andchildren; to promote communication among indi-viduals, groups and institutions throughout theworld concerned with Arab women; to improve thequality of life of Arab women and children througheducational and development projects; and toenhance the educational and outreach efforts of theLebanese American University.

PROJECTS: IWSAW activities include academicresearch on women, local, regional and internation-al conferences; seminars, lectures and films; andeducational projects which improve the lives ofwomen and children from all sectors of Lebanesesociety. The Institute houses the Women’s

Al-Raida is published quarterly by the Institute forWomen’s Studies in the Arab World (IWSAW) of theLebanese American University (LAU), formerlyBeirut University College, P.O. Box 13-5053,Chouran Beirut, 1102 2801 Lebanon; Telephone: 9611 867618, ext. 1288; Fax: 961 1 791645. TheAmerican address of LAU is 475 Riverside Drive,Room 1846, New York, NY 10115, U.S.A.;Telephone: (212) 870-2592; Fax: (212) 870-2762.

PURPOSE AND CONTENT: Al-Raida’s mission is toenhance networking between Arab women andwomen all over the world; to promote objectiveresearch of the conditions of women in the Arabworld, especially conditions related to social changeand development; and to report on the activities of theIWSAW and the Lebanese American University.

Documentation Center in the Stoltzfus Library atLAU. The Center holds books and periodicals. TheInstitute also publishes a variety of books and pam-phlets on the status, development and conditions ofArab women, in addition to Al-Raida. Eight chil-dren’s books with illustrations, and two guides, oneof which specifies how to set up children’slibraries, and the other which contains informationabout producing children’s books, have also beenpublished by IWSAW. In addition, the Institute hasalso created income generating projects which pro-vide employment training and assistance to womenfrom war-stricken families in Lebanon. TheInstitute has also devised a “Basic Living SkillsProject” which provides a non-formal, integratededucational program for semi-literate womeninvolved in development projects. AdditionalIWSAW projects include The RehabilitationProgram for Children’s Mental Health; Teachingfor Peace; and the Portable Library Project. Thelatter project was awarded the Asahi ReadingPromotion Award in 1994. For more informationabout these or any other projects, write to theInstitute at the address provided.

ABOUT IWSAW

ABOUT AL-RAIDAEach issue of Al-Raida features a File which focuseson a particular theme, in addition to articles, confer-ence reports, interviews, book reviews and art news.

REPRINT RIGHTS: No unsigned articles may bereprinted without proper reference to Al-Raida.Permission to reprint signed articles must be obtainedfrom the IWSAW.

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#47, 1989: Women and Television#48, 1990: Women in Management#49, 1990: Women and Law#50, 1990: Women in Charge#51, 1990: Women: Where, When and How.#52, 1991: Lebanese Women#53, 1991: Never Married Women#54, 1991: Basic Education and Female Drop out in the Arab World#55, 1991: Women Contributing to a Better World#56, 1992: Women and the Enviroment#57, 1992: International Women’s Day#58, 1992: Women at the Earth Summit#59, 1992: Women ... A Step Ahead#60, 1993: Why Feminism#61, 1993: What about Career Women#62, 1993: Young Women of Lebanon in the Post-War Era# 63, 1993: Women = Family in 1994# 64, 1994: International Women’s Day, 1994 + IWSAW’sRegional Environment Conference# 65/66, 1994: Battered Women in Lebanon# 67, 1994: Women’s Health in Lebanon# 68, 1995: Women and Education# 69, 1995: Arab Women in Management# 70/71, 1995: Women in Post War Lebanon# 72, 1996: Women in the Media and Sustainable Human Development# 73, 1996: Arab Women in the Fine Arts# 74/75, 1996: Women's Rights are Human Rights# 76, 1997: Women in the Arab Family# 77, 1997: Arab Women and Poverty# 78, 1997: Lebanese Women and Literature# 79, 1997: Women in Agriculture# 80/81, 1998: Arab Countries and CEDAW# 82, 1998: Women in the Labor Force# 83/84, 1998-1999: Women's Lives in Lebanon# 85, 1999: 1999 International Year for Older Persons# 86/87, 1999: Arab Women and Cinema# 88, 2000: Arab Women and the Media# 89, 2000: On Violations# 90/91, 2000: Women Centers in the Arab World# 92, 2001: Feminizing Politics# 93/94, 2001: Marriage Patterns in the Arab World# 95/96, 2002: Incarcerated Arab Women# 97/98, 2002: Arab Women in Civil Society# 99, 2002-2003: Sexuality and Arab Women#100, 2003: Arab Women’s Movements#101/102, 2003: Non-Arab Women in the Arab Worl#103, 2003: Women and War in the Arab World#104/105 2004: What About Masculinity?#106/107 2004-2005: Young Arab Women#108, 2005: Arab Women and Disability#109/110, 2005: Women and Activism in the Arab World

# 1, 1976: Various and Suggested Topics for ResearchIncluding : Women’s Role in the Media, in Education, inArt and Work# 2, 1977: Women and Events Focusing on Women’sDevelopment# 3, 1978: Importance of Documentation in the Arab World# 4, 1978: Post-War Thoughts# 5, 1978: Women Between Reality and Illusion# 6, 1978: Research Projects on Women’s Status: A PressingNeed in the Arab World# 7, 1979: Will Power# 8, 1979: The Year of the Child, The Year of Hope# 9, 1979: Women and Work# 10, 1979: Women in Turkey and Egypt# 11, 1980: Women and Health# 12, 1980: Problems Facing College Women# 13, 1980: Women and Media, Peace, and Sexual Exploitation# 14, 1980: Family Relations# 15, 1981: 1981, Year of the Handicapped# 16, 1981: Why a Women’s Liberation Movement# 17, 1981: Fallen Idols# 18, 1981: A Message to Consider# 19, 1982: Future Plans for IWSAW# 20, 1982:Women and Old Age# 21, 1982: Freedom Cannot be One-Sided# 22, 1982: World Campaign for Peace# 23, 1983: You Cannot set the Clock Back# 24, 1983: What is Development?# 25, 1983: Women’s Participation in Development# 26, 1983: Gibran’s Anniversary# 27/28, 1983: 1984, the Beginning of a New World Communication Order?# 29, 1984: Women of Egypt and Algeria# 30, 1984: Women and the War in Lebanon# 31, 1985: Arab Women and the Women’s Decade# 32, 1985: Arab Women and Literature# 33, 1985: Tunisian Women Speak# 34, 1985: Equality, Development, and Peace (Baghdad,Nicosia, Nairobi)# 35, 1986: Women of Saudi Arabia# 36, 1986: Kuwaiti Women: 25 Years of Independence, 1961-1986# 37, 1986: Women of Bahrain# 38, 1986: The Status of Arab Women# 39, 1987: Women and Work# 40, 1987: IWSAW: Fourteen Years of Sustained Effort# 41, Women and Economics# 42, 1987: Women’s Liberation# 43, 1988: Women’s Psychology#44-45, 1988: Woman Artist#46, 1988: Women and Liberation

* The first issue of Al-Raida was published in 1976

Titles of Issues*

Editorial 2Opinion 6Research 8Quote / Unquote 9News Briefs 10IWSAW News 11

File

File Intro 13Lebanon’s Reservations to CEDAW 14Nada KhalifehWomen’s Civil Rights in Lebanon 19Alia Berti ZeinArguments Valid for Once Only 22Azzah Shararah BeydounDiscrimination Against Women in 27Marriage and InheritanceSonia Ibrahim AtiyahThe Case of Nationality Law 31Lina Osseiran BeydounMixed Marriage in Lebanese Law 35Marie-Rose ZalzalSeeking Justice for Physical and Sexual Violence 44Mirella Abdel Sater MccrackenEligibility of Working Married Lebanese Women 48for Social BenefitsArlete JuraysatiWorking Women in Lebanon 54Iqbal Murad DoughanImplementation of a Women’s Quota System 56Arda Arsenian EkmekjiFamily Laws: The Changing and the Pseudo-Eternal 60Najla HamadehReforming Family Laws to Promote Progress in the MENA 66Valentine M. Moghadam and Farzaneh Roudi-FahimiRound Table: Personal Status Laws 74Myriam Sfeir

Reviews

Islamic Family Law in a Changing World: 80A Global Resource Book Cassandra BalchinGlobalization, Gender and Religion 85David Waines

TABLE OF CONTENTS

Al-RaidaThe quarterly journal of the Institute for Women’s Studies in the Arab WorldLebanese American UniversityP.O. Box 13-5053Chouran, Beirut, 1102 2801 LebanonTelephone: 961 1 867618, ext.1288Fax: 961 1 791645e-mail: [email protected]

Guest Editor: Najla HamadehAssistant Editor: Myriam SfeirCopy Editor: Debbie LovattDesigner: Zouheir Debs

International Advisory Board:Fadia Faqir: WriterMary Kawar: ILOAdele Khudr: UNICEFAnn Lesch: AUC

Editorial Board:Samira Aghacy: LAUSami Baroudi: LAUDima Dabbous-Sensenig: IWSAW, LAU Arda Ekmekji: Haigazian University Najla Hamadeh: BahithatNancy Jabbra: Layola Marymount

UniversityMona C. Khalaf: LAULynn Maalouf: JournalistEugene Sensenig-Dabbous: LERC, NDUFawwaz Traboulsi: LAU


Inst i tute for Women’s Stud ies in the Arab Wor ld , LAU

Cover Design: Greta Khoury

Usually, each issue of Al-Raida tackles a topic whose scopeis the Arab world. In this issue, we are making an excep-tion by focusing unilaterally on Lebanon. This is primarilybecause discrimination against women in different Arabcountries with their different legal systems would be toovast a topic. An attempt to cover several countries in oneissue would not allow the depth of analysis and detail nec-essary to do the topic justice. On the other hand, the crit-icism of discrimination, discussion of the structural causesbehind it, as well as some solutions to alleviate it, found inthis issue on Lebanon, may be relevant to other Arabcountries. We hope to be able to dedicate future issues todiscrimination against women in the legislation of othercountries of the Arab world.

An important observation about legal systems is that themore carefully thought out and convincingly presentedthey are, the more they are likely to change. This isbecause the coherence of codes of law may signify thelegislators’ anticipation of discussion and criticism; and dis-cussion and criticism are more likely to take place whenchange is an envisaged possibility. It is, of course, possiblethat some legislators, despite their pre-knowledge thatthey are not going to be challenged, may still carefullyexamine the rationality of the laws they stipulate and ofthe justifications and theories they formulate to back upthe laws. They may do so if they happen to be perfection-ists in their work, trained in the proper use of argumentsor simply because they are respectful of themselves andothers. It is also certainly possible that some individualsmay criticize the lack of coherence or consistency of laws,even if the criticism is too obvious and even if change is afar away possibility. Yet, existentially speaking, these twotypes of occurrences are rare.

Unconvincing laws and irrational justifications of lawsoften indicate that the legislator realizes that he/she is notgoing to be challenged, perhaps because he/she repre-sents an authority ‘higher’ than that of common people

and common sense. When laws are supported and perpe-trated by religious or political powers that cannot be ques-tioned or cannot be held accountable or by the claim thatthe legislator is speaking in the name of such authority, theneed to be convincing becomes trivial. Indeed, in suchcases the general public may sense the futility of subject-ing the laws to the scrutiny of reason and may learn toeither accept the authoritarian legal system without dis-cussion or to ignore its shortcomings, focusing on ways toget around it. Such a public may even lose the habit ofrational scrutiny altogether.

Lebanon is a democracy and as such its laws are expectedto be more likely to be amenable to criticism and discus-sion and hence to be more rationally convincing. However,a high proportion of Lebanese laws that tackle issues relat-ed to women suffer from contradiction and weak argu-mentation. The Lebanese public, albeit democratic, isexpected to accept irrationality and injustice in its legal sys-tem not only because some rulings purport to be backedup by the high authority of religion, but also because ofcertain ‘special’ conditions that have nothing to do withthe law or justice but with factors like tradition, precariousmulti-confessional coexistence or the necessity to givePalestinians no option other than ‘the right of return.’

Examples of Irrationality in Lebanese Laws thatPertain to Women

I. In Civil Law:1. In a country that gives the leeway of extenuating cir-cumstances to those who commit ‘honor crimes,’ it isstrange that:

a. Prostitution was legal1 under certain specified conditions. b. Punishment for pimps is so lenient: For professionalpimps incarceration six months to two years and indemni-ty between LL20,000 and 200,000 (Article 527 of theLebanese Penal Code LPC); and for luring to and facilitat-ing prostitution for individuals less than 21 years of age,

Volume XXIII, Nos. 111-112, Fall/Winter 2005-2006Volume XXIII, Nos. 111-112, Fall/Winter 2005-20062 3

Editorial

incarceration one month to one year and indemnitybetween LL50,000 and LL500,000 (Article 523 of LPC).c. The penalty for deflowering a girl after giving her falsepromises of marriage is so manageable: incarceration up tosix months and indemnity up to LL200,000 (Article 518 ofLPC).

If we live in a society that considers illicit sexual activity tobe an offense that may warrant killing the offender (usual-ly a woman) without severely penalizing the killer (usuallya man), shouldn’t we assign harsh penalties either to thewoman who practices prostitution and to those who lureher into prostitution or cause her to lose her virginity andpossibly, therefore, her life? Shouldn’t the law attempt toprotect human life? Is the law interested only in accom-modating men, giving them avenues to express their sexu-al urges, pursue easy gain and pose as ‘honorable’ withouthaving to restrain either their illicit sexuality or their venge-fulness towards kinswomen who get involved with othermen? Does the law consider the life of women less impor-tant than the convenience and indulgence of men? Or dolegislators consider the honor of men, dependent on thevirtue of their women, so precious that safeguarding it isworthy of shedding blood, while women have no honorand hence may prostitute themselves, if it does not hurt orotherwise affect their male relatives?

Whatever the aims of the legislator, he/she cannot forgothe requirements of consistency, without losing trustwor-thiness and credibility. Consistency requires that either illic-it sex is a major crime, the legal punishment for which forboth offender and facilitator is proportionally colossalwhile the law remains lenient towards family memberswho punish their transgressing kinswomen with the mostsevere ‘sentence;’ or illicit sexual behavior is a minoroffence and those who kill sex offenders get to face verysevere punishment. As it is, Lebanese legislation seems tosimultaneously consider sex offences no crime at all,(when prostitution was legal), a minor offence (as in theabove mentioned penalties for pimps) and a very graveone (as in excusing or being lenient with, those who killwomen guilty of illicit sexual activity).

2. Another example of the lack of rationality and of theobjectivity necessary for justice lies in the definition andpunishment of the crime of rape.

To allow rape within marriage (the crime of rape excludesperpetration towards the wife: See Article 503 of LPC) isto consider the wife an object owned by the husband. Ifwomen are objects, their consent should not be a condi-tion of the legality of the marriage; and if marriage trans-forms them into objects owned by their husbands thenkilling the wife or otherwise hurting her should not beconsidered a punishable crime.

When English law considered women to be less than per-sons (they had no property rights, and their marriage con-tracts were drawn according to the will of their fathers orguardians, sometimes when the girls were still infants)they were considered to be the property of their respectivemen folk and the husband could kill his wife withoutincurring any punishment. But if Lebanese law considerswomen to be persons with contractual wills, if it considersmarriage to be legal only after the consent of both partiesis unequivocally given, if it considers women equal to menin the rights and obligations of citizenship (Article 7 of theLebanese Constitution), and if it considers other crimescommitted against them by the husband punishable bylaw, how can it allow that they be subjected to an act thattotally objectifies and victimizes them as the act of rape,even if the perpetrators are the legally wedded husbands?

It may be said that the old English laws were harsh andinhuman, but at least they were consistent, unlike our cur-rent laws. In order for our legal system to pass the test ofrationality, in this context, it should either consider womenas objects with no wills and rights of their own and henceallow their rape by their rightful owners, and permit mar-rying them without their consent, or if women are consid-ered by the law to be persons with rights and dignity itshould never legalize their subjugation to the psychologi-cally degrading and physically hurtful act of rape. In thislast case, rape, including within marriage, should be con-sidered a punishable crime.

3. A third instance of flagrant lack of rationality inLebanese law, where women are concerned, is that oflaws that govern nationality. For when legislators giveblood connection as the condition for passing the nation-ality of the parent to offspring, how can they justify thatblood connection is only between father and child and notbetween mother and child? From the common sense aswell as the scientific points of view, there is no blood rela-tion closer and more certain than that between motherand child. By giving sanguine connection as the basis ofpassing on nationality to offspring, then denying childrenthe right to obtain their mothers’ nationality, the legislatoris adding insult to injury by implying an unheard of andtotally senseless claim, namely the claim that there is noblood relation between mothers and their children!

Lebanese nationality laws derive from the French law of1925. But Western traditions of old were in harmony withsuch a law, whereas there is no justification for it in Arabtraditions. Western thinkers, as far back as Aristotle,believed that children inherited characteristics from theirfathers only. This belief was never part of Arab heritage,since the earliest available Arabic poetry shows that Arabsknew that good lineage requires descent from two parentsthat come from well-recognized tribes/families. Early nar-

One Way or the OtherNajla Hamadeh

Secretary General, Lebanese Association of Women Researchers (Bahithat)Lebanese American University, Part-time, Philosophy,

alleviate discrimination against women, experience hasshown that such reforms may be short-lived or may noteffect a change in the mentality and attitudes prevalent insociety. Thus, Jihan’s Law was revoked soon after theassassination of her husband; and Burghibah's prohibitionof polygyny does not seem to have affected people's pref-erence, except negatively: Statistics published by theUNDP Report on Women (2006) show that polygyny ispresently more favored by the people of Tunisia than byany other people of an Arab country.2

The above indicates that there is no alternative to discus-sion and public involvement for true and lasting reform inlegal matters. Only education and discussion, in a democ-ratic context, can lead to a modification of laws that isaccompanied by, and integrated with, the beliefs and aimsof the public. Laws imposed from above may remain aliento, indeed may alienate, the people and may be liable tobe changed whenever the occasion arises.

From another side, if we are to dream of better laws, oreven of holistically better times, what is needed is to workon making our legislation more convincing, from a ratio-nal point of view, and more commensurable with livedexperience and common sense. When this is accom-plished, not only will the cause of justice be served, butalso discussion and, therefore, change and progress willbe stimulated and a higher level of self respect and selfworth will very likely be attained.

1. Before the civil war (1975-91) prostitution used to be legal,within a framework (area, license, medical check-ups.) At thattime 'honor crimes' were totally pardonable. 2. In the manuscript of the Fourth Human DevelopmentReport, to be published by United Nations DevelopmentProgram, 2006, the highest statistical proportion of men andwomen who accept polygyny amongst Sudanese, Tunisians,Moroccans, Egyptians, Lebanese, and Jordanians is that ofTunisians.


Editorial

ratives, like the story of the poet-fighter-lover Antarah BinShaddad, tell of his being denied the hand of his cousin inmarriage because his mother was a slave and hers was afree woman, though the fathers were brothers.

Nowadays, since scientific discoveries established the roleof the mother as well as the father in genetic inheritance,Western laws have changed to become in harmony withscientific discoveries. Lebanese nationality laws, however,are at variance with both scientific information and ourown indigenous heritage.

The above three examples indicate that Lebanese civil leg-islation is capable of ignoring logical consistency, as wellas medical or publicly known facts, in its discriminatorylegislation against women.

II. In Family Status LawsFamily status laws, which in Lebanon are relegated by thestate to the various religious authorities, are not moreadherent to the requirements of consistency. Indeed,under religious rather than secular authority, laws areexpected to be harder to change, especially if they derive,or purport to derive, from holy texts.

Flagrant inconsistencies, backed up by authoritarianunconvincing arguments are common occurrences withinfamily status laws, in Lebanon, as the following few exam-ples indicate:

1. If women and men enter marriage by their declaredfree consent, it should follow that they are able to get outof it when they are no longer consenting to the union. Ifthe legislator aims to protect the family by restricting thefreedom of married individuals who seek divorce, this maymake sense from paternalistic, pragmatic and utilitarianpoints of view. But how can the legislator justify givinghusbands the right to break up families, even for a pass-ing whim, and make it almost impossible for a wife to geta divorce, even for very serious reasons, as is the case withmost Muslim sects? If this discrepancy in the right todivorce is based on considering a man’s free will to bemore important than the interests and the continuation ofthe family while a woman’s free will is inferior to these,then it would be based on discrimination between thesexes to the extent of dehumanizing women. For consis-tency’s sake, such a woman need not be asked to consentto her marriage for it to become legal.

The irrationality of this form of discrimination is mostapparent in the literature that tries to justify it by totallyunrealistic claims, capricious judgment, and weird advice.Thus Murtada Mutahhari (1991: 182-4) claims thatMuslim husbands love their wives dearly and sacrificemoney and comfort to gain their favor; and Muhammad

Al-Salih Bin-Murad (1931: 186-7) bears witness to theharmony that pervades Muslim family life, unlike what isto be found in families in the West. Al-Asfi (1968: 218-20)concludes, on the basis of the irrationality and emotional-ity of women, that if women are given the right to divorcethey would divorce their husbands for the most trivial rea-sons, like disagreement over the color of a dress; andMutahhari (ibid. 273) gets more explicit about the ‘trivialreasons’ adding that “the husband’s refusing to kiss thedog or his choosing to watch a different movie than theone of her choice is capable of causing the wife to file fordivorce, just as in America and Europe!” In his letters tohis daughter, Al-Ibsheehi (1981:112-13) advises her tobear her burden and accept her lot, even if her husbandwere to turn out to be as cruel and ruthless as thePharaohs of Egypt!

This type of ‘reasoning’ is clearly not based either onobjective empirical evidence or on acceptable rationalarguments. It is the type of argumentation that has nomerit except the absolute and unchallenged power thatrequires the public to praise the elegance of the outfit ofthe naked emperor.

2. Perhaps the most glaring inconsistency and injustice inLebanese family status laws, pertaining to women, iswhere the designation of the rights, or lack thereof, ofmothers is concerned. For, although this is a terrain left toreligious ruling, and although our monotheistic religions,from the ten commandments to prayers to ‘the mother ofGod’ to the Prophet Muhammad’s recommendation tohonor the mother thrice (Muslim, v.8, 102) before attend-ing to the father, custody and guardianship of children isthe legal right of fathers. And in many cases even thefathers’ kinsmen have precedence over mothers.

One claimed ground for such ruling, by legislators, is thereligious texts and recommendations that give husbandsprecedence or dominance over wives. This deduction fromlesser rights of wives to lesser rights of mothers might havemade sense if the various religions recognized in Lebaneselegislation kept silent about motherhood and spoke ofwomen only as wives. But since the ten commandmentsequate between mothers and fathers ("Honor thy fatherand thy mother"), and since the Holy Qur'an gives bothparents the same rights over their children (see Qur'an IV,35 and XVII, 23-4 and XXXI, 14) and indeed singles moth-ers out for additional recognition for their pains in carryingto term and nursing their children (see Qur'an LVI, 15 andXXXI, 14), it makes little sense to downgrade the rights ofmothers simply because in the married couples' relation,husbands are given precedence over wives.

In denying mothers the custody of their children, after thefirst few years of life, the religious judge (qadi) follows the

jurisprudence of eighth and ninth century Islamic jurists(fukaha’), of whom it is said: “They are the peak of judg-ment for all time.” However, even those early jurists rec-ognized “variation in judgment with the variation of thetimes.”

At the time of the early jurists, girls were married at a veryyoung age. Mothers were often illiterate and house-bound. Hence it was not strange of the fukaha’ to judgethat it is better for the girl to join her father at age nine,since he would be better suited to negotiate her marriagesettlement. Boys often had to accompany their fathers intheir trade or at their artisan shops to learn from them.Hence, being with the father from age seven was rightlyjudged to be appropriate. But nowadays, when the timeof nurturing and schooling has been extended to the earlytwenties, when mothers are educated in the same pro-portion as fathers and are usually more available to takecare of the home and the needs of children, what fairjudgment can rule that children be taken away from theirmothers, despite all the glorification of motherhood in thesources that jurists, of old and of now, claim to use astheir main inspiration and reference? If the eighth andninth century fukaha’ judged that for the sake of whatsuited their time and the welfare of offspring of divorcedparents it was alright to go against the literal meaning aswell as the ‘spirit’ of holy texts, what pretext do the qadisof today have?

Until recently, both Christian and Muslim qadis in Lebanonfollowed the rulings of the early Islamic jurists. It is only inthe past few years that some Christian sects started to ruledifferently in matters of custody and guardianship. But thelong tradition of applying this type of judgment toChristian families and the on-going following of such stip-ulation for Muslim families are clearly, nowadays, contraryto the requirements of practicality, and usually contrary tothe well-being of the children. Over and above all this,such rulings are not in harmony with the religious pre-cepts that they purport to use as the main guidelines inreligious courts.

The above are examples of the lack of rational coherenceand/or the lack of agreement with the requirements ofcommon sense and practical convenience in a great dealof Lebanese legislation regarding women. Legislation inmany other countries of the Arab world, regardingwomen, suffers from similar shortcomings. Indeed, in theArab world, changing such laws has rarely taken place onthe basis of discussion and/or pressure applied by publicopinion. Most reforms of discriminatory laws againstwomen were prompted by the will or caprice of the total-itarian ruler or his wife, as was the case with the reformsintroduced by Burghibah in Tunisia and Jihan Sadat inEgypt. Although such reforms are welcome as means to

References

Al-Asfi, Muhammad Mahdi. Al-’Ilaqat Al-Jinsiyyah fil Qur’an Al-Kareem. Najaf: No’man, 1968.Al-Ibsheehi, Muhammad Muhammad-Ali. Rasa’el ila Ibnati.Beirut: Mu’assasat Al-Risalah, 1981.Bin Murad, Muhammad Al-Salih. Al-Hidad ‘ala Imra’at Al-Haddad. Tunis, 1931. Muslim, Saheeh Muslim (10 volumes). Beirut: Dar Al-Fikr, 1972.Mutahhari, Murtada. Nizam Huqum Al-Mar’a fil Islam.Translated by Haidar Al-Haidar. Beirut: Al-Dar Al-Islamiyah, 1991.UNDP, Fourth Human Development Report: The Report onWomen. In Press.

Endnotes


Opinion

Lebanese women, including my mother, suffer frominequality in citizenship rights based on a sexist, racist,and sectarian ‘rule of double standards.’ Being born intoa mixed-cultural family, my father Palestinian and mymother Lebanese, they have persistently explained to mehow women are considered a lower class of citizenry inLebanon, particularly under the law.

According to Lebanese law, my mother is unable to trans-fer her nationality to her nuclear family members.Consequently, the family has been facing, for years,many problems with racist Lebanese laws that restrict‘foreigners’ in work opportunities, ownership rights, andsocial and economic entitlements.

In 1945, my father was born in Haifa shortly before hisfamily was expelled from their home and forcefully fledto Lebanon. Since then he has spent 57 years of his lifeon Lebanese soil and has grown to call this country hishome. My father graduated from the University ofCairo with a BE in Aeromechanical Engineering. He wasone of the first graduates in this specialized discipline,which is in high demand in the Arab employment mar-ket. When he came back home, my father certified hisdegree in the Ministry of Education and obtained a per-

mit for practicing his profession from the Ministry ofLabor. The General Directorate of Civil Aviation wasquick to call him in for an interview and immediatelyoffer him a job. When he was about to sign the con-tract the government discovered he was a Palestinianand withdrew the offer. My father was also restrictedfrom working in the private sector. As an engineer, hehas to fulfill two conditions before legally practicing hisprofession; he has to obtain a work permit and join thesyndicate. While getting a work permit might be feasi-ble, it is ineffective because no Palestinian can join aLebanese syndicate. Consequently, my father had totravel away from his family, away from his home to geta decent job in the Gulf.

My older brother also faced similar problems. Lebanesework law effectively rules out Palestinians’ prospects foremployment except within a limited number of permissi-ble jobs that do not require the hardship of getting awork permit. My brother, a graduate of the AmericanUniversity of Beirut (AUB), started working for aPalestinian NGO at a relatively low salary. Other jobs heapplied for were legally permissible, yet Lebanese com-panies refused to get into the labyrinths of governmentbureaucracy to obtain a work permit for him (that is, if

we exclude the high probability of the decision beingracist or sectarian). In contrast, when my brother appliedto a multinational corporation, he was accepted andappointed to a comparatively high position, tripling hisprevious income. Obviously, the reasons behind thesevariations in treatment are vague, and cannot be ascer-tained empirically. Yet based on logical speculation, oneof two things can be concluded: A multinational corpo-ration is disinterested in the applicant’s nationality andsect, and thus is far from taking a racist or sectarian deci-sion. It is also possible that a company with a consider-able international reputation and power in the markethas enough corporate power to efficiently obtain a workpermit, even for a Palestinian. Yet even as an employee ina multinational corporation, my brother is not entitled tofull social security coverage, although he pays for it!

In 2001, things got even morecomplicated. The governmentenacted a law that deprivednationals whose countries deniedLebanese property ownershiprights from owning real estate inLebanon. Translation: First, youhave to have an internationallyrecognized country in order toown real estate in Lebanon.Second, someone born inPalestine is either an Israeli or aPalestinian. The former, unlike thelatter, may obtain other nationali-ties through which one can easilyown real estate in Lebanon.However, an Israeli national, tobegin with, is prevented from set-ting foot on Lebanese territory.Conclusion: This law is worded insuch a manner that it intrinsicallyprevents Palestinians from owning property in Lebanon.Consequently, my father now refuses to move out ofand sell our grandfather’s house in Beirut since it is theonly property he owns. He worries about the fact thathis ‘half-Lebanese’ children are not permitted to inher-it any real estate. Thus, the house should be liquefiedand inherited only in monetary value.

The final blow was two years ago, in 12th grade. I got thehighest score nationwide in the official exams, specifical-ly in the Sociology and Economics sections. The first threestudents in ranking received a 30 million Lebanese Lirascholarship from the Educational Center for Research andDevelopment. I was denied this scholarship, which I aca-demically earned, on a purely racist basis. The presidentthen had the courtesy to invite us to his palace yet didn’t

have enough courage to speak to my mother, a Lebanesecitizen, when she required justification for this racist deci-sion. Like all our official bureaucrats, he denied responsi-bility and ‘transferred” her to ‘those in charge’ who onlyhad one thing to say : “You know how it is forPalestinians in this country.” Two things they failed to seeand admit: they are ‘those in charge’ of this inhumanetreatment, and the person they were talking to isLebanese!

Another intriguing conversation around this same eventwent on in the Ministry of Education, which made sure topay its share to its excelling students. I was invited toreceive a check from the Minister of Education at thattime. I went. “Hmmm, you’re Palestinian…one second.”five minutes later: “But you’re mother’s Lebanese…one

second.” Another five minutespassed.

A check for voting status…

Not only is my mother a Lebanesecitizen; she is also above the age of21 with full mental capacity to votefor our generous official.

Unlike her fellow male citizens, mymother had to seek her right to getus the Lebanese nationality, but shewas rejected since we didn’t fit theright demographic quota. We hadto convert to Christian Maronites toobtain the nationality. My motherenthusiastically upholds ‘The Rightto Return,’ and she fights for herfamily’s basic human rights in their‘motherland.’ How ironic is this ter-minology’s structural analysis:

Mother: LebaneseLand: LebanonMotherland: confiscated by sexism, racism, and sectarianism.

Citizenship is a constitutionally acquired right for foreignwomen marrying Lebanese men and a matter of conve-nience with foreign basketball players that are neededon the ‘national’ team. Ownership rights consolidate theeconomy with greater investments. Employing rarehuman resources increases the country’s self sufficiency,and investing in potential brains reverses its brain drain.Nevertheless, I guess when it comes to the Rule of Law,to secure basic human rights for all citizens, it seems thatforeign basketball players are more entitled than nativeLebanese women.

Razan Al-SalahCommunication Arts: JournalismLebanese American University

Basketball Players Get It and We Don’t!Denying Lebanese Women the Right of Nationality

I was denied

this scholarship,

which I academically

earned, on a purely

racist basis.


Quote/Unquote

“The legal pluralism in family law has led to an absenceof an 'equality before the law' standard in Lebanon.Women and children of different religious sects face verydifferent legal choices and possibilities in terms of mar-riage, divorce, child custody, and inheritance… Womenand children have been disproportionally disadvantagedby the delegation of family law to religious sects.Women are more likely than men to forfeit their religiousheritages when they marry out. Women, although notlegally required to do so, have been expected to followthe religion of their husbands. Women who marry out oftheir religious community may not pass on to their chil-dren their own religious heritages – a right reserved formen.” (Suad Joseph, Gender and Citizenship in theMiddle East, 130-131)

“… she and her husband were at lunch. They were hav-ing an argument. She had said again that she wanted adivorce and he had refused. That is all I know. She ranfrom the table and locked herself in the bathroom. Hehad had no idea, he said later, weeping out loud, thatwhat she was doing was climbing out the window. Iremember going to their apartment the day after herdeath for 'aza (condolence). She had survived for only afew moments on the pavement, a crowd forming roundher as she moaned in great pain, and then had died, noone she knew at her side. She was buried the same day.She was 42. I almost could not bear to offer my sympa-thies to her husband, as I was required to do, going intothe room where he sat with the men, receiving condo-lences, his face looking stricken and shriveled. And Ifound myself angry also at her sisters, my mother andaunts, their eyes swollen and red, receiving condolencesin the rooms for women. Why are you crying now? Ithought. What's the point of that? Why did you donothing to help her all this time, why didn't you get herout of that marriage? I thought it was their fault, thatthey could have done something. If they had caredenough they could have done something. That is what Ithought then. Now I am less categorical.” (Leila Ahmad,A Border Passage, 120)

“There was apparently an increase in violence againstwomen. At least six women were killed during the year,mostly by male relatives, as a result of family crimes orother forms of violence against women. Such crimescontinued to be committed by men with near impunityfacilitated by lenient sentences for killings carried out ina 'fit of fury.' Information was received on alleged tor-ture, including rape, of Filipina maids working inLebanon. ... A 27-year-old Palestinian man killed his sis-ter by cutting her throat for allegedly having pre-marital

sexual relations with her fiancé. The attack reportedlytook place in October in a Beirut hospital where thewoman worked. The man handed himself to the author-ities. ... Seventeen-year-old Fadela Farouk Al-Sha'ar diedon February 5 in Tripoli apparently after being strangled,allegedly by her brother. He was said to have confessedto the murder before disappearing. She was apparentlykilled for allegedly eloping with a man she wanted tomarry without the consent of her family. … A Filipinawoman, Catherine Bautista, one of thousands of maidsreportedly working in difficult conditions in Lebanon,died on May 4. Her body was found almost naked in thegarden of the building in Beirut where she worked. Aninvestigation ordered by the authorities closed the casein July apparently after concluding that she had diedafter jumping out of her employers' apartment.”(Amnesty International, Report 2005, The State of theWorld's Human Rights, 160)

“In Saudi Arabia strict customary rules discourage con-tact between members of the opposite sex. As a result,many young couples do not have the opportunity to getto know each other well before marriage. Yet with bothsecular and Islamic education for women being providedon a large scale by the government, Saudi women arewell aware of their rights in Islam, one of which is theright to meet their potential husband before marriageand to give or withhold their consent to the union.Increasingly, Saudi women demand to not only meet butalso to know their husbands before marriage… Onemethod by which couples get to know each other with-out breaching Saudi standards of propriety is by talkingover the phone. ‘Dating by phone’ is a new phenome-non which is growing rapidly in Saudi Arabia. I knowmany young Saudi women who have met young men(through friends at the mall, at private mixed parties andso forth) and exchanged phone numbers. They talk fre-quently on the phone and in several cases these conver-sations have led to marriage proposals.” (Lisa Wynn,Special Dossier: Shifting Boundaries in Marriage andDivorce in Muslim Communities, Women and Law in theMuslim World Programme, 112-113)

“It had never occurred to me that I was not a real citi-zen! My daughter is Egyptian, same as her father. She isconsidered to be an alien. Aside from the excruciatingprocess of securing her annual residency permit, wehave to put up with prejudice. I do not understand!When they said that nationality can be passed onthrough blood, did they mean only men's blood! In thisday and age in Lebanon, only men are considered to befull citizens." (Zahra, Lebanese, married to an Egyptian)

Volume XXIII, Nos. 111-112, Fall/Winter 2005-20068 9

Research

New Publication

Knowing Our Rights: Women, Family, Laws andCustoms in the Muslim World (3rd Edition) WLUML (September 2006)

The latest edition of this handbook has been updated toinclude all recent changes to relevant laws in severalcountries. The handbook covers 26 topics relevant tomarriage and divorce, including the status of children(paternity and adoption) and child custody and guardian-ship.

Not only is it unique in providing a user-friendly, cross-comparative analysis of the diversities and commonalitiesof laws and customs across the Muslim world, it is alsothe first handbook to attempt to rank laws in Muslimcommunities in terms of whether they are more or lessoption-giving for women, analyzed from a rights per-spective and the realities of women’s lives.

Please contact [email protected] to order a copyhttp://www.wluml.org/english/newsfulltxt.shtml?cmd[157]=x-157-542774

Visiting Fellowship Collaboration

The Economic and Social Research Council (ESRC) andthe British Academy have announced a new jointscheme to fund Visiting Fellowships from South Asiaand the Middle East. The fellowships, which will be aminimum of two months in duration, aim to attractearly-career researchers particularly from South Asiaand the Middle East to collaborate on research. It isalso hoped that through these Visiting Fellowshipslonger term plans for collaborative research could bedeveloped.

Chief Executive of the ESRC, Professor Ian Diamondcommented, “I am delighted that by working togeth-er with the British Academy we can facilitate the shar-ing of skills and knowledge between talentedresearchers from an increasingly influential area of theworld and the UK, helping to invigorate, and furtherstrengthen, British social science and the researchmethods behind it.” Dr Robin Jackson, Chief Executiveand Secretary of the British Academy, said, “the BritishAcademy is very pleased to be working in partnership

with ESRC to support these fellowships, which willoffer invaluable opportunities to strengthen researchlinks between this country and areas of rapidly grow-ing interest and importance to the UK.” Further information about the scheme can be found atwww.britac.ac.uk/funding/guide/intl/vfsame.html <http://response.pure360.com/_act/link.php?mId=A8178192455989741686&tId=748356>

Films

In My Father’s HouseDirected by Fatima Jebli Ouazzani

In this beautiful, poetic and deeply personal film,Moroccan filmmaker Fatima Jebli Ouazzani investigatesthe status accorded women in Islamic marriage customsand the continuing importance of virginity. Ouazzani lefther father’s house in Morocco 16 years ago to escape theconstraints her culture and its traditions have put onwomen. She returns now to confront those traditions,her own family and herself. Following three generationsof women — her grandmother’s and mother’s arrangedmarriages, her grandmother’s subsequent attempts todivorce, and Naima, a young woman who has returnedhome for a traditional wedding ceremony — she ques-tions whether her choice for a life of her own was worththe loss of her father. Jebli Ouazzani offers us a rareglimpse of the shifts and changes in Moroccan andIslamic culture in this powerful, moving film.

Maid in LebanonDirected by Carole Mansour

Thousands of Asian women leave their homes each yearto work as maids in the Arab world with the hope ofsecuring a better economic future. Yet since their experi-ences are hidden behind closed doors, little is known ofthe fears and struggles they face while abroad.

This film exposes the little known world of the domesticmigrant worker, tracing women’s journeys from Sri Lankato Lebanon. This documentary provides an insightful andsensitive look into the lives of these migrant workers withinterviews from family members, employers, hiringagents and specialists in the field. In their own voices, thewomen reveal cases of torture and rape, physical andmental abuse, as well as positive employment experi-ences.


IWSAW News

Democracy and Gender: The Role of Women in Politics, the Media and Education

Nationality Campaign: My Nationality a Right for Me and My Family March 29-30, 2006In collaboration with the Collective forResearch and Training on Development andAction (CRTD-A), the Institute for Women'sStudies in the Arab World (IWSAW) and theHuman Rights Club at Lebanese AmericanUniversity (LAU) sponsored a nationality cam-paign on: My Nationality a Right for me andmy Family. The campaign addressed the lack ofrights of Lebanese women that marry non-Lebanese to transfer their nationality to theirhusbands or children.The campaign was extremely positive andwithin four hours 216 students' signatureswere secured for a petition demanding tochange the Lebanese law on nationality andgrant full citizenship rights to Lebanesewomen.Following the campaign, a panel discussionwas held with a Lebanese lawyer and repre-sentatives from the RassemblementDemocratique des Femmes Libanaise who dis-cussed the subject with LAU students.

Claiming Equal Citizenship: The Campaign for Arab Women's Right

to Nationality

Women's right to equal citizenship is guaranteed by themajority of Arab constitutions, as well as by international law.Yet across the Middle East and North Africa (MENA) regionand the Gulf, women are denied the right to pass on theirnationality to their husbands and children – a crucial compo-nent of citizenship.

In almost every country in the MENA and Gulf regions,women who marry men of other nationalities cannot confertheir original nationality to their husbands or children. Onlyfathers, not mothers, can confer their nationality to their chil-dren.

Discriminatory laws denying women equal nationality rightsundermine women's status as equal citizens in their homecountries. Such laws send the message that women do notenjoy a direct relationship with the state, but must accesstheir citizenship rights through the mediation of a male fam-ily member, such as a father or a husband. Until women inthe MENA and Gulf regions are recognized as full nationalsand citizens, they cannot participate fully in public life, norclaim the other rights to which they are entitled as equalmembers of their societies.

The denial of women's nationality rights also creates real suf-fering for dual nationality families living in the woman'shome country. Children and spouses are treated as foreignersand must obtain costly residency permits. Children are oftenexcluded from social services such as social security, health-care and subsidized or free access to education. In manycountries, spouses and children have limited employmentopportunities and are unable to own property. In terms ofpsychological impact, many women feel isolated and guiltybecause they feel responsible for the difficulties faced by theirfamilies, while children suffer from low self-esteem becauseof their second-class status.

The Women's Learning Partnership (WLP) joins with partnersin the Middle East, North Africa and the Gulf to call for:- Legal reform enabling women to confer their nationality totheir husbands and children without condition- Full implementation of reformed nationality laws and equalaccess to these laws for all women- Recognition of women as equal citizens in all areas of life

Focus Countries- Algeria: Centre d'Informatique et de Documentation sur lesDroits de l'Enfant et de la Femme (CIDDEF) is coordinatingthe campaign. The nationality law was reformed in March2005, allowing Algerian women married to non-nationals to

NewsBriefs

confer nationality to both spouses and children. CIDDEF andregional partners are monitoring the implementation of thereform.- Bahrain: Bahrain Women's Society (BWS) is coordinating thecampaign. Limited changes to the nationality law are underdiscussion in the Parliament for women married to Gulf citi-zens only. BWS and regional partners are calling for therecognition of nationality rights for all women. - Egypt: Forum for Women in Development (FWID) is coordi-nating the campaign. The nationality law was reformed inJuly 2004 allowing Egyptian women married to non-nation-als to grant nationality to their children only. FWID andregional partners are monitoring the implementation of thereform.- Jordan: Sisterhood is Global Institute Jordan (SIGI-J) is coor-dinating the campaign. Current nationality law does notallow Jordanian women to confer nationality to either spous-es or children. JCNW and regional partners continue to advo-cate for reform.- Lebanon: Collective for Research and Training onDevelopment-Action is coordinating the campaign. Currentnationality law does not allow Lebanese women to confernationality to either spouses or children. CRTD-A and region-al partners continue to advocate for reform. - Morocco: Association Démocratique des Femmes du Maroc(ADFM) is coordinating the campaign. The King proposed anew nationality law in a speech given in the summer of 2005and a Ministry of Justice commission has been established tosubmit proposals to parliament. ADFM and regional partnersare advocating vigorously for a 'no conditions' law, which willapply retroactively to pending citizenship applications by chil-dren of Moroccan women married to non-nationals.- Syria: Syrian Women's League (SWL) is coordinating thecampaign. Nationality law does not allow Syrian women toconfer nationality to either spouses or children. SWL andregional partners continue to advocate for reform.

Take ActionHelp support the campaign for women's equal citizenshiprights.- VISIT our Claiming Equal Citizenship Campaign WEBLOGfor personal stories, country updates, and recent campaignnews.- SIGN our petition calling for legal recognition of women'sright to confer their nationality to their husbands and chil-dren and full implementation of this right in the Middle East,North Africa and the Gulf.- RAISE AWARENESS in the media. Write a letter to the edi-tor, or an op-ed to your newspaper to express your concern.- CONNECT US with women living in the focus countriesmarried to non-national men. Encourage them to share theirexperiences on the Campaign WEBLOG.

For more details visit the WLP website on http://www.learningpartnership.org/advocacy/campaign

From left to right: Mr. Samir Farah, Dr. Dima Dabbous-Sensenig, Dr. AnkeMartiny, Dr. Hadumod Bussman and Mrs. Gisela Brackert

In cooperation with Friedrich Ebert Stiftung andGoethe Institut, the Institute for Women's Studiesin the Arab World (IWSAW) at the LebaneseAmerican University held a seminar on Friday,November 18, 2005 on Democracy and Gender.Mr. Samir Farah, representative of Friedrich EbertStiftung started by welcoming the audience andintroducing the event. Following that, Dr. DimaDabbous-Sensenig, Acting Director of IWSAW,chaired the session. She introduced each of thethree German speakers: Dr. Anke Martiny, formerMP and Senator for Culture, Berlin, presented apaper on the role of women in politics. Mrs. GiselaBrackert, journalist and former president of theJournalists' Association, spoke about the role ofwomen in the media. Dr. Hadumod Bussman, for-mer responsible for Women’s Affairs at the LudwigMaximillians University in Munich, talked about therole of women in education. Dr. Dabbous-Sensenigconcluded the session by highlighting key pointsraised by the presenters and then opened the floorfor questions and discussion.

Dr. Dima Dabbous-Sensenig, Acting Director of the Institutefor Women’s Studies in the Arab World was appointed bythe UN Secretary General, along with eight other interna-tional gender experts, to participate in the ExpertConsultation on “Priorities in Follow-Up to the Ten-YearReview and Appraisal of Implementation of the BeijingDeclaration and Platform for Action.” Dr. Dabbous-Sensenig was the only expert from the Arab world.

During the Expert Consultation, organized by the Divisionfor the Advancement of Women (DAW), which lasted forfour days, each expert submitted a country/regional reporton the status of women and recommended ways of accel-erating the implementation process of the Beijing Platformfor Action.

Dr. Dabbous-Sensenig presented a paper entitled“Incorporating an Arab-Muslim perspective in the re-assessment of the implementation of the Beijing Platformfor Action.” In her paper, she tried to identify the reasonspreventing major articles of the Convention for theElimination of all Forms of Discrimination Against Women(CEDAW) from being implemented in most Arab countries,namely those articles related to citizenship and family sta-tus laws. Moreover, she offered recommendations toaccelerate the implementation of CEDAW and the BeijingPlatform for Action, based on her own assessment of thespecificities of the Arab world. The paper can be accessedat http://www.un.org/womenwatch/daw/ meetings/con-sult/10-review/EP9.pdf

The four day meeting resulted in a unified expert reportthat assessed the implementation of the Beijing Platformfor Action and identified priority issues and recommenda-tions to accelerate the implementation of the Platform andto advance women’s rights worldwide. The report wasthen presented at the United Nations headquarters in NewYork City to representatives from Member States and civilsociety. The report contains the following sections/priori-ties and related recommendations: Women and EconomicJustice, Women and Armed Conflict, Human Rights ofWomen, and Women and Access to Information. Thereport can be accessed at http://www.un.org/women-watch/daw/meetings/cosult/10 review/Expert ConsultationReport Feb27.pdf


IWSAW News

Priorities in Follow-Up to the Ten-Year Review and Appraisal of Implementationof the Beijing Declaration and Platform for Action, New York City October 31 - November 3, 2005

The Role of Higher Education in the Empowerment of Arab Women December 3, 2005Dr. Dima Dabbous-Sensenig, BUC alumna and ActingDirector of the Institute for Women’s Studies in the ArabWorld (IWSAW), participated in the forum organized bythe Dubai LAU Alumni chapter on “The Role of HigherEducation in the Empowerment of Arab Women.” Shepresented a paper entitled “The Role of Higher Educationin the Empowerment of Women in Politics in the ArabWorld.” President Dr. Joseph Jabbra and Vice Presidentfor Academic Affairs Dr. Abdallah Sfeir attended theevent. Several BCW and BUC (now LAU) alumnae fromdifferent nationalities spoke on the pioneering role inhigher education played by LAU in shaping their success-ful careers after graduation. All the speeches presentedwill be included in a forthcoming issue of Al-Raida on theEmpowerment of Women in Higher Education.

Dr. Dima Dabbous-Sensenig with the eight other gender experts at theUN headquarters where the report was presented on November 3, 2005

From left to right: Dr. Dima Dabbous-Sensenig, Mrs. Magda Abu-Fadiland Mrs. Jeannette Mufti


'Law' is an awe-inspiring word. It makes theinnocent feel secure and strikes the guiltywith panic. Law is supposed to protect theweak and restrain the powerful. But can wesay this about Lebanese laws and the posi-tion of Lebanese women within their coun-try's legal system(s)?

The following file about women in Lebaneselegislation basically tells the Lebanese versionof the story of discrimination against womenin civil and religious laws. It depicts the flip-pancy of legislators who feel no qualmsabout granting women rights and responsi-bilities equal to those of men in the openingarticles of the law of the land, then with-drawing a lot of these rights in discriminato-ry civil laws and in religion-based family lawsthat discriminate not only between men andwomen but also between members of thesame sex who belong to different confes-sions. The Lebanese legislator also seems tofind no problem in ratifying internationalagreements, with or without reservations,while allowing laws that contradict the termsof these agreements to rule people's lives.On a more positive note, the file includessome amendments of laws in the direction ofequity and some work done towards moreamendments.

The file includes three articles that refer tothe Convention on the Elimination of allForms of Discrimination Against Women(CEDAW). Nada Khalifeh explains thegrounds and some terms of the Convention,arguing against Lebanese reservations tosome of its terms. Alia Berti Zein reviews dis-criminations against women in the Lebanesepenal code, in the light of CEDAW; andAzzah Shararah Beydoun recounts the reac-tions and recommendations of the CEDAWCommittee when it met with a delegationrepresenting the Republic of Lebanon in July2005 at the UN headquarters in New York.

The inequality between the rights ofLebanese men and women within the familyare discussed in three other articles. Thus,

Sonia Ibrahim Atiyah, after giving a historicalbackground and before suggesting neededimprovements, describes discrimination ininheritance laws, at the gender and confes-sional levels. Lina Osseiran Beydoun discussesdiscrimination between men and women inthe right to pass their Lebanese nationality totheir spouses and offspring; and Marie-RoseZalzal gives a thorough account of the legalcomplications that face individuals withinmixed marriages, as well as the advantagesthey reap.

Some situations that may arise within thefamily are discussed by Mirella Abdel SaterMcCracken, who tackles violence againstwives as well as against foreign domesticworkers, and by Arlete Juraysati who gives adetailed legal account of what social benefitsthe families of working women are entitledto and what procedures are to be followed inorder to gain access to these rights. Withinthe same framework of Juraysati's article,Iqbal Doughan lists the pending amend-ments required in order for working womento acquire their full rights, equal to those oftheir male colleagues.

The article of Arda Ekmekji deals with legisla-tion related to politics. It discusses the optionof establishing a quota system to insurewomen's participation at the levels of repre-sentation and political decision-making.

Of a more general nature is Najla Hamadeh'sarticle on the philosophy of change in codesof law and factors that impede change orenhance it. Also, the file includes a round-table discussion on the advantages and/ordisadvantages of having religious laws andcourts for family status instead of civil lawsand courts. For this last rich discussion thatincludes very revolutionary and very tradi-tional (positivist) positions, we thank Dr.Bechir Bilani, Mohammad Matar (Attorney atlaw), Mr. Ahmad El-Zein (Attorney at law),Judge Arlete Juraysati and Dr. Ibrahim Najjar.

Najla Hamadeh

File File File

The Status of Women in Lebanese Legislation


Nada KhalifehAttorney at Law

Lebanon’s Reservations to theConvention on the Elimination ofall Forms of DiscriminationAgainst Women

By adopting the Convention on the Elimination of allForms of Discrimination Against Women (CEDAW) onJanuary 18, 1979, the United Nations General Assemblymade a vital contribution to the promotion of women’srights and their equality with men.

This Convention occupies an important position amongother international conventions which aim at safeguard-ing human rights, particularly women’s rights, because itcovers all rights and establishes equality of the sexes inthe family as well as in the social sphere.

Moreover, and in comparison with other documents,CEDAW accomplished important progress through theinclusion of special unusual articles. It stipulates for theresponsibilities of member states to eliminate discrimina-tion against women by measures such as calling onnational constitutions and other legislations to embodythe principle of equality between men and womenthrough appropriate measures, exceptional measures aswell as temporary ones, in order to expedite the processof achieving equality. Foremost among these measuresare those that effectuate real changes in social and cul-tural norms that discriminate against women and preventthem from exercising their rights.

The Convention also stipulates equal rights betweenmen and women in public and political life, namely ineducation, work, health services, financing, social secu-rity, the right to conclude contracts, as well as the equal-ity of men and women before the law and within thefamily.

Indeed, CEDAW does not merely recognize women’srights and their equality with men. It demands that mem-ber states commit to the implementation of all articles,taking necessary steps to eliminate discrimination in all itsshapes and forms.

In order to follow up on the commitment of memberstates, the Convention stipulates in Article 17 the estab-lishment of a Committee for the Elimination ofDiscrimination against Women. Every four years memberstates must report to the Committee what legal, legisla-tive, and administrative steps they took towards achiev-ing equality. They must also state the difficulties andobstacles they faced in the process.

In spite of the obvious increase in the number of stateswhich have ratified the Convention, CEDAW remains theConvention with the highest number of reservations, pre-

sented particularly by Arab states. Although in Article28(a) it allows states, upon ratification or accession, tovoice reservations – namely to not abide by one or moreof the articles – it nevertheless does not accept any reser-vations that are incompatible with the object and pur-pose of the Convention.

Lebanon ratified CEDAW on July 26, 1996. TheLebanese Constitution guarantees equality of thesexes. Paragraph (b) of the introduction added onSeptember 21, 1990 states that, being a foundingmember of the United Nations, Lebanon is committedto abiding by all its charters, particularly theInternational Declaration of Human Rights, and thatthe state must embody the principles of these chartersin all fields and domains.

Paragraph (c) of the introduction also stipulates equalityamong all citizens without discrimination or favoritism.

Nevertheless, Lebanon voiced reservations about somefundamental articles of the Convention: Paragraph 2 ofArticle 9 dealing with equality in matters of citizenshiplaws, Paragraphs (c), (d), (f), and (g) of Article 16 dealingwith equality in family laws, and the first paragraph ofArticle 29 dealing with settling disputes between mem-ber states.

What follows is an investigation of the reasons that liebehind the reservations Lebanon introduced concerningthe Convention, with special emphasis on those relatedto Articles 9 and 16.

Concerning NationalityThe first paragraph of Article 9 of CEDAW requires allmember states to grant women rights equal to thosegranted to men in matters of citizenship acquisition.Accordingly, women must have the right to change theirnationality and preserve, rather than automatically relin-quish it, when they marry a foreigner or when their hus-band changes his nationality.

Also, the second paragraph of Article 9 stipulates secur-ing women equal rights in transferring their nationality totheir children.

Citizenship laws in Lebanon follow Decree 15 of January19, 1925, which was amended by a decree on January11, 1960. In accordance with Article 6 of this decree, awoman remains Lebanese when she marries a non-Lebanese unless she requests her removal from the cen-sus registry in order to acquire the citizenship of her hus-band.

Meanwhile, Article 7 stipulates that: “having renounced

her nationality upon marrying a non-Lebanese, a womanmay upon her request regain the Lebanese nationalityonce her marriage is terminated.”

Therefore, Lebanon does not comply with the content ofParagraph 1 of Article 9 of the Convention and hasentered a reservation to Paragraph 2 of that article sinceLebanese law does not allow a Lebanese woman who ismarried to a non-Lebanese to transfer her nationality toher children.

In accordance with Article 1 of Decree 15 a Lebanese is:

1. Someone born of a Lebanese father.2. Someone born on the territory of Greater Lebanon andwho does not by birth have the right to the citizenship ofanother country.3. Someone born of unknown parents on the territory ofGreater Lebanon, or whose parents do not possess aknown nationality.

Hence, and following this first article, Lebanese lawdefines kinship exclusively through patrilineage, ignoringthe right of the Lebanese woman to grant citizenship toher children, even if their birth occurs on Lebanese soil.

There are two exceptions to this:

In the case of an illegitimate child of Lebanese motherand unknown father (as per Article 2 of Decree 15); andin keeping with Article 4 of Decree 15, a non-Lebanesemother who was naturalized through marriage is allowedto grant her non-Lebanese under-age children from aprevious marriage citizenship upon the death of theirfather. It is important to note here that this article grantsthis right to Lebanese mothers of non-Lebanese originonly.

In spite of exceptional court rulings, which interpretedArticle 4 to include under-age children of mothers ofLebanese origin too, most other rulings persistently pre-vent mothers of Lebanese origin, under similar circum-stances, from granting their children citizenship.

This makes Lebanese law extremely strict in matters ofcitizenship. Not only does it grant only naturalizedLebanese mothers the right to transfer their citizenship totheir children, depriving mothers who are originallyLebanese from having this right, but it also ties the rightsof children to laws that discriminate between men andwomen, impacting them positively if their father isLebanese, and negatively if their Lebanese parent is themother. Such discrimination that impacts rights derivesfrom trends of social inequality between men andwomen.

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Lebanon has reservations over Paragraphs (c), (d), (f), and(g) of this article.

Lebanon is a country that entrusts its personal status lawsto religious legislation. According to the Constitution,which was passed down from the French Mandate andwas introduced on May 23, 1926, the Lebanese are divid-ed into religious sects, each with its separate legislature,administrative autonomy, and the right to legislate anddeliberate in matters concerning personal status laws.Article 9 of the Constitution states:

Freedom of worship is absolute. The state in its dutytowards God almighty respects all religions and sects andsafeguards the freedom of religious rituals in as far as theydo not disturb public order. The state also safeguards toall people their various sectarian identities and respectspersonal status laws and religious interests.

The Lebanese are divided into 18 religious sects each hav-ing its own set of laws and regulations. This situationcontradicts the principle of equality among all Lebanesethat figures in other articles of the Constitution, and goesagainst the general principles stipulated in internationalcharters, especially the Universal Declaration of HumanRights observed in the introduction of the LebaneseConstitution.

While all personal status laws differentiate between theLebanese based on religion and sex, women remain theweakest and most disenfranchised within each sect. Thisinequality in personal status between men and womenbegins with marriage, persists throughout it, and contin-ues even after its dissolution.

What follows is an exposé of the major violations ofwomen’s rights found in personal status laws and whichare in breach of the principles of equality and of interna-tional charters:- Defining marital age goes against international charters.In the cases of Sunnis and Shiites, this age is set as low asnine years.- Marriage between persons of different religions is oneof the many prohibitions for the Christian Orthodoxchurch, while Muslim sects prohibit the marriage ofMuslim women to non-Muslims.- In matters of marriage contracts, Muslim sects equateone male witness with two female witnesses, while theDruze and Armenian Orthodox sects require that bothwitnesses be male.- Most sects base marriage on obedience rather than onmutual respect. The man is considered to be the head ofthe family with a given right to take all decisions, whilewives are required to obey, submit, and care for thehousehold. Some sects even grant the man the right to

control his wife’s mobility, keeping her at home andreturning her by force if she escapes.- It is not a woman’s right to be custodian of her children.Rather, this is a role delegated to her by her husband whohas the right to claim the children when they reach a cer-tain age. Moreover, a woman might lose the right of childcustody based on reasons that demean her and greatlyrestrict her freedom (e.g. a second marriage contract,unfit to raise children, bad behavior).- Child custody is basically the father’s prerogative. In theevent of the father’s death, custody is relinquished to themother in only very few sects; in the majority of sects it ispassed to the paternal grandfather, uncle or other malepatrilineal kin.- Polygyny is authorized in both Sunni and Shiite sects.- Sunni and Shiite men are allowed to divorce their wiveswithout recourse to the court. For many sects, men andwomen are not equal when it comes to reasons fordivorce.- Marriage between persons of different religions is anobstacle to inheritance. Moreover, a woman has anunequal and unfair share of the inheritance in both Sunniand Shiite sects.

It is important to add that discrimination against womeninside the family goes as far as legitimizing domestic vio-lence. Not only are perpetrators of the violence sparedblame, but usually women themselves are held responsi-ble for the violence they incur.

Lebanese sectarian laws have remained intact for morethan 50 years. This is unlike the case in other Arabnations, such as Egypt, Tunisia, and Morocco, which haverecently amended their personal status laws in keepingwith international charters and by way of remaining instep with modernity.

It must be noted that the belated amendment made bythe Greek Orthodox Church in Lebanon remains insuffi-cient. Admittedly, this move included a few principleswhich uphold equality of men and women, such as thestriking off of matrimonial liturgy that was demeaning towomen, privileging children’s interests in custody mat-ters, granting mothers primary guardianship and raisingthe custody age of boys to 14 years and that of girls to15. However, these adjustments remain short of achiev-ing equality of the sexes.

What marks CEDAW is that it requires member states toeliminate discrimination in the private sphere, namely inthe family, as a means of achieving total equality of menand women in all other domains.

Lebanon’s reservations over Article 16 of CEDAW, con-cerning equality within the family, constitute a veritable

Moreover, upon marrying a Lebanese, a non-Lebanesewoman becomes Lebanese herself one year after theofficial registering of the marriage, according to Article5 of Law 15. Her children are granted full civil and polit-ical rights whether they reside inside or outsideLebanon, even if they have never visited the country. Incomparison, the child of a Lebanese woman married toa non-Lebanese is denied his/her natural rights. He/sheis considered a foreigner, without access either to freeschooling, free higher education, or free health care, isdenied access to employment in high-ranking publicpositions, and is prevented from running for publicoffice, voting, as well as being able to own propertyexcept under strict conditions.

Additionally, a Lebanese mother is not allowed toinclude her under-age children in her passport even ifthey reside with her in Lebanon, and has to go throughendless bureaucratic procedures that compel non-Lebanese husbands and children to renew their resi-dence card annually.

It is noteworthy that, as of 2003, the directorate-gener-al of General Security has granted long-term residencepermits or ‘courtesy residencies’ to Lebanese women’snon-Lebanese husbands and children, regardless oftheir nationality. However, this was a mere logisticalimprovement considering the exorbitant fees requiredfor such permits, making most people unable to benefitfrom them.

Women’s disadvantage when it comes to granting theirchildren the nationality can be traced back to inheritedtraditions and customs which consider the father to bethe head of the family. This primacy of the patrilineageprevalent in all regions must be altered now thatLebanon has ratified the Universal Declaration ofHuman Rights.

Since the certain and unquestionable truth is thatmaternal blood ties and other ties with the mother aremuch stronger than those with the father, it is unac-ceptable to sever the citizenship ties between motherand child.

Lebanese society has witnessed a humanistic and par-ticularly feminist movement to eliminate all forms of dis-crimination against women that impinge on all socialand political strata. However, one issue repeatedlyraised in the face of those demanding a change in citi-zenship laws is that of the Palestinian refugees. Theargument goes as follows: if the laws are changed,Palestinian men might seek marriage with Lebanesewomen with the intention of securing for their offspringthe Lebanese citizenship, thereby helping their perma-

nent settlement in Lebanon. This, of course, is a spe-cious argument whose outcome is the withholding ofwomen’s rights granted in the Universal Declaration ofHuman Rights. For, if it were true, then it should causelegislators to be equally wary of the outcome ofLebanese men marrying Palestinian women, whose chil-dren would thus acquire the Lebanese citizenship.

No matter what the pretexts are, the inequality in citi-zenship between men and women is a breach of theLebanese Constitution, which otherwise guaranteesequality among all citizens. The inequality is also abreach of international charters that stipulate the fullequality of the sexes.

Therefore, and in accordance with the Constitution andinternational charters, citizenship laws must be changedto render Lebanese women and men equal in grantingtheir citizenship to their children and non-Lebanesespouses.

Concerning Family RelationsArticle 16 of the Convention, concerning equality in thefamily, is of pivotal importance. It states:

1. All member states shall take all appropriate measures to eliminate discrimination against women in all mattersof marriage and family relations so that equality of thesexes is ensured:

a. The same right to enter into marriage

b. The same right to choose freely a spouse and to enter into marriage only with their free and full consent

c. The same rights and responsibilities during marriage and at its dissolution

d. The same rights and responsibilities as parents,regardless of their marital status, in matters relating totheir children; in all cases the interests of the childrenshall be paramount

e. The same rights to decide freely and responsibly onthe number and spacing of their children and to haveaccess to the information, education and means toenable them to exercise these rights

f. The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption ofchildren, or similar institutions where these conceptsexist in national legislation. In all cases the interests ofthe children shall be paramount

g. The same personal rights as husband and wife, includ-ing the right to choose a family name, a profession andan occupation. Same rights in owning, care-taking, run-ning and disposing of property

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obstacle to the amendment of personal status laws andgo against any attempt at legislating a new personalstatus law. Further, these reservations reflect the dis-crepancy between the Convention and local nationallaws, and hence they point to an absence of politicalwill to eliminate discrimination against women andensure equality of the sexes.

In any case, reservations ought to be voiced at the timeof signing the Convention and not afterwards: Lebanon’sreservations about the Convention on the Elimination ofall Forms of Discrimination Against Women were madelater and are, therefore, considered null and void.Moreover, Lebanon did not voice any reservations aboutthe International Convention on Civil and Political Rights(CCPR). This is particularly significant because CCPR isconsidered a reiteration and elaboration of the rights stip-ulated in CEDAW.

Additionally, the Convention states in Paragraph 2 ofArticle 28 that no reservations that go against its mainobject and purpose can be voiced. The aim and pur-pose are to eliminate all forms of discrimination againstwomen in political, social, economical, and culturaldomains.

It is, therefore, clear that reservations voiced aboutArticle 16 preempt the Convention of its content andundermine its texts, especially that of Article 5 on thenecessity for taking “all appropriate measures to mod-ify the social and cultural patterns of conduct of menand women, with a view to achieving the eliminationof prejudice and customs and all other practices whichare based on the idea of the inferiority or the superior-ity of either of the sexes or on stereotyped roles formen and women.”

Lebanon’s reservations to Article 16 keep women impris-oned in prevalent social, cultural and traditional norms,and hinder any attempt at renewal or reform within thefamily. Attempts to justify such reservations that lead toundermining the effects of ratifying the International Billof Human Rights which Lebanon did, by the restrictionsof Islamic law or Christian traditions, are not convincing,since in many Christian as well as Islamic states men andwomen enjoy total equality in rights.

There are major discrepancies in personal status lawsbetween Arab nations.

For example, the many amendments made by theTunisian state on July 13, 1956, prohibited polygynyand granted both sexes equal rights to file for divorcebefore a court of law, bearing in mind that Tunisia is an

Islamic state that follows Islamic teachings, as the intro-duction to its Constitution clearly states.

In this regard, it is important to mention the work ofreformer Taher Al-Haddad who reinterpreted theQur’an according to contemporary needs. He claimedthat the Qur’an restricted polygyny to four wives as afirst step towards curbing pre-Islamic customs thatallowed marriage to an unlimited number of women.According to Haddad, that was a first step towardsmonogamy. The second step, he said, was taken infavor of women’s rights, with the Qur’an’s demand thatall four wives be treated equally. Since such equalitywas unlikely to be achieved, it was advisable not tomarry more than one woman.

The main cause for Lebanon’s reservations lies in itssocial and cultural norms and behavioral patterns.These are deeply rooted in Lebanon and will remain sounless the state, obviously reluctant, takes serious mea-sures in order to eliminate discrimination againstwomen in legislative texts and daily practice.

Social development and prosperity are intimately linkedto the respect of women’s rights and to empoweringthem in their capacities to act and produce in all fieldsand domains. The Beijing Convention has clearlyemphasized that women’s rights are human rights,integral and indivisible.

On these grounds, it is incumbent on all states toimplement CEDAW without any reservations, especial-ly those concerning Articles 9 and 16, in order to estab-lish a true equality of men and women within the fam-ily and in all domains. This alone will compel religioussects to amend and develop their laws to the extentthat will make inevitable our establishment of a mod-ern state with a true conception of citizenry.

Moreover, and in order to avoid unnecessary socialtragedies, there must be an optional civil personal sta-tus law founded on the principles of equality, freedomof belief, and unity of legislation, which is based on theBill of Human Rights that does not distinguish betweenreligions, sexes or ethnicities.

On all these grounds, as well as on that of the uncon-tested fact and belief that the decline of women’s sta-tus leads to the deterioration and backwardness ofsociety, whereas their advancement leads to theprogress and development of the nation, it is importantthat women achieve their full rights.

Translated by Samar Kanafani

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Legislation for EqualityArticle 2 of the 1948 Universal Declaration of HumanRights affirms the right of each human being to enjoy allrights and liberties set forth in the Declaration withoutdistinction of any kind as to race, color, sex, language, orreligion, while Article 16 confers on men and womenequal rights regarding marriage and its dissolution.

The principle of equality was written into the LebaneseConstitution of 1926, Article 9 of which declares: “AllLebanese are equal before the law. They equally enjoycivil and political rights without any distinction as to sexor religion…”

In its preamble, amended in 1990, the Constitution adds:“Lebanon is committed to applying the Universal Declarationof Human Rights in all domains without exception.”

In addition, Lebanon has ratified several internationalconventions relating to human rights including, mostimportantly:- The International Covenant on Economic, Social, and

Cultural Rights in 1976- The International Covenant on Civil and Political Rights

in 1976

- The International Labor Office Convention (No. 100) concerning Equal Remuneration for Men and WomenWorkers for Work of Equal Value in 1953

- The International Labor Office Convention (No. 111) concerning Discrimination in Respect of Employmentand Occupation in 1960

- The Convention Against Discrimination in Education in 1962

And finally, the most important convention ratified byLebanon, in the context of this paper, is the Conventionon the Elimination of all Forms of Discrimination AgainstWomen ratified by 180 countries, including 17 Arabcountries.

This last Convention was ratified under the decree ofJuly 24, 1996, with reservation to three Articles (9, 16,and 29). The reservations constitute a contradiction tointernational law. It should be noted, in this context, thatin case of conflict, the provisions of international con-ventions prevail over national law.

The first reservation relates to Article 9 regarding nation-ality, which contradicts Lebanese law in that theConvention grants women equal rights with men to pass

Alia Berti Zein Former Member of the Board of the Beirut Bar Association President of the Legal Status of Women Commission, International Association of Lawyers

Women's Civil Rights in Lebanon

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Volume XXIII, Nos. 111-112, Fall/Winter 2005-2006 21Volume XXIII, Nos. 111-112, Fall/Winter 2005-200620

on their nationality to their children, while Lebanese lawdoes not. In Lebanon only the man gives his nationalityto his children. Women do not have this right except inrare circumstances. Furthermore, only the husband giveshis nationality to his wife. The opposite is not legallypermissible.

The second reservation is to Article 16 of the Conventionregarding equality of rights and duties in marriage and infamily relationships. Complying with this Article wouldinfringe on the provisions of personal status law, still rec-ognized in Lebanon as the sole legislative and juridicallaw.

Lebanese legislation is greatly influenced by the fact thatit needs to govern communities with different religiousbeliefs, whose coexistence forms the Lebanese nation.This multiplicity is the main reason behind the existenceof disparities in rulings that govern the various groups ofLebanese citizens. Some laws apply to all citizens whileothers apply only to members of agiven community. This clearly vio-lates the general principle of equal-ity of all citizens before the law.Thus, laws of inheritance, forexample, differ between Muslimsand Christians, and even betweenSunni and Shiite sects of theMuslim religion. For whereasChristian offspring of both sexesinherit similar proportions of theirdeceased parents' property, eachMuslim daughter is entitled to onlyhalf of what her brother gets. Inthe case of families that have onlydaughters, if they are ShiiteMuslims the daughters inherit all ofthe parents' property, but if theyare Sunni Muslims, male cousinsinherit a proportion of what thegirls' parents leave behind. Withinthe Druze sect, inheritance isaccording to the will of thedeceased.

Thus, inequality in some matters exists, not onlybetween men and women, but also between membersof the same sex, who happen to belong to different reli-gious sects.

Such deviation from the equality that the LebaneseConstitution embraces, however, concerns mainly familylaw, which applies to marriage, paternity, filiation, adop-tion, and succession. This is because the only authorizedmarriages on Lebanese territory are religious ones, con-

tracted respectively according to the codes of the variousreligious sects. Moreover, the Lebanese legislative systemrecognizes (tolerates, or permits alongside the localtrend of exclusively religious marriage) civil marriagesthat are contracted abroad. Such marriages remain sub-ject to the civil law of the country where the marriagewas contracted, with Lebanese civil jurisdiction beingresponsible for the application of those foreign laws,provided that they conform to the public order. Betweenthe different laws and courts that pertain to the variousreligious sects and the civil laws of the various countries,under whose authority the Lebanese may choose to getmarried, implemented by the Lebanese civil courts, mar-riage in Lebanon is subjected to very different condi-tions. This is a very strong and influential source ofinequality.

Women in Lebanese Legislation: Inequalities in thePenal Code Because of the diversity of denominations, citizens of

Lebanon are subjected to differentlaws and diversified fates, evenwhere situations and motives arethe same. And despite Lebanon'sratification of the Convention on theElimination of all Forms ofDiscrimination Against Women(CEDAW), there are many lawswhich discriminate against women,especially in penal law.

For example, Articles 487 and 488of the Lebanese Penal Code con-demn women who have commit-ted adultery much more severelythan men, and make proving theirguilt much easier than that of men.The penalty for the same crime ofadultery is three months to twoyears for the wife, and one monthto one year for the husband. Also,the definition of adultery for hus-band and wife vary. For him to be

accused of adultery he has to commit the act in the mar-ital home or install a declared mistress in a house forwhich he pays. But the wife may be accused of com-mitting the act anywhere and under any circumstances.

Moreover, the initial version of Article 562 of the PenalCode granted pardon for non-premeditated homicide orattack by a person on his spouse, relative, offspring, orsister surprised in the act of adultery or other illegitimatesexual relation with a third person. This article wasamended on February 20, 1999. At present, the perpe-trator of the homicide or injury would receive only the

benefit of the extenuating excuse. Both the old articleand the new one recognize the right of the males of thefamily to carry out private justice regarding the womenof their kin whenever they are guilty of a breach in thesexual rules.

Article 522 on the other hand, regarding the marryingof women who have been raped, abused, abducted,or seduced, states: “If a legitimate marriage contract isestablished between the perpetrator of one of thecrimes mentioned above and the victim, the pursuit ofthe perpetrator is halted, and if a sentence has alreadybeen issued, its execution is halted.” This Articleencourages forcing girls into sex for the purpose ofmarrying them against their volition, and thus violatesa most basic human right: the right to safeguard aperson's physical and emotional well-being. It alsogives the rapist or sex-offender the possibility of evad-ing punishment, by giving him the option of marryingthe victim. It is noteworthy thatArticle 503, which relates to rapeand forcing someone into sex,sentences anyone who forces anyother person (except for thespouse) into sex through violenceand intimidation to at least fiveyears in prison with hard labor.The prison term is no less thanseven years if the victim isyounger than 15. Therefore, theoffender can seek to marry thevictim through physical and emo-tional coercion and thus escapethe punishment of the law,despite the ruling, by the sameLebanese legislation, that a mar-riage is considered null when itlacks the element of ‘free con-sent.’ Such rulings of theLebanese Penal Code, in additionto Article 504 which allows theabuse (rape) of a wife by her hus-band without legal consequences, need to be amend-ed out of respect for women and in order to observetheir human right to dignity.

In ratifying the Convention on the Elimination of allForms of Discrimination Against Women, Lebanonagreed to its provisions except for the above-mentionedreservation. Article 2 in paragraphs (f) and (g) (not includ-ed in the reservations) calls on the states which ratifiedthe convention to undertake all of the appropriate mea-sures, including legislation, to modify or abrogate all

laws, customs, practices, or penal codes which discrimi-nate against women. As a consequence, Lebanon mustwork to apply these provisions and abrogate the inequal-ities contained in Articles 487, 503, 504, 522 and 562 ofthe Penal Code. A draft law in this regard has been sub-mitted to the parliamentary Commission forAdministration and Justice within the scope of the revi-sion of the Lebanese Penal Code, which has not beenreviewed since it was promulgated in 1943.

Some Amendments towards EqualityOn the positive side, some legislative measures, in thedirection of equality, have already been taken. Thus,Lebanon was the first Arab country to recognizewomen's political rights in 1953 and to ratify theInternational Convention on the Political Rights ofWomen in 1955 without any reservation.

Lebanon also recognized equality between the sexesregarding inheritance in the non-Muslim communities in 1959.Moreover, in 1960 Lebanon autho-rized married women to keep theirnationality while at the same timeadopting that of their husbands.

Furthermore, in 1987 social securi-ty made the retirement age 64 forboth men and women. Beforethat date the retirement age was55 for women, and 60 for men.

Married women recovered theirfull capacity to testify before allauthorities in 1993. The lawimposing male testimony in prop-erty contracts was amended andthe specific mention of 'male' waseliminated.

Where commercial law is con-cerned, married women have since

1994 been entitled to engage in commerce without theirhusband's authorization. They have been enjoying fullrights to draw up all deeds in the interest of their com-mercial enterprises. Moreover, it should be noted that, inLebanon, couples have the option to include in theirmarriage contracts the precondition of the separation ofassets.

These are good steps on the long road towards theachievement of equality. Much more needs to be doneto fully attain it.

Laws of inheritance ...

differ between

Muslims and

Christians, and even

between Sunni and

Shiite sects of the

Muslim religion

Lebanon was

the first

Arab country

to recognize women's

political rights

in 1953

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quacy of the government in implementing theConvention's provisions.

Second: They urged the Lebanese government to devisestrategies, policies and plans and to take appropriate mea-sures, including the setting of time-bound targets for mon-itoring and assessment, to counter discrimination againstwomen in areas where prejudice is still widespread.

As far as the legal framework is concerned, the Lebanesestate was urged to make every effort to effectively cancelor amend discriminatory legislation. Moreover, it wasencouraged to draft new legislations that incriminate dis-crimination and violence against women, and to with-draw reservations to some articles of the Convention,calling on it “to adopt a unified personal status codewhich would be applicable to all women in Lebanon, irre-spective of their religious affiliation.”

The members of the CEDAW Committee also discussedthe situation of women at the political level. They werenot content with the leap in the percentage of womenrepresentatives that has doubled (from 2.3 percent to 4.6percent) and did not find it praiseworthy. According tothem such a percentage is still very low and is an indica-tor that the Lebanese state did not take sustained mea-sures to make a real difference. Some members notedthat the state failed to take concrete and effective mea-sures to confront sexist attitudes and the stereotyping ofwomen, clearly the product of socialization within thefamily, i.e. in the private domain.

At the institutional level, some members noted that inorder to investigate the seriousness of the Lebanese statein implementing the Convention, one must examine theprogressive advancement of the governmental organiza-tion created to administer women's affairs and mandat-ed to officially monitor the follow-up of the implementa-tion of CEDAW and the level of support given to thisorganization. According to the CEDAW Committee, pro-viding the above-mentioned organization with the finan-cial resources and developing its human resources willallow it to carry out its mission more effectively. Somemembers of the Committee urged the Lebanese state tocooperate and coordinate “more efficiently” with NGOsin the implementation of the Convention “while assum-ing full responsibility for fulfilling its obligations under theConvention.”

Discussion/DefenceThe all-women Lebanese delegation chosen to discussthe report with the Committee resorted to the followingjustifications in order to cover up Lebanon's failure toeliminate discrimination against women:1. They mentioned, in detail, some positive privileges

Lebanese women enjoyed prior to signing theConvention – such as some non-discriminatory laws onproperty rights and legal proceedings. They elaboratedon the progress achieved after ratifying CEDAW by pro-viding some statistical figures in the fields of education,work, and health.

2. They highlighted the articles in the LebaneseConstitution and in Lebanese legislation that implicitlyand indirectly address gender equality in rights and oblig-ations – such as the provisions of the preamble of theConstitution, an integral part of the Constitution, thatgives dominance to international treaties and their provi-sions over national laws and legislations – all in anattempt to address the issue as to why the LebaneseConstitution does not explicitly outlaw gender discrimi-nation.

3. They mentioned the Committee's intimate collabora-tion with civil society and recommended possible part-nership between the governmental institutions and civilsociety organizations in order to improve women's con-ditions. It is important to note that this collaboration wasrepeatedly highlighted during the discussion sessionwhile the delegation was trying to answer questionsregarding policies and measures taken to combat gender-based violence.

The delegation emphasized the impact of religious sec-tarianism on dividing the Lebanese people, where per-sonal, familial and sometimes even civic issues are con-cerned. The most conspicuous example of this impact ismanifested mostly in family laws. These laws weredeclared to constitute the basis of Lebanon's reservationsto some items of Article 16 of CEDAW.

Defence and Declaration of ConstantsIn the discussion session that took place with the CEDAWCommittee over the issues raised in the first and secondofficial CEDAW reports,8 the Lebanese delegation wasvery well prepared. Its members, especially its president,were very articulate and well endowed with argumenta-tion skills. Armed with ample information on the condi-tions of Lebanese women, they were able to link the cur-rent state of affairs of Lebanese women to the generalsocial context on the one hand, and to the requirementsof the Convention on the other. Indeed, the delegationrefrained from discussing certain issues that were consid-ered 'Lebanese constants' which, if tackled, would stim-ulate conflicts among factions of the Lebanese public.

If the issue of nationality is taken as an example, we real-ize that Lebanese law expressly distinguishes betweenwomen and men. If a Lebanese man marries a non-Lebanese woman, the latter will obtain Lebanese nation-

Azzah Shararah BeydounProfessor of Psychology, Lebanese UniversityMember of the National Commission for Lebanese Women

Arguments Valid for Once Only

More than a year has passed since Lebanon submitted itssecond periodic report to the CEDAW Committee(Convention on the Elimination of all Forms ofDiscrimination Against Women)1 at the United Nations inNew York. The National Commission for LebaneseWomen (NCLW)2 was assigned the task of preparing thatreport, and NCLW in turn appointed a committee of itsmembers to monitor the process of this preparation. Thereport is essentially an overview of the conditions ofLebanese women within the legislative, political, eco-nomic, educational, health, social, and cultural sectors.Moreover, it briefly highlights the geographical, political,administrative, institutional, social, and cultural environ-ments of the country.3

In July 2005, an NCLW delegation4 represented theRepublic of Lebanon in order to carry out a constructivedialogue with the CEDAW Committee5 in a plenary ses-sion at the United Nations headquarters in New York. Thedelegation outlined Lebanon's achievements in improv-ing women's conditions, as per the said report, and high-lighted the efforts exerted to adequately implement theConvention during the years that followed its ratification,emphasizing the obstacles that faced the implementationprocess. The 23 members of the CEDAW Committee con-

gratulated Lebanon on the progress achieved in theadvancement in women's conditions in some areas, yetthey also questioned why some articles of theConvention were still not implemented. The Committeeheld the Lebanese government accountable for this delay.

Discussion/QuestionsFirst and foremost, it must be said that the officialLebanese report was candid and straightforward in outlin-ing women's conditions in our country. Neither theauthors6 of the report nor the committee responsible for itspreparation7 made use of self censorship when giving theirpresentations. These presentations were based on statisticsand field studies that were exhaustive in some instancesand only partial in others. While the Committee welcomedsuch candidness, it noted with concern the state's failureto work actively to change the discriminatory situationagainst Lebanese women, described by the report.

The interventions of members of the internationalCommittee, during the four-hour discussion period withthe official Lebanese delegation, revolved around twomain aspects:

First: They expressed their concern regarding the inade-

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ality. She will enjoy all the rights of a female Lebanese cit-izen one year after registering the marriage and attend-ing to the required administrative formalities. However,the same does not apply to the non-Lebanese husbandand the children of a Lebanese woman. They do not havelegal rights to Lebanese nationality. The argument used inthis context is that the Lebanese state applies the princi-ple of 'jus sanguinis' or blood relations of the fatherrather than 'jus soli' (when children are born in Lebanon)as a necessary condition for gaining Lebanese nationality.This, despite common-sense knowledge that paternitycan be insured only by the mother's testimony “if themother speaks the truth” as the Lebanese saying goes orby means of DNA tests. Nevertheless, members of theCommittee did not go into such details and were notinterested in debating the presented arguments or dis-cussing the various possibilities. Instead, they focused onthe repercussions of the existence of such a law.According to the CEDAW Committee, the withholding ofcitizenship from the woman's husband and children leadsto flagrant unfairness. The exis-tence of such injustice was a suffi-cient argument to call on theLebanese state to stretch the mean-ing of 'jus sanguinis' to encompassthe mother, as well as the father, inorder to eliminate blatant discrimi-nation.

Introducing administrative mea-sures such as granting the non-Lebanese husband and childrenfree residence permits, consolationprizes, are far from making up forsuch harmful discrimination. Othersuch measures include theemployed wife/mother's right toinclude her non-Lebanese family inher Social Security registry and her right to benefit fromthe allowances of the state cooperative if she is a civilservant. According to the CEDAW Committee such'charitable' measures or any similar ones are patheticand fall short of making a positive impression. Moreeffort should be exerted by the Lebanese state in orderto withdraw its reservations to Paragraph 2 of Article 9of the Convention. Other measures are meaningless asthey fail to alleviate the discrimination Lebanese womenmarried to non-Lebanese men suffer from. Moreover,they lead to acceptance of such discriminatory practices,as they make the discrimination appear as a lesser 'evil'than it actually is.

The Lesser of Two Evils? Needless to say, insisting on depriving the children of aLebanese woman married to a non-Lebanese of Lebanese

nationality is a policy aiming at reducing intermarriagesand preserving the delicate and 'treasured balance'between religious communities. Intermarriages – or, asthe French used to call them, 'white weddings' betweenLebanese women and non-Lebanese men belonging to acertain religious majority, namely Muslim Sunnis – isbound to disrupt the 'treasured' sectarian (religious) bal-ance. The ordeal of Lebanese women married to men ofother nationalities, especially Palestinian nationals, is anexample that constitutes an almost final dissuasion to allLebanese women. Indeed, out of 840 women residing inLebanon who got married to non-Lebanese menbetween 1995-2000, those married to Palestinians didnot exceed 16 (see As-Safir newspaper, June 22, 2005).In this context, it is worth noting that a non-Lebanesewife, even if she happens to be Palestinian, can be natu-ralized; which means that the latter – as well as her chil-dren – become Lebanese citizens with full rights andobligations. Thus, the Nationality Act in our country doesnot only differentiate between men and women but also

between categories of women,where a woman who is notLebanese by birth receives bettertreatment than a Lebanese womanmarried to a non-Lebanese. It isworth noting that CEDAW calls forthe elimination of discriminationagainst all categories of women onLebanese territories, this was alsomentioned by one of the CEDAWCommittee members in the contextof talking about foreign domesticworkers in Lebanon.

An ongoing concern of theLebanese is the preservation of thesectarian balance, given that manystrive to maintain stability through

safeguarding the 'Lebanese formula.' This concernmerges with another one enshrined in the LebaneseConstitution, namely the rejection of naturalization ofPalestinians in Lebanon in order to safeguard the right ofreturn (of the Palestinians to Palestine). Any debate overthose two issues (naturalization and return) is almost ataboo. Even though these side issues were not especiallytackled during the plenary session, discussion of themajor issue of women's right to pass on their nationalityto their husbands and children, highlighted the implicitrole the sectarian system plays in generating discrimina-tion against women in our country and which constitutesthe main obstacle facing the withdrawal of reservationsto Paragraph 2 of Article 9 of the Convention.

Discrimination and Religious PluralismThe sectarian system discriminates against women and

does not recognize the total equality between womenand men stipulated by the Convention. This is apparentin the Nationality Act. Besides, it is also evident in thePersonal Status Codes. The Lebanese delegation tried toexplain the prevalent gender inequality as based largelyon the multiple forms of religious legislations that formthe basis of the social and political system in Lebanon.Members of the delegation also mentioned that theLebanese Constitution protects the rights of religiouscommunities and delegates to them the management ofpersonal status. The CEDAW Committee expressed itsconcern about the absence of a unified personal statuscode that guarantees equality between different cate-gories of women on the one hand, and between menand women on the other. It also questioned the short-comings of delegating personal status matters to reli-gious communities, an act which is damaging to women.Given that the confessional system delays the achieve-ment of gender equality guaranteed by the Convention,the CEDAW Committee urged the Lebanese state to“adopt a unified personal status code that would beapplicable to all women in Lebanon, irrespective of theirreligious affiliation.”

We, members of the delegation, restricted ourselves tothe two examples above though they are by no meansthe only ones that highlight religious pluralism as aLebanese 'attribute' capable of impeding strategiesadopted by the state to bring about equality betweenmen and women in our country.

Though it might seem that the comments and recom-mendations9 of the CEDAW Committee indicate that it isnot taking into serious consideration the so-called cultur-al specificities of Lebanese society, its position seems tobe more complex than this. The Committee requestedthat the Lebanese delegation provide it with a detaileddescription of the personal status codes that govern thecountry's 18 different sects. However, even though theCEDAW Committee was aware of the cultural specifici-ties of Lebanese society, this is not necessarily a preludeto the recognition of the necessity for a plurality of codes,nor a reason to acquiesce to their discriminatory provi-sions.

On the contrary, such knowledge will most probably con-stitute a solid reference in determining the discriminatoryareas and details in those codes and will serve to enrichthe Committee's argumentation supporting its recom-mendation – the necessity to adopt a unified non-dis-criminatory personal status code that will enable the stateto withdraw its reservations to certain items of Article 16of the Convention.

It is worth noting that the CEDAW Committee takes

into consideration the cultural specificities of the differ-ent countries. However, exposing the cultural specifici-ties within a general multicultural meeting under theauspices of the United Nations, and within the frame-work of a constructive dialogue, is bound to shed lighton the arbitrary and indirect role the cultural variablesplay in sanctioning discrimination against women. Thisis one of the main purposes of the public dialogue.Moreover, the most tangible objective of that meetingwas to urge state parties signatory to CEDAW to over-come all the obstacles – the cultural ones included – inorder to abide by the obligations required once theConvention is ratified.

The pressure imposed by the international communitylends support to the state and assists it in facing the sec-tarian authorities and their supporters, that impedeimplementation of CEDAW and often use the pretext of'cultural specificities' to cover their discriminatory posi-tions. Hence, given that the Lebanese Constitutionembodies the principles of precedence of treaties andinternational conventions over local laws and legislations,the state may accordingly rely on the international com-munity's recommendations and requirements to draftpolicies promoting gender equality.

The Positive ShockIt is evident that the official Lebanese delegation receiveda positive shock in July 2005 during the general 'con-structive dialogue' session that took place at the UnitedNations. Based on the deliberations that took place withthe CEDAW Committee, it was concluded that theLebanese state can no longer monitor and report theexpected progress achieved by Lebanese women, normay it identify with the achievements of civil society. It isinadmissible to use the excuse of cultural specificities tocondone discrimination against women, nor is it accept-able to use economic crises or development priorities aspretexts for not combating such discrimination. Such pre-texts and rationalizations constituted the substance ofthe first and second reports and the core of argumentssubmitted to this year's session.

The questions that might arise are: Can the state submitthe same excuses in the next CEDAW report? Can itmake use of the same arguments repeatedly? What jus-tification will the state give to explain the religious com-munities' monopoly over the personal status of its citi-zens? Why do some reservations to the Conventionremain unchanged?

Means of its InvestmentThe after-effects of the meeting went beyond the issue ofdrafting and discussing the official report with theCEDAW Committee. The NCLW is the official Lebanese

An ongoing

concern of the

Lebanese is the

preservation of

the sectarian

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state institution for women and finds itself facing the dif-ficult and challenging task of implementing theConvention. In its comments and recommendations, theCEDAW Committee detailed what is expected of theLebanese government so that no one can claim ignoranceany more. Given that the NCLW lacks the institutionalinfrastructure (material and human resources, clear pre-rogatives, professionalism, and full-time employment,etc.) needed to start publicizing and promoting theConvention within Lebanese society (as dictated in its pre-amble), how could it move forward with its implementa-tion? It is important to note that for five decades women'sNGOs in Lebanon have been striving progressively and dili-gently in their struggle for gender equity and the advance-ment of women. Moreover, they have been activelyinvolved in overseeing CEDAW's implementation. But, willthe state form a partnership with those NGOs in theirstruggle to counter discrimination against women?

In this respect, it is important to shed light on the jointeffort that was established during the preparation for theBeijing Conference10 between the Lebanese state,women's NGOs, and women's rights activists. However,the partnership between the state – represented by theNCLW – and the women's NGOs is required to be theresult of initiatives and activities referred to in the secondofficial CEDAW report in the form of common programsbetween both groups – as is the case in some programsof the Ministry of Social Affairs and the Ministry of Health.A comprehensive alliance between all governmental andnon-governmental forces constitutes a necessary condi-

tion to move forward towards new levels and fields ofaction along the path already designated, under a unify-ing umbrella with new impetus and a clearer horizon.

Nevertheless, such an alliance, in one of its aspects, willhave to deal with the sectarian issue, one of the 'con-stants' within Lebanese society. Is the NCLW, whosestructure is essentially based on religious pluralism andsectarianism, ready to take part in the struggle againstconfessionalism that was adopted by NGOs in theirattempt to “eliminate all forms of discrimination againstwomen” by way of implementation of the Convention?

The head of the Lebanese delegation noted, at the endof her speech in the discussion session at the UnitedNations, that “peace is fundamental to give women'sissues the attention they deserve.” However, the excuseof the absence of the peace (longed for in our tumul-tuous region) and lack of 'social peace' (what if suchpeace is based on the sectarianism, the basis for main-taining discrimination against women in our country?) asa cause for the regression in women's conditions and anecessary condition for achieving equality. It appeared tous, in that meeting, that probably the value of such inter-national conventions lies in their expectation of, andinsistence upon, continuous progress towards the gener-ally envisaged aims. In this case, the aim was the totalimplementation of CEDAW, despite any particular cir-cumstances or pending problems.

Translated by Nadine El-Khoury

1 Lebanon ratified CEDAW in 1996 and made reservations toitems of Article 16 that contradict civil status codes of religiouscommunities and to a paragraph of Article 9 related to theNationality Act, in addition to reservations to an article oninternational arbitration not specifically related to women'sissues.2. The National Commission for Lebanese Women (NCLW) isan official Commission whose members are appointed by theCouncil of Ministers. They are women “whose activism forwomen's issues is recognized.” It has a consultative mission tothe state administrations and institutions, and a coordinationmission between those administrations and institutions andcivil society, as well as between Arab and international com-missions dealing with women's issues.3. The report is available to the public at the NCLW office inHazmieh, and on the NCLW website: www.nclw.org.lb4. The delegation was formed by Layla Azuri Jumhuri, head,Azzah Shararah Beydoun, Ghada Hamdan and JumanahMufarraj, members.5. The Committee on the Elimination of all Forms of

Discrimination Against Women (the CEDAW Committee) isformed of 23 members of the United Nations, delegated bythe General Assembly to supervize and monitor the imple-mentation of the Convention in state parties, where eachstate party appears before it once every four years.6. The following researchers drafted and supervised the pub-lication of the report: Maha Al-Muqaddam, Azzah ShararahBeydoun, Layla Azuri Jumhuri, Jumanah Mufarraj, MargueriteHelou, Fadya Hoteit, Rana Khoury, Becharah Hanna, HiamKaai.7. The authors of the report and the committee supervising itspreparation are male and female researchers specialized in theareas of concern covered by the Convention.8. The first and second periodic reports were discussedtogether.9. Available on the NCLW website: www.nclw.org.lb10. The Fourth International Conference for Women held inBeijing issued recommendations to the member states, includ-ing Lebanon, on main areas of women's issues.

Endnotes


Lebanese society is multi-religious. The state legally rec-ognizes 19 sects, leaving to each matters of personal sta-tus pertaining to its own community. Thus, each sect isgoverned by different laws and has its own courts toimplement them. The different codes discriminatebetween men and women of the same sect, as well asbetween men and men and women and women, of dif-ferent sects. This is in addition to the discrepancies in cus-toms and traditions between the various communities.

The discrimination against women appears at the social andlegal levels. The elimination of legal discrimination is per-haps easier than that of social discrimination, since the for-mer ends with the amendment of legal texts and the enact-ing of new laws, but the latter requires long-range and per-sistent efforts to effect change in education and culture.Religion as well as deep-rooted traditions and ideologiesmay constitute significant obstacles in the way of such anendeavor. Thus, in this paper, after presenting two problemsof such discrimination, I shall propose some legal amend-ments, that may also be effective at the social level.

The ProblemsHistorical BackgroundLegislation that discriminates against women is mostly

found in personal status laws. But other forms of legis-lation also harbor considerable discrimination that stemsfrom far-reaching historical origins. Such discriminationgoes back to old legislation which did not recognizewomen as citizens, on the pretext of their lack of intelli-gence. Claims like the famous Roman jurist Gaius' that:“woman is weak of mind”1 seem to have dominatedlong stretches of history before and after his time, witha far reaching impact on legislation, in general. Andalthough lately the amendment of some discriminatorylegal texts is gradually taking place, it seems that womenwill continue to suffer from the implementation of dis-criminatory provisions, especially in matters of personalstatus that the different religious sects consider to bebased on divine inspiration. This, despite the fact thatsome of these provisions, such as giving fathers morerights than mothers over their children, have no basis inany revealed religion.2

As it is beyond the scope of this paper to go into greatdetail regarding the status of women in all the existingcodes of personal status laws in Lebanon, I will restrictmyself to some instances of the discrimination againstwomen by various officially recognized sects in the mari-tal situation and in inheritance.

Sonia Ibrahim AtiyahAttorney at Law

Proposed Procedures toFight DiscriminationAgainst Women inMarriage and Inheritance

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Discrimination in Marital Relations:- Both Christianity and Islam seem to consider the hus-band as the head of the family. From this, there ensuesome biased moral precepts, like the wife's obedience tothe husband, as well as biased legislation. In rare cases,as in stipulating that the husband must provide for hiswife and family, discrimination favors the wife. But thegeneral trend is towards legislation that favors husbands,as in the following examples:- Both of Muslim husbands and husbands of the Israelisect have the right to chastise their wives.- A Muslim husband has the right to marry up to fourwives. - A Muslim man may marry a non-Muslim woman pro-vided the chosen wife's religion is one of the revealedreligions (Christianity or Judaism) but a Muslim womancannot marry a non-Muslim.- A Sunni Muslim husband may divorce his wife in herabsence and without her knowledge, without cause, andwithout due legal process. A Sunni or a Shi'a husband isentitled to revoke the divorce, within the period of the100 days ('iddah) required before the divorce becomesfinal. Either of the two husbands has the right to demandhis wife's return to him, without her consent. Moreover,in both Islamic sects divorce is very easy when wanted bythe husband and very difficult when wanted by the wife.Indeed, for a Shi'a woman, to divorce her husband with-out his consent is very close to impossible. - Where child custody is concerned, most sects give thepreferential right to the father, and sometimes even toother male members of the father’s family.

Proposed SolutionIn dealing with discriminatory legal texts in matters of per-sonal status we could, in an initial phase, amend laws thatdo not contradict the established religious doctrines, such aslaws that allow or prohibit divorce, equally for the two part-ners, and laws that determine the period of custody of chil-dren and laws having to do with mothers' rights over theirchildren, which no religion explicitly relegates to a status lessthan that of fathers' rights.

In a second phase, it is advisable to transfer the role of rul-ing and implementation of judgments, in matters of per-sonal status, from religious to civil courts. This will unify thecourts and increase their efficacy as well as their profession-alism. It is also an appropriate preparation for phase three.

In a third phase we can introduce a civil law that governs allcitizens, regardless of their religious affiliations, except forthose who choose to remain under the jurisdiction of thelaws of their religious sect. Phase two, which has alreadytaken everyday legal matters from the hands of the religiousauthorities, would have hopefully prepared them to acceptphase three.

Poverty: Discrimination in InheritanceIt is a fact that poverty is more prominent among women.Indeed, United Nations' commissions have recently givena lot of attention to what they have come to call “thefeminization of poverty.” Women's economic weaknessstems largely from lack of education. One other factorthat contributes to the relative impoverishment ofwomen is the discrimination against them in laws thatdeal with inheritance.

The reason for speaking of inheritance laws in Lebanon inthe plural form is the absence of a unified code applica-ble to all Lebanese citizens.

In Roman times, different religious communities appliedtheir own traditional and private laws, yet did not stopshort of applying Roman Law where it did not contradicttheir religious beliefs. Later on, the spread of Islam didnot change the situation, where non-Muslim communi-ties continued to apply their own rules and those inspiredby Roman legislation, until the end of the eighteenth cen-tury.

With the beginning of the nineteenth century, and asthe dominance of the Ottoman Empire and its centralauthority grew stronger, Islam, according to the HanafiSchool of jurisprudence, was the official religion of theEmpire and became the only source of legislation. Allsubjects of the Empire, whether Muslims or not, appliedthe Islamic laws in matters of inheritance and successionby will and testament. Thus, Muslim religious courts hadjurisdiction in these matters for Muslims and non-Muslims.

The fall of the Ottoman Empire after World War I endedthe dominance of the Hanafi School of Islam as one lawfor all citizens.

On January 27, 1926, the Mandatory French Governor ofLebanon issued legislative decree No. 2503 recognizingthe Ja'afari (Shiite) school and instituting Ja'afari religiouscourts with jurisdiction in matters of personal and familystatus for the Shiite Muslims.

A law promulgated on December 9, 1930 gave the Druzesect rights of jurisdiction similar to those of the Sunni andShiite courts. Accordingly, a law for personal and familystatus for the Druze sect was promulgated on February23, 1948.

In the post independence era, June 23, 1959 a civil lawwas issued regulating matters of inheritance for allnon-Muslims. This law set up and defined new rules forinheritance, the most important of which is equalitybetween men and women in matters of inheritance.

Here, it is worth mentioning that the Arabs beforeIslam denied women all inheritance rights: These werea privilege of men, as they were the only ones capableof carrying arms to defend the tribe. Islam grantedwomen the right of inheritance on the basis of atwofold share for men according to the Qur’anic versesaying: “a male shall have the share of two females.”(Qur’an IV, 11)

In short, I would say that the inheritance laws in vigor andapplicable in Lebanon, are: 1. Islam according to the Hanafi School for Sunni Muslims 2. Islam according to the Ja'afari School for ShiiteMuslims 3. The Law of February 23, 1948 as amended by the lawof July 2, 1959 for the Druze community 4. The inheritance law of June 23, 1959 for all non-Muslims (i.e. Christians, Jews and all other religions)

In view of the above mentioned laws, the status ofwomen in matters of inheritance is as follows:

Ja'afari SchoolAll Islamic sects including Ja’afari apply the rule of atwofold share for males, while the Ja'afari School dif-fers in that a daughter together with her descendents,exactly as a son, are 'exclusive' heirs, in the meaningthat a brother of the deceased does not share in theestate with the brotherless daughter(s) of the latter,who is (are) entitled to the whole estate.

Hanafi SchoolThe daughter in this School cannot be an exclusive heir.In certain cases a male inherits while his sister is deprivedof the inheritance, for example: The niece is deprived ofthe estate of her paternal uncle who dies without anissue, while her brother inherits his uncle.

Druze SectThe Druze community is subject to the rules of the HanafiSchool when a member of the sect dies intestate. Yet,their law of 1948 has freed their will from all and anybonds. A Druze is free to give whatever part of his estateto whomever he chooses, thus permitting him, if hechooses to do so, to be fair in giving equal shares to hissons and daughters. On the other hand, this can becomea ground for discrimination in view of the prevailing men-tality in certain social settings, where the father candeprive his daughter(s) and/or his wife and any of his‘legal’ heirs completely of any share in his estate by virtueof his testament.

The 1959 Inheritance Law for Non-Muslims Although this law has decreed equality between menand women in matters of inheritance we still frequent-

ly see cases where parents try to bypass it through legalprocedures such as contracting a sale of real or fixedproperty between father and son, or funneling moniesthrough a joint bank account covered by the law ofbank secrecy. Therefore, and for the purpose of elimi-nating this discrimination, we should follow either oneor both of the following ways: On the one hand, weshould work on social enlightenment to change thetraditional and inherited ideas of discrimination againstwomen, in order to make parents abstain from usingillegal ways to deprive their daughters of inheritance infavor of their sons, and in order to make the femalesabstain from relinquishing their rights in the inheri-tance in favor of the males in their families. On theother hand, amendment of existing laws should takeplace as well as the enacting of new laws equitable towomen.

Proposed SolutionsIn this respect, I have prepared some projects for enact-ing new laws in parliament, of which I shall mention twoprojects: one related indirectly to the issue of inheritanceand the other constitutes one method to ward off pover-ty from women.

I. On December 17, 1982, I presented a law project to thepresident of the Republic through the appropriate minis-ter under the following title: The necessity for women tokeep their maiden family names and for children to carryboth family names of their father and their mother as isthe case in many countries such as Switzerland,Venezuela, and others.

The Text of Law Project 1Raison d'être:The woman adopting her husband's family name andneglecting her maiden name, even at the social level, hasthe following risks:1. The vast majority of society considers the female off-spring alien to her family since birth, on the basis that shewill one day carry her future husband's family name andbelong to his family. Hence, fathers, and even mothers,try to deprive their daughters of some of their wealth,especially real estate, for the purpose of protecting thefamily wealth from outsiders (the daughter's children andhusband).2. In the case of fathers having children by differentwives, it will be unknown which is the mother of each ofthe children. In addition to the social importance of thechild belonging to his mother as well as to his father, car-rying both parents' family names has a positive financialeffect on the child, as he/she will no longer be consideredan alien to the mother's family and consequently will notbe deprived of some of the wealth of that family. Based on the above, and in spite of the fact that official

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transactions are carried out in a woman's maiden name,I have suggested that legislative measures be taken inorder to oblige women to keep their maiden familynames in all aspects of life, and to make children, as well,carry the family names of both their parents.

This law project, if implemented, will have a psychologi-cal effect that encourages families to treat daughters andsons in an equal manner, especially in matters of inheri-tance.

II. On the same date I presented a second law project tothe president of the Republic through the same minister,to help in solving the problem of women's poverty. Thetitle was: Enacting a new law that imposes upon a cou-ple to be married the choice between the system of com-munity-property or that of separate-property by pre-nup-tial agreement and mutual consensus.

The Text of Law Project 2Raison d'être: A husband and wife form the nucleus of a family.Together they raise their children and tend to theirupbringing, education and needs. In most cases thewife dedicates herself and her time to her basic role ofmotherhood and house affairs, abandoning any otherjob or profession or role she can play in society, whilethe husband works for securing the financial income tothe family. Lebanese law adopts the system of separateproperty, considering all property or riches acquired bythe husband during marriage to be owned individuallyby him. Such a system is frequently unfair to the womanwho dedicates herself solely to the role of motherhood.In case of separation, such a wife has no share in theproperty acquired through the work of the husband andis left penniless and without income. She is oftenunqualified for work outside her house, for her lack oftraining at a young age and her inability to be trainedafter a certain age.

The outcome of the above is that Lebanese law allowsthe husband to benefit from his wife's work and effortsin house-keeping and bringing up the children, whileshe is not allowed to share the fruits of his work withhim.

It appears that the French legislator has taken all this intoconsideration. French civil law has thus given the couplethe right to choose the system that suits them best, forthe management of their financial affairs, during mar-riage, and has left to them the possibility for change inthe future. According to the system of 'Separation deBiens' each spouse keeps her or his estate without shar-ing it with the other spouse. While under the regime ofcommunal-property, and from the moment the marriage

takes place, all wealth acquired during the marriagebecomes the property of both partners. This same ruleapplies to income from property as well as any otherincome.

The categories of wealth that remain solely for eachspouse according to the regime of community-propertyare the real estate belonging to either spouse prior tomarriage, the movables related to his/her work, personalclothes, art works, and family souvenirs. Moreover, inher-ited estates or gifts during marriage remain the propertyof the beneficiary.

Based on the above, I have suggested the enactment ofa new law giving the couple the right to choose byprenuptial agreement the regime that suits their situa-tion, and leaving for them the possibility to change in thefuture.

This law project, I sincerely believe, shall have a positiveeffect in curbing the bad effects of discrimination againstwomen, especially in solving the problem of women'spoverty. Therefore, the status of the female in the matterof poverty can be improved by means of efforts under-taken on the legal level and such efforts are ultimatelybound to impact the social level, as shown by the aboveproposed solutions.

Endnotes1. It is noteworthy in this context that Fatima Mernissi inBeyond the Veil argues that whereas in the West womenwere discriminated against on the basis of their inferiorintelligence, in the old traditions of the Arab world societyworked to curb the power of women because it wasbelieved that they were of superior intelligence (cunningkid). 2. In the holy books, from the commandment “honor thyfather and thy mother” to Prophet Mohammad’s conjorn-ing that one attends to one’s mother thrice before attend-ing to one’s father, it is clear that no preferential treatmentto fathers compared to mothers is done. The only excep-tion is Prophet Mohammad’s command to call people bytheir fathers’ names.

Dr. Bashir Bilani, Qawanen al-Ahwal al-Shakhsiah fiLubnan (Personal Status Laws in Lebanon), Beirut: Dar al-'Ilm Lilmalayeen, 1971.Dr. Sobhi Mahmasani, Al-Mabadi' al-Shar'iyah walQanuniah (The Principles of Shari'a and Law). Beirut: 1959(second edition).

References

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Lina Osseiran BeydounWomen’s Committee, Foundation for Human and Humanitarian Rights – Lebanon

Lebanese Women and Discriminatory Legislation: The Case of Nationality Law

Background: Nationality Law from an InternationalPerspectiveNationality is a legal relationship between the individualand the state, but goes beyond that to provide individu-als with a sense of belonging, security, and protection,and determines the individual's ability to fully exercise allhis/her citizenship rights. Nationality and citizenship are,therefore, interrelated and intertwined.

The right and need of every individual to acquire anationality has been recognized and emphasized in inter-national law. The Nationality Treaty (The Hague, Holland,1930) tackled the issue of nationality and urged all statesto regulate it. While recognizing the right of countries todetermine the criteria for granting nationality, eachaccording to its own laws, this treaty urged all countriesto do so within the recognized principles of the national-ity law and in accordance with international treaties. TheUniversal Declaration of Human Rights (UDHR, 1948) inits preamble affirms “faith in the fundamental humanrights, in the dignity and worth of the human person andthe equal rights of men and women…” Article 2 reaf-firms equality of all rights and freedoms set forth in theDeclaration without distinction of any kind. Furthermore,the International treaties of 1966, the International

Covenant on Civil and Political Rights (ICCPR) and theInternational Covenant on Economic, Social and CulturalRights (ICESCR) assert the equality of human beings, andtheir civil, political, social, economic and cultural rights.

Lebanon ratified all the above treaties along with theTreaty on the Rights of the Child of 1989, which states inArticle 6 that “the child shall be registered immediatelyafter birth and shall have the right from birth to a nameand a nationality. Countries who signed the treaty are toensure the implementation of granting these rights inaccordance with their national law and their obligationsunder the relevant international instruments in this field,in particular where the child would otherwise be state-less.”

Women had to wait for a few decades before their fullequal rights were embodied in the jewel of the interna-tional treaties on women, namely the Convention on theElimination of all Forms of Discrimination Against Women(CEDAW, 1979). The issue of nationality right is specifiedin Article 9 (1) which declares that states parties shallgrant women equal rights with men in acquiring, chang-ing or retaining their nationalities. They are to ensure inparticular that neither marriage to an alien nor change of

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nationality by the husband during marriage shall auto-matically change the nationality of the wife, render herstateless or force upon her the nationality of her hus-band. Article 9(2) states that: “States parties shall grantwomen equal rights with men with respect to the nation-ality of their children.”

Nationality law in Lebanon

BackgroundMuch of the Lebanese discriminatory legislation againstwomen, including the nationality law (1925),1 precededthe above cited recent developments. The LebaneseConstitution (1926) stipulates equality between allLebanese citizens. However, it did not devise a body oflaws that reinforces equality between the sexes and pro-hibits discrimination against women.

Discrimination in favor of men has historically been wide-spread, sparing few systems. It reflects the 'wealth' ofinherited social and cultural biases, that have contributedto the perpetuation of discrimination against women. InLebanon, discriminatory laws against women fall mainlywithin the following main categories: (a) family laws(marriage, divorce, custody, inheritance, guardianship,trusteeship over children); (b) legal provisions of the penallaws concerning crimes of honor and adultery; (c) dis-criminatory labor laws; and (d) nationality laws, the sub-ject of this paper.

Lebanon ratified CEDAW2 with reservation to Article 9(2)concerning nationality. As a consequence, Lebanese lawdeprives Lebanese women of their basic right to passLebanese nationality to their children. This contradicts theprinciple of equality between citizens, enshrined in theLebanese Constitution and emphasized in the interna-tional treaties to which Lebanon has acceded.

By and large, all nationality laws fall into two categories:1. Jus Sanguinis (law based on blood);2. Jus Soli (law based on land).The first category, Jus Sanguinis, is favored by overpopu-lated crowded countries where population increase is notcompensated for by the growth in national income. Onthe other hand, countries that possess vast areas of landand a tiny population tend to favor the Jus Solis lawwhich gives nationality on the basis of birth and on resi-dence within the country, owing to the requirements dic-tated by the economy and by defense considerations.

Undoubtedly, Lebanon falls within the first category, notonly because it is densely populated, but more impor-tantly because it wishes to maintain its delicate confes-sional balance. Moreover, we should not underestimatethe role of the overwhelming patriarchal values that

shape a score of behavioral patterns that cast their shad-ows on nationality law.

Lebanese nationality law stipulates that nationality can bepassed to children through the father only, in his capaci-ty as head of the family. Alternately, children of Lebanesewomen and non-Lebanese fathers cannot acquireLebanese nationality, even if they are born on Lebanesesoil. There are, however, two exceptions to this law: (a) ifthe child's father is unknown or stateless; and (b) if thefather was deceased when the child was underage, inwhich case he/she may acquire Lebanese nationalitythrough his/her naturalized mother. Ironically, the right topass citizenship is denied to indigenous Lebanese widowswhile it is granted to naturalized Lebanese widows!

Lebanese nationality law also permits a Lebanese manmarried to an alien to pass his nationality to his wife oneyear after she submits an application to get Lebanese cit-izenship, granting her full citizenship rights. TheLebanese woman, however, is denied the right to passher nationality to her husband or her legitimate children,unless through a presidential decree.3

Although the laws of most modern states are such thatnationality is granted through place of birth or by virtueof descent, or through both, tribal forces, lineages andpatrilineal family-based structures have remained promi-nent, a fact which negatively affects the rights of womenas individual citizens.4 This applies to Lebanon and tomost countries of the Arab world. Thus, the laws andcodes of the state continue to work in favor of reinforc-ing gender inequality and the exclusion of some peoplefrom nationality, by maintaining the view that the family(headed by the man) and not the individual is the basicunit of society. It is within this context that the role andimpact of women as mothers and wives is relegated tothe private sphere and confined within its scope.

According to the principles of the unity of the spousesand the affiliation of the wife to the husband adopted byLebanon, a woman married to an alien acquires thenationality of her husband, and not the other way round.The rationale behind this principle of dependent nation-ality considers the family as one unit where the importantdecisions affecting the family reside with the husbandonly.

As states have the right to draw their own nationalitylaws in line with their own national interests, as stipulat-ed by international law, the argument forwarded by theLebanese government to justify its reservations withrespect to Article 9 of CEDAW is that Lebanon is protect-ing the Palestinian refugees from any form of settlementin Lebanon that would jeopardize their right to return to

Palestine. If this is the case, why does the Lebanese gov-ernment refrain from promulgating a new law that grantsLebanese women the right to pass their nationality totheir children, with the exception of those married toPalestinians? Is it fear of being accused of passing a racistlaw? If this is the case, then the racist property law of2002, which deprives the Palestinians living in Lebanon ofownership rights, has already set a precedent. Anotherpossible unvoiced rationale for this law lies in the desireto maintain the delicate demographic balance betweenthe various sects in Lebanon.

Ramifications of the Lebanese Nationality LawThe ramifications and problems of withholding nationali-ty from the husband and children of Lebanese womenare varied. Luckily, we have before us a serious recentstudy (2004) undertaken by the Gender, Citizenship andNationality Program in the Center for Research andTraining on Development (CRTD) and the United NationsDevelopment Program. The study had its limitations andchallenges, but by focusing on the collection of qualita-tive data and carrying out interviews with marriedwomen, it reflected certain general patterns:1. There is a general lack of awareness among women,cutting across class lines and educational levels, of theproblems entailed by their marriage to non-nationals. 2. The shock the women received and the intense feelingof humiliation precipitated by curtailing their rights as cit-izens was also underlined in this study.

One woman said that it had not occurred to her that herchildren's right to nationality was a questionable issueuntil she had her first child. Her first painful contact withreality occurred when she and her husband were unableto register their children in the national civil registrationrecords. Registering their children at the embassies oftheir father also entailed problems. In some cases, thiswas due to the absence of the father or to severed diplo-matic ties between the governments involved. The studyalso revealed that uneducated and lower-income womenfared the worst and those married to Europeans were thebest off.

In Lebanon, as elsewhere, the concept of nationality isviewed from within the political framework. However, inthe case of Lebanon, it has wider implications due to thequestion of the Palestinian refugees and the political con-cern to preserve the demographic imbalance. Thoughrecorded data in Lebanon between 1995-2002 indicatedthat the majority of mixed marriages in which the womenare Lebanese and the men are not, involve Arab husbands(61 per cent), marriages to Palestinian men registered thelowest rate (1.9 per cent), thus showing the weakness ofthe argument in support of the existing nationality law andof the reservations concerning Article 9(2) of CEDAW.

Citizenship and nationality rights are associated with ahost of other basic rights embodied in the UDHR. Forexample, having freedom of movement conditional onthe father's approval entails the family members' livinglike outlaws, at times, or traveling without identity cardsor passports, in cases where the father is absent,deceased, or the couple is divorced.

This problem is exacerbated by the need of families toregularly renew their residency permits or to acquirereturn visas, which entails a great deal of red tape andhumiliation. The problem is further aggravated whenthe countries involved have strained relationships.Economic, social, as well as property and inheritancerights of children and husbands are among the leadingproblems. Moreover, non-national children and hus-bands are prohibited from working in either the publicor private sectors. This is coupled with other constraints,such as prohibiting foreigners from holding jobs thatthe Lebanese are qualified to perform. Consequently,some resort to illegal jobs or to low-income jobs to copewith this situation. Owing to their status as foreigners,the children and husbands are restricted from owningproperty. Thus, they and their families have to resort toroundabout and costly measures. Over and above allthese limitations, marriages to Palestinians involve fur-ther difficulties such as restrictions on education,employment and the acquiring of property, thus makingthe lives of such families doubly arduous.

The psychological impact of such discrimination on thechildren and families victimized by it are devastating.The family is subjected to constant tension in itsattempt to make ends meet and to overcome the legalconstraints. Tension leads to discord at home and oftenthe (Lebanese) wife has to bear the brunt of it. She isoften seized by feelings of regret and, at times, fearsthat the frustrated husband may take the children awayto his country of origin.

Naturally, many families adopt a number of differentmeasures to cope with such problems, such as bypass-ing laws or using personal connections (clientalism),which are behavioral patterns that already prevail inLebanon. To obtain basic human rights for their familiessome desperate mothers are prepared to forgo theirsense of dignity by claiming that their children are ille-gitimate, in order to be able to give them Lebanesenationality.

When women were interviewed, statements emergedthat reflected their tragic situation. One said: “I am thereason why my daughters have no future.” Anothersaid: “I wish I were dead to put an end to regrettingwhat I did to my children.” Still another said: “I always

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feel that I am being punished by my country for marry-ing the man I loved and this makes me angry.”5

In conclusion, it would be useful to screen and comparethe nationality laws in the surrounding Arab countries.Recent attempts at democratization in some Arab coun-tries, coupled with active women's NGO work, haveresulted in some progress in nationality laws in thesecountries. In Algeria, the nationality law that was passedin 2005 granted women equality with men in terms ofpassing their nationality to their family. In Morocco thelaw was passed on to parliament for study, while in Egyptthe government granted this right to women under cer-tain conditions. In Tunisia, the Tunisian nationality law of1993 was modified to allow children of Tunisian mothersand non-Tunisian fathers the right to citizenship providedthat they are born on Tunisian soil and that they havetheir father's consent. The Jordanian government isstudying the nationality law seriously in the Council ofMinisters, subject to approval by the Lower House ofParliament. The UAE nationality law of 2002 grantedwomen the right to pass their nationality only to theirunderage children, provided they are widowed ordivorced.6

Sadly, Lebanon still lags behind in terms of introducingany effective changes to the nationality law. In the mean-

time Lebanese women are suffering and impatiently wait-ing for lifting the injustice inflicted upon them and theirfamilies. Will the positive force of change in the Arabworld and the dynamic work of women's NGOs impactour nationality law soon?

Endnotes

1. The Lebanese nationality law of 1926 was based on Frenchlaw which was later modified. The nationality law in Francetoday (1973) grants full equality between the sexes.2. For details on the Lebanese nationality law see: LaureMoghaizel, ed., 1985. Women in Lebanese Legislations - inview of International Treaties and compared to Arab legisla-tions (Book in Arabic)3. CRTD and UNDP POGAR, 2004, “Gender, Citizenship andNationality Program - Denial of Nationality: The Case of ArabWomen,” Beirut, CRTD, p 9. http://www.crtd.org4. Ibid. pp. 9-105. Interviews held at the Foundation for Human andHumanitarian Rights, Starco bldg, Beirut, Lebanon. March 22,2006.6. Unpublished information collected by the United NationsEconomic and Social Commission for Western Asia.

NGOs and Organizations Activein the Nationality Campaign

- CRTD, LebanonP.O.BOx 165302 1100 2030 Beirut LebanonTel/Fax: +961 616751/ 611079/ 612924/ 615904Email: [email protected]

- FWID, EgyptTel: +202 5740644Email: [email protected]

- NCW, JordanTel: +962 6 5560741Email: [email protected]

- SWL, SyriaTel: +963 93183030Email: [email protected]

- ADFM, MoroccoTel: +212 6 1472387

- BWS, BahrainTel: +973 1 7404967Email: [email protected]

- CIDDEF, AlgeriaEmail: [email protected]

The Collective for Research and Training on Development-Action CRTD-A believeswomen’s nationality rights are a prerequisite to gaining other basic universal human rights.

For this reason CRTD-A, together with its regional partners in the field of gender and devel-opment, has identified nationality as a critical issue for women in the Machreq-Maghrebregion. In response to the need and interest expressed throughout the region to advocatefor equal access to nationality and citizenship rights, on March 8, 2002, CRTD-A launcheda new initiative entitled: Women’s Right to Nationality within the scope of its regional‘Gender, Citizenship and Nationality Programme.’

In Lebanon alone, around 1375 women are married to non-nationals. Of these, 57% aremarried to Iraqi nationals, 14.3% to Egyptian nationals, 11% to Jordanian nationals, 5.1%to French nationals, 2.1% to British nationals, 2.1% to Syrian nationals, 1.8% to Iraniannationals, 1.6% to US nationals, 1.3% to Turkish nationals, 1.2% to Canadian nationals,1.2% to German nationals, and only 1.1% to Palestinians.

Research conducted with women in this situation has unveiled tremendous suffering at thelevel of access to social and economic rights and political participation, as well as mobilityand discrimination. It also indicated that women bear the brunt of the consequences atthe individual, family and social level and suffer from exclusion as well as stigmatization.

Campaign for Women’s Right to Nationality in the Machreq-Maghreb Region

For the full report, please consult the following link:htt://www.iris-lebanon.org/inner/Gender%20and%20nationality%2Oregional%2Oreport%20-%20final.Ar.pdfThis research was supported by UNDP-POGAR.

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Marie-Rose ZalzalAttorney at LawHuman Rights Activist

Mixed Marriage in the Lebanese Law

According to Lebanese law, a marriage is characterized asmixed when it is contracted between two Lebanese ofdifferent confessions or between a Lebanese and a for-eigner: The legal system regulating marriage is deter-mined by confessional affiliation for the Lebanese and bynational affiliation for the foreigners.

The marriage system in Lebanon is confessional andclosed: In the absence of a civil law for marriage eachconfession has its own laws applied by its special courtson its subjects. Since the beginning of the past century,especially with the growing phenomenon of emigration,the Lebanese opened up to each other and to the world,which multiplied the chances of meeting, loving and mar-rying individuals from other confessions and other coun-tries. The legal structure, however, could not open up atthe same pace. Confessions were adamant about estab-lishing equal legal status, where each confession insistedon having at least equal legal rights with all the otherconfessions, since all of them were considered minori-ties.1 Citizens basic rights – especially equality inside andbefore the law – did not get the same attention.

The legal autonomy enjoyed by each and every confes-sion created tension between the various confessions

as well as between the confessions and civil authoritybecause every religious or civil authority sought toexpand the scope of its competence. This tension isapparent in conflicts that arise in mixed marriages.Such conflicts require interference by the general com-mittee of the Court of Cassation (Supreme Court),competent to resolve such arising conflicts. In this con-text, matters of justice between citizens take a backseat with respect to procedural considerations andpublic space becomes narrowed, resulting in tensionbetween national and confessional affiliations. Thistension has historical roots and has been enhanced bylost opportunities to build a state that guarantees therights of its citizens.

Duality of Affiliation to State and Confession

Equality between Sects:The Ottoman Sultanate ruled Lebanon and the Arabregion for a period of 400 years during which it imple-mented Shari'a law based on the Hanafi School ofJurisprudence in handling issues of personal status.2 Indealing with non-Muslims, Islam3 distinguishes betweenthe House of War, which is the land of the enemy, and theHouse of Peace, which is the land of Islam. Non-Muslims

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welcomed in the latter must be peaceful. This welcomingwas legally recognized by the Muslim promise of protec-tion (dhimmi). This obligation of protection is an individualor group contract signed between the Islamic state andthe followers of recognized confessions, particularly vari-ous sects of the Christian and Jewish religions. This con-tract grants the sects in question protection for their lives,property and freedom in exchange for a specified tax paidto the state. The tax was the price of protection and forexemption from military service. The protection contractwas a progressive concept at the time, respecting the free-doms of belief and difference. Today, however, it evokesamong minorities the memory of humiliation and insecu-rity concerning one's destiny, because this destinydepends on the ruler and because it recalls discriminationagainst them in the periods of persecution. Relations withthe Ottoman Sultanate remained based on religion untilNovember 3, 1839, the date of issuance of the first edictstipulating 'equality between subjects of the state beforethe law. This edict was considered the introduction to cit-izenship in its modern sense, i.e. the adoption of thenational identity instead of the religious one.

This edict was later (February 18, 1856) consolidated byanother edict known as the 'Hamayouni Line,' whichdefined the nature of protection granted by the Sultanateand determined the beneficiaries of this protection.Article 1 of the edict recognized the basic rights of citi-zens, including freedom of belief. Article 2 recognizedand guaranteed the rights of non-Muslim confessions.4

This edict as well as the previous one constitute the foun-dation of the Lebanese system.

Equality between Citizens and the Rights of Groups:With the establishment of the national state in Lebanon,a system based on equality between citizens as well asbetween sects as groups was established. The purpose ofthe latter was to guarantee freedom of belief. But thegeneral climate and political balances promoted therights of the confessions at the expense of those of indi-vidual citizens and impeded the conceptual and practicalaspects of citizenship.

The principle of the equality of the sects constituted aproblem, since nation states, generally, were established,whether in the East or the West, based on the rule of indi-vidualism. According to the ideology that laid the founda-tions of modern nation states, individuals are the ownersof rights.5 The principle of equality between individual cit-izens, whose joint will is the source of sovereignty is one ofthe pillars of the democratic modern nation state.

The issue of minorities was also raised in the West butfrom a different angle that does not affect the rights ofcitizenship: A citizen can be a member of the ethnic

minority if he/she so wishes, and this is one of his/her rightsas a citizen. This is why groups try to be more appealing toindividuals where each group wants people to join it.However, in Lebanon, affiliation to a confession is a com-pulsory natural identity required for acceding to the right ofcitizenship, regardless of the citizen's will. Consequently,there is clear rivalry between confessional and national affil-iations, a competition that is generally won, especially intimes of crisis, by confessional affiliation, even in issues thatrequire that national loyalty be placed above all.

What is the destiny of the individual citizen's rights? InLebanon, balance was theoretically established betweenthe rights granted to individuals and those guaranteed toconfessions. This solution, however, was not enforced,due to the lack of the appropriate legal mechanisms. Thisfailure contributes to the strengthening of the confes-sions' powers and causes a rift between citizens andstate. The frailty of the system is particularly apparent inthe failure to issue a personal civil status law. The badmanagement of the multiplicity and diversity that charac-terize the Lebanese reality preempts interaction and ham-pers equality between citizens, a situation from whichwomen particularly suffer.

In parallel, citizens developed a series of legal tricks thatare highly efficient when carried out, in silent complicitywith officials and fellow citizens. Such tactics facilitatematters of practical life and enable them to break someof the rules of the hampering 'religious' system. As aresult of the deviation of the law from its goal and func-tion as an organizer of people's relations according to therequirements of justice, it was turned into an enemy dri-ving people away from it and encouraging them to cir-cumvent it.

The Lebanese experience is a special model, a globaliza-tion on a limited scale, where multiculturalism coexists byreason of diversity, within a structure that produces lawsthat in the name of particularity reduce interaction (mix-ing) to the minimum. This model resembles the worldtoday where the boundaries between the people wanewithin the structure of an official system seeking to pre-serve its component cultures.

I will demonstrate in this study the conflict that emergesin connection with mixed marriages and the principles oflegal solutions, in the most widespread cases, in two sec-tions: mixed marriage contracted in Lebanon and mixedmarriage contracted abroad, and the laws of competenceand solutions in case of litigation, for each of them.

First: Mixed Marriage in Lebanon1. The Confessional StructureMixed marriages in Lebanon have to be officiated by a

confessional authority.6 Any marriage contracted inLebanon before a civil authority is considered void.7

Lebanese society is constituted of various confessions:Many of these confessions are acknowledged and todaythey have reached 18, each of which has been grantedthe right to set and implement a special personal statuslaw independently of civil authority. There are unac-knowledged confessions in Lebanon too, for which theauthority promised by virtue of Decree No. 60, RegulatoryLaw, (R.L.) endorsed on March 13, 1936 to support apublic civil status law by which these confessions wouldabide and by virtue of which civil courts would beentrusted with settling litigation. This group was calledthe ‘confession’ of public right, i.e. confession No. 19.The public right confession was supposed to gather who-ever is not affiliated to an acknowledged traditional con-fession and whoever wishes that the civil authority be thesole source of legislation, whether one is a believer or anon-believer, in a way that this confession would be anentry to full citizenship. It is worth noting that a Lebaneseis compelled to be affiliated to a confession and at birthacquires the confession and nationality of his/her father.

Every traditional confession drafts its laws and imple-ments them in its own courts. The state respects the prin-ciple of neutrality regarding the various confessions anddoes not interfere with their internal affairs, neither atthe level of legislation nor at the level of confessionaljudiciary, except in cases of contradiction with the publicorder. The state, however, does not endorse any civil lawregarding the personal status of the public right confes-sion. This strands the Lebanese on their confessional isles,and leaves a category of the Lebanese, like members ofthe Baha'i confession, in a legal vacuum, i.e. without apersonal status law. It also leaves the public arena, theplace of interaction and free mixing, closed. This is amajor shortcoming of our legal system.

Furthermore, the absence of a personal status civil law cir-cumvents, in particular, the application of the general prin-ciples of handling conflicts between laws, in time and place,not only at the national level but also at the internationallevels. Thus, it limits the chances of interaction and, there-fore, of the progress of the Lebanese legal system.

The absence of a general civil personal status law leavesthe people's options in Lebanon limited to the confes-sional marriage contract. Marriage can also be consideredmixed after its contracting if one of the two spouseschanges his/her confession or acquires a new nationality.The possibility of changing the confession or nationalitygrants a limited margin of freedom to the spouses, to'place' their marriage within the legal system that suitsthem the most.

2. The Marriage LawMarriages in Lebanon are contracted before the authori-ty of the confession to which the groom is affiliated,unless the couple agree to choose the authority of theconfession to which the bride is affiliated.8 Consequently,marriage abides by the marriage law of the authoritybefore which it is contracted.

The confessions' stance on mixed marriages vary. Someof them oppose it while others set conditions for it, evenwithin confessions of the same religion. For instance: Themarriage of a Catholic man to an Orthodox woman isbarred by the law of the Catholic Church, if not autho-rized beforehand by the competent authority accordingto Articles 813 and 814 of the laws of the new orientalchurches. This legal stand is against the policy of open-ness promoted by the Christian churches within theframework of the ecumenical dialogue, in which peoplemassively participated. This prodded the Catholic andOrthodox Bishops' Council to issue a joint documentfacilitating the procedures regarding mixed marriages.9

It is worth noting that the Catholic Church is the onlyChristian church that allows its subjects to marry unbap-tized individuals after the authorization mentioned in Article804 is granted. The Antioch Orthodox Church authorizesthe marriage of two persons of different confessions with-in the same religion, but prevents marriage between twopersons of different religions.10 The Evangelical Church alsostipulates that the two marriage partners should beChristian, one of whom being Evangelical.

As to the Islamic religion, it does not set conditions for themarriage of two persons of different confessions withinthe same religion, and authorizes the marriage of a Muslimman to a woman adherent of another revealed religion,and allows her to keep her religion and exercise her reli-gious rites. However, the marriage of a non-Muslim man toa Muslim woman is considered illegitimate.

This legal environment penalizes free mixing, while socialreality, the actual interaction between the Lebanese andthe nature of human relations, encourage it.

3. Judicial CompetenceIn principle, the civil court enjoys competence to exam-ine lawsuits when the confessions of spouses are differ-ent because it represents the public courts. However,this rule has many important exceptions in the articlespertaining to marriage and its outcome, since the courtenjoying competence to settle litigation resulting frommarriage, including mixed ones, is the court of theauthority before which the marriage was contracted,according to Article 14 of a law endorsed on April 2,1951,11 despite the fact that the confessional courts are

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Volume XXIII, Nos. 111-112, Fall/Winter 2005-2006 39Volume XXIII, Nos. 111-112, Fall/Winter 2005-200638

specialized in examining the personal status cases oftheir members only.12

Civil courts exclusively have competence to settle litiga-tion resulting from a marriage contracted between twoforeigners or a foreigner and a Lebanese, provided thatthe foreigner abides by the civil law in his country DecreeNo. 109, R.L. endorsed on May 14, 1935.13 Jurisprudenceof the Court of Cassation (Supreme Court) decided along time ago to grant competence to the civil court thatapplies on the foreigner his/her national law. If aLebanese man marries a French woman abiding by thecivil law of her country, then the civil courts are compe-tent to settle litigations resulting from their marriage andto enforce the marriage law. However, there is a trend inthe courts' jurisprudence that aims at expanding thescope of competence of confessional courts.14 For exam-ple, such courts may regain competence from civil courtsupon a foreigner's acquirement of the Lebanese nation-ality at a date previous to filing the lawsuit in a bid to sub-ject him/her to the applicable confessional court.

4. The Conflict of LawsEvery confessional court seeks to expand the scope of itscompetence: In the context of mixed marriages, therearises conflict when two or more courts assume compe-tence. I will explain one of these cases which is an out-come of positive conflict between two courts, whereevery party was seeking to settle the lawsuit in the courtof the authority that serves his/her interests or rights. Thisis another example of confessional courts taking advan-tage to expand their scope of competence.

Positive Conflict:A Maronite man and an Orthodox woman married accord-ing to the law of the bride's confession. They had two chil-dren. Then discord broke out between them. The motherconsulted the Orthodox Court where the marriage wascontracted in order to request the custody of the children,15

whereas the father consulted the Maronite Court to makea similar request. Every court was considered to have theauthority to settle the litigation: The first because the mar-riage was contracted according to the law of the Orthodoxconfession and the second because it represents the con-fession of the father. The conflict was settled by the gen-eral committee of the Civil Court of Cassation (SupremeCourt). In principle, jurisprudence agrees that the courtbefore which marriage was contracted is the authority toexamine the problems resulting from this marriage, includ-ing custody. Thus, it is natural that the Orthodox Court, inthis case, be considered as having the authority to settlethe litigation. However, the court of the husband's confes-sion was considered to have the authority because bothparties had not signed a commitment in writing to abideby the laws of the Orthodox Church when they contracted

their marriage (Article 15 of a law endorsed on April 2,1951). The court refused to consider that their agreementon the marriage contract before the court of the wife'sconfession also expresses their agreement to abide by thelaws of this confession.

a. Changing Confessions and its Effect on the LegalSystem Governing MarriageArticle 916 of the Lebanese Constitution and Lebanese lawin general guarantee freedom of belief and describe it asabsolute. This guarantees freedom of belief and the free-dom to change one's belief as well. This is why a citizenhas the right to change his/her belief and, therefore,his/her confession under the protection of the law andwithout embarrassment. It is a personal matter. However,in order for that change to be valid, it should be registeredin the personal status register,17 which entails a full chang-ing of the personal legal system. An Orthodox whoembraces Islam, particularly the Sunni confession, musthave his/her personal status system changed starting fromthe date of transfer from the register of the Orthodox sys-tem to the register of the Sunni system.

However, confession is often changed outside the frame-work of the freedom of belief, to undermine the rules ofjurisdiction, or simply with the aim of changing the legalsystem by which one must abide. It can be an attempt totrick the system and elude the obligations one mustassume by choosing to be affiliated to the confessionwhose law best serves one's interests. If a confession ischanged with the agreement of all the concerned partiesin a way that preserves their rights, this change entailslegal results that undermine the rules of jurisdiction,though such rules are considered an integral part of thepublic order. But, if a confession is changed by one partyand this change affects the rights of others, the law inter-feres and insists that rulings remain in accordance withthe previously contracted marriage.

When both Spouses Change their ConfessionArticle 23 of the Decree No. 60, R.L. endorsed on March13, 1936 stipulates in its second paragraph:

If both spouses change their confession, their marriage aswell as the documents or obligations pertaining to per-sonal status become subject to the law of their new sys-tem, starting on the date their relinquishment of theirconfession is registered in the personal status registers.However, the legitimate children cannot be stripped oftheir legitimacy in this case by the simple fact that theirparents relinquished their confession.

It is known that Catholic confessions do not recognizedivorce and do not void or cancel marriages except exclu-sively in cases specified by the law. If a Maronite man, forinstance, married an Orthodox woman before the Courtof the Maronite Church, and discord broke out between

them, the Maronite Court has the authority to examinethe litigation according to its law which is very strict. Ifboth parties agree to end this marriage, they may suc-ceed if both convert to another confession, that bothdecide to embrace. They can choose to adhere to theGreek Orthodox or the Syriac Orthodox confessions, bothof which authorize divorce. The two of them can file fordivorce before the court of the new confession andobtain a divorce. Thus, they find a leeway to change therule of legal and judicial jurisdiction that applies to themsimply by amending one personal element. Their maneu-vering is protected by the rights of freedom of belief andfreedom of the will. Even if one of the two changeshis/her mind later on and confesses that their maneuverwas only meant to trick the law, the courts do not takesuch a confession into consideration.

When One of the Spouses Changes his/herConfessionIf one spouse changes his/her confession after the mar-riage, (and usually it is the husband who does so) thischange does not affect the marriage system or the rulesof jurisdiction, since the authority before which the mar-riage was contracted remains competent to deal withconflicts resulting in its course.18

If a couple belongs to a confession that does not condonedivorce, such as the Catholic sect, and the husband wantsto divorce his wife, and she does not agree to the divorce,the husband may change his religion and become aMuslim (Sunni or Shiite) and get the divorce. Thus, the hus-band becomes capable of contracting a new marriage,with the former one still standing. In this case, changingconfessions does not legally affect the system of the firstmarriage. That marriage remains subject to the marriagelaw before which it took place. Article 30 of a lawendorsed on April 2, 1951 stipulates that “if one spousechanges his/her confession, the marriage and documentspertaining to the personal status system remain subject tothe law before which the marriage was contracted and bywhich the marriage documents were drafted.”Jurisprudence is clear on this issue.19

Thus, changing confessions for the husband has its out-come in the future and the husband becomes subject tothe laws of his new confession: A husband who once wasChristian and therefore faces prison if charged withpolygamy, becomes legally capable of marrying anotherunder the cover of his new personal law. As for his firstmarriage, it remains standing since changing religions isnot a reason for divorcing or canceling the first marriage.The first wife remains 'tied' and incapable of seeking anew personal or family life. The court of the husband'snew confession becomes the authority having jurisdictionto settle litigation resulting from his new20 marriage.

This shifting by the husband from one confession toanother, however, creates legal problems for his family(ies) and a problematic issue for jurists, where the matterof inheritance is concerned. After lengthy examination, thegeneral committee of the Civil Court of Cassation(Supreme Court) finally settled for considering that a sec-ond marriage does not grant the second wife and her chil-dren any right to inheritance, and the first family remainsthe sole rightful heir.21 The court of the authority beforewhich the first marriage was contracted remains the oneauthorized to examine the matter of inheritance. The courtjustifies its stance by virtue of Article 23 of the Decree No.60, R.L.; also by the recognition that the first marriage wasbased on mutual consent of the two parties to abide by thelaws under which the marriage was contracted.

b. When a Foreigner Residing in Lebanon ChangesReligionsForeigners residing in Lebanon abide by Article 9 of theDecree No. 8837 endorsed on January 15, 1932, stipu-lating that the department for the personal status of for-eigners must set up a special register for them in which itshould register all facts unforeseen and pertaining to per-sonal status, including the changing of confession, byvirtue of Article 41 of the law endorsed on December 7,1951. In a decision taken by the second Civil Court ofCassation (Supreme Court) No. 4 dated March 9, 1981,Article 41 includes compulsory substantial rules that mustbe respected for legal effects to be applicable.22

c. The Effect of the Acquisition of a New Nationalityon the Marriage SystemArticle 19 of a law endorsed on April 2, 1951 stipulatesthat “changing nationality on a date subsequent to thedate of marriage does not introduce any amendment tothe rules of the law according to which the marriage wascontracted.”

The rule set by this article, originally mentioned in a lawapplied to Christians, constitutes a general rule to berespected with regard to the Islamic religious courts toobecause there are no contradicting texts regulating thislegal principle in Islamic law.23

It is worth noting that this rule has not been applied toforeign women who acquire the Lebanese nationality ona date subsequent to the date of their religious marriage,as mentioned before. However, it has been applied toLebanese couples who marry in Lebanon before confes-sional or religious authorities, register their marriage inthe department for the personal status of foreigners andtravel, for instance, to Canada where they live, getdivorced before the Canadian civil authority and then oneor both partners of the marriage return to legalize thedivorce. Such a divorce is considered worthless by the

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Lebanese courts. A couple is legally required to get itsdivorce from the authority before which the marriagewas contracted. Otherwise, if one of them remarries,he/she is liable to prosecution on charge of polygamyunless the one remarrying is a Muslim man.

5. Issues of InheritanceAccording to religious rule and civil law, Muslims andChristians cannot inherit from each other.24 This rule caus-es great concern and instability in the case of mixed mar-riages: In case the Muslim husband dies, his Christianwife does not inherit him, and if the Christian wife dies,neither the husband nor the children inherit her, at leastnot the minors because they follow the confession oftheir father.

This is why couples of mixed marriages try to go aroundthe restrictions of religion by resorting to alternative legalmethods: They sign contracts of sale or contracts of giftto each other or to their children.25 Sometimes for thesame end, the owner of an asset gives power of attorney,valid for postmortem implementation, to the pertinentmember of his/her family. As to the inheritance of mov-able property, couples tend to solve it through joint bankaccounts. This last procedure, in addition to allowing theinheritance of money deposited, contrary to the rules ofinheritance law and the restraints of religion it furtherexempts the 'heirs' from paying inheritance tax.

It goes without saying that these methods adopted toevade the unfair inheritance law are nevertheless danger-ous in case one of the beneficiaries is not trustworthy. Itis worth noting in this context that the legal systems ofall confessions is based on the separation of assets (of thespouses).

Second: Marriage Contracted AbroadMarriage contracted abroad is effective in Lebanon if it isvalid according to the country where it was contracted.This rule is effective even if the marriage is civil, since arti-cle 25 of the Decree No. 146, R.L., endorsed on November18, 1938 allows the Lebanese to contract civil marriageoutside Lebanon. In case of litigation about the marriageand its outcome, the civil court is the authority that settlesthis litigation according to the foreign civil law.26

Article 79 of the Lebanese law sets as conditions forfalling under the jurisdiction of the Lebanese civil courtsthat the marriage should be contracted by civil courtsabroad, between two Lebanese or one Lebanese and oneforeigner.27

According to Article 18 of the Procedures RegulatingMuslim Courts, such courts are competent only when thetwo partners in the marriage are affiliated to the confes-

sion the court rules, and at least one of them is Lebanese.So, if two Sunni Muslims married before a civil courtabroad and one of the two is Lebanese, the religious courtannounces its competence to settle litigation. Article 18 isnot applied if the two Muslims were of a different confes-sion or if one was Muslim and the other non-Muslim.

Marriage Contracted Abroad Causes Several Conflicts:1. Multiple Marriage Contracts: Let us examine a marriage that was contracted betweentwo Lebanese in France, registered in the personal statusregisters and was then followed by a religious marriageto please the family and friends. When the wife filed alawsuit against her husband before the civil court, theCourt of Cassation (Supreme Court) decided accordingto Decision No. 13/1991 dated March 14, 1991 that civiljudiciary was incompetent to examine the litigation andthat the priority remains to the religious marriage. Thecourts considered that the family public order inLebanon is based on the religious marriage, whereas civilmarriage is an exception to the rule. The aim of suchexception is to safeguard the freedom of belief of thosewho do not believe in any religion recognized inLebanon. By choosing later to have a religious marriage,the couple indicated that they accept the religious rul-ings.

In principle, if the civil marriage is registered in the per-sonal status registers, it is supposed that both partieswish their marriage to abide by the civil law. However, thejurisprudence of the courts is not unified about this issueand the trend currently is to authorize confessional courtsto settle litigations.

Thus, this unexpected verdict is in line with the new trendthat promotes the competence of the religious authori-ties. The paradox in this ruling is that it reverses roles, sothat the confessional law appears to promote freedom ofbelief and civil law becomes a particularity closed onitself. Indeed, it is known that the majority of those whocontract a civil marriage in Lebanon do it out of convic-tion and not out of objection to religious belief. Also,many of those who contract a marriage in church are notconcerned about the sacrament of marriage as a religiousbelief. They choose it because it is the only form of mar-riage allowed in Lebanon.

2. The Custody of Children:The Lebanese law stipulates that the authority beforewhich a marriage was contracted is the proper one to set-tle litigation resulting from this marriage, including thecustody of the children.28 However, this rule does not pre-vail over the rules of international jurisdiction,29 sincecompetence is disputed between the civil and the con-fessional authorities as previously mentioned.

By virtue of the Decree No. 109, R.L., the confessionalcourts are authorized to settle litigation when the nation-al law of the couple is the confessional law.Consequently, the rules of this competence and the rulesapplied in the litigation become coherent between theLebanese and the foreign authorities. The civil courts areauthorized to settle litigation when one of the two par-ties is a foreigner. Therefore, the civil court decides toapply either the foreign civil law or the confessional law,according to the case under investigation, on all the out-comes of the marriage, including custody.

As to giving foreign verdicts issued in matters of custodythe power of implementation on Lebanese soil, these ver-dicts also abide by the same rules that are applied to allverdicts related to personal status as we will demonstrate.

Child Kidnapping:30

The issue of custody of children born outside Lebanonwhether their parents have a civil marriage or were notlegally married constitutes a vital as well as a legal prob-lem. Bringing such problems before the courts is becom-ing a more and more frequent occurrence. Often, theparent with a Lebanese nationality returns to Lebanonwith the minor children and is granted custody by theconfessional court. This prohibits the foreign parent fromexercising his/her right granted by the conjugal law or bythe foreign habitation law. This is further against thewellbeing of the child failing to grant him/her the priori-ty that he/she deserves. This is a real problem that isbeing discussed in all countries. It is especially problemat-ic for countries not parties to regional or internationalagreements, particularly to the 1980 treaty on children'srights at The Hague.

Some unofficial international mechanisms have beenestablished to observe the rights of children and safe-guard their wellbeing. But in the absence of a legal back-drop their effectiveness is questionable. In Lebanon, offi-cial efforts are underway to encourage negotiationsabout this issue, especially through the InternationalBureau for Social Care, but their effectiveness is limitedwhere legal disputes are concerned.

In 2004, the Malta Judicial Conference was held to findremedies for familial across-border conflicts, andLebanon was a participant in this conference. It is expect-ed that the decisions that transpired from this conferencewill lead to the signing of binary treaties between coun-tries. Such treaties have proven to be the most successfulwhen dealing with such conflicts.

3. Acquiring Nationality:A foreign woman married to a Lebanese man has theright to acquire the Lebanese nationality upon her

request one year after the date of registration of the mar-riage in the census office. However, a Lebanese womanmarried to a foreigner cannot pass her nationality to herhusband or children, even if they permanently reside inLebanon.

4. Implementing Foreign Verdicts:Article 1009 of Civil Procedure Code defines the foreignverdicts as follows: “Verdicts are considered foreign, inthe proper sense, when issued in the name of a sover-eign authority that is not the Lebanese sovereignauthority.” In case foreign verdicts require implementa-tion in Lebanon, they need to be given the power ofimplementation on Lebanese soil, according to Article1010 of Civil Procedure Code.31

Jurisprudence agreed to refuse to give the power ofimplementation on Lebanese soil to foreign verdictsissued in personal status matters when they are contra-dictory to the exclusive jurisdiction of confessionalcourts.32

The Lebanese court, in the course of verifying that theconditions required to grant the request for implementa-tion of the verdict are met, does not consider whetherthe basis of the foreign verdict is sound except in exclu-sive cases listed by Article 1015 (Civil Procedure Code).However, the court makes sure that some conditions aremet according to Article 1014 (Civil Procedure Code), themost important of which is “that the foreign verdict doesnot contradict the Lebanese public order.”

Such foreign verdicts seeking implementation arenumerous. It is known that war in Lebanon caused theemigration of many Lebanese – estimated according tosome statistics at over one million, i.e. not less than 20per cent of the Lebanese population – who scatteredacross the earth. The majority of the people settled intheir countries of emigration and married according tothe laws of those countries and started families. Someof them returned to Lebanon and brought with themverdicts to be implemented. This is why the issue of for-eign verdicts breaching the Lebanese public order wasraised in many cases.

The concept 'public order' is evoked to dismiss a legit-imate foreign rule that is not consistent with thenational law or contradicts it. However, due to theabsence of a unified system for personal status and tothe multiplicity of the confessional laws, the concept of‘public order’ is fluid and vague.33 Thus, in application,the only conditions that are examined to decidewhether a verdict meets the requirements of the ‘pub-lic order’ or not are the conditions of ‘competence’ and‘the right of defense.’ These two conditions are speci-

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fied in the civil laws, especially in the civil procedurelaw.

The legal marriage system, in Lebanon, is closed and notprepared to accept mixing. This is why its continuation isat the expense of people's basic rights which are unalien-able and universal: The rights to freedom, to justice andto equality are the core of human dignity, and any viola-tion of such rights constitutes detracting of this dignityregardless of the motives. The existing Lebanese marriagesystem, in addition to being incapable of guaranteeingthe freedom of belief, leads to discrimination betweencitizens and to discrimination against women.

Confessional laws, whether Islamic or Christian, preservethe domineering structure of the family, where women arenot treated on an equal footing with men. This limitswomen's participation in making major family decisions.Confessional laws with special authority are not interactivewith the public legal system, open to human rights, asmentioned in the text of the Lebanese Constitution. Theintegration and consistency of Lebanese law with the inter-national legal system depends on the openness ofLebanese law as privacy is no longer a sufficient justifica-tion for isolation, especially when this privacy is promotedat the expense of human dignity, which all religions concurin upholding.

Translated by Nadine El-Khoury

1. The definition provided by the United Nations Declaration onthe Rights of Persons Belonging to National or Ethical, Religiousand Linguistic Minorities is the following: “A non-dominantgroup of individuals who share certain national, ethnic, religiousor linguistic characteristics which are different from those of themajority population.”2. Issues pertaining to personal status are varied and target thenationality, census, inheritance, and family rights, but what wemean in this study by personal status is exclusively the issues thatare examined by confessional courts and that abide by the lawsapplied on the members of the confession only. As to recogniz-ing the ‘Lebanese confessions,’ it was made by virtue of Article2 of Decree No. 60, R.L. endorsed on March 3, 1936 which stip-ulates: “Recognizing a specific confession has the effect of giv-ing the text defining its system the power of law and puttingthis system and its implementation under the protection of thelaw and the supervision of the public authorities.”3. The Legislative Situation in Arab Countries, Their Past andPresent, attorney-at-law Sobhi Al-Mahmasani, Beirut: Dar al-ElmLel-Malayin, 1965, p.174. 4. Antoine Kheir ‘Les Communautes religieuses au Liban per-sonnes morales de droit public.’ Droit et Religion. Bruxelles :2003, Brurflant (œuvres du colloque organise par CEDROMA,Universite Saint Joseph, Beyrouth, 2000) p. 457.5. See ‘Minorités et organisation de l'état,’ textes présentés au4e colloque international (CICLEF), Bruylant, 1998 UniversiteLibre de Bruxelles. 6. As an expression of their refusal of the system of closedboundaries for each religious sect, some Lebanese individuals, ofdifferent religious sects, attempted to enter into civil marriagecontracts, in Lebanon, before a public notary. Their attemptswere thwarted because of the ruling of article 16 of the lawendorsed on April 2, 1951. 7. Article 16 of the law endorsed on April 2, 1951, stipulates:“Every marriage contracted in Lebanon by a Lebanese affiliatedto a Christian or an Israeli confession before a civil authority isconsidered void.”8. Article 15: In mixed marriages, in principle, the contract mustbe signed before the religious authority to which the groom isaffiliated unless both parties agree to marry before the authori-ty to which the bride is affiliated by virtue of an agreement inwriting signed by both parties and in which they pledge to abideby the laws of the mentioned confession. To the same effect, we

have Articles 61 and 62 of a law that was endorsed on July 16,1962 regarding Muslim confessions.9. Attorney-at-law Ibrahim Traboulsi, Marriage and its EffectsAccording to the Confessions Included in the Law endorsed onApril 2, 1951, 2nd edition 2000, pp. 249-250.“Catholic and Orthodox patriarchs held a meeting at the SyriacCatholic Patriarchate's headquarters at Saydet al-Najat-AshurfaConvent, on Monday, October 14, 1996. Discussions focused onmixed marriages… they stressed the importance of a law regu-lating this new reality and highlighting the ecumenical under-standing in all our churches. Catholic and Orthodox patriarchs promised to circulate the fol-lowing: 1. The bride has the freedom to remain affiliated to herchurch, 2. The marriage ceremony is to be held at the church ofthe husband, and the priest presiding over the ceremony invitesthe priest of the bride's confession, if present, to hold prayerstogether, 3. The children are to be baptized in the church towhich their father is affiliated, 4. The decisions regarding thisstand are to be taken into consideration in the various holycouncils.”10. Article 17, paragraph K of the new law of the OrthodoxChurch.11. Article 14 defining the competence of the Christian andIsraeli authorities: “The confessional authority that has the juris-diction to examine a contract of marriage and its outcome is theauthority before which marriage was contracted according tothe rules and by virtue of the jurisdiction rules specified in Article15 on mixed marriages. In case there are two or more valid con-tracts, the concerned authority is the one before which marriagewas contracted first. In case there are two or more contracts,one of which fulfills the mentioned rules, then the concernedauthority is the one before which the correct contract wassigned.”12. Article 6 of a law endorsed July 16, 1962 regarding religiouscourts and Article 31 of a law endorsed on April 2, 1951 regard-ing the non-Muslim courts.Article 31 of a law endorsed on April 2, 1951 stipulates: “Theconfessional authorities, according to their competence recog-nized by this law, implement their confessional laws on theirmembers only, taking into consideration the special cases men-tioned in this law.”13. Article 1 of Decree No. 109, R.L. stipulates the following:“Civil courts only have the competence necessary to examine

personal status issues concerning one or several foreigners ifone of them at least is a citizen of a country where civil right pre-vails according to their laws in effect.” 14. The Court of Cassation (Supreme Court) Decision No. 19/74which considered that the acquisition of Lebanese nationality bya foreign woman married to a Lebanese religiously, before thelawsuit was filed, is enough to grant authority to the confes-sional court.15. Article 4 of a law endorsed on April 2, 1951: Confessionalauthorities have jurisdiction over: first, filiation and the legitima-cy of children and its effects; second, adoption; third, parentalauthority over the children; fourth: custody of the children andtheir upbringing until the age of maturity, i.e. 18 years, inclusive.16. Article 9 of the Lebanese Constitution stipulates: “Freedomof belief is absolute and the state, by assuming its obligations toGod, respects all religions and confessions, guarantees the free-dom of celebrating rituals under its protection provided they donot breach public order. The state guarantees to its citizens,regardless of their confessions the respect of the system of per-sonal status and religious interests to which they happen tochoose to belong.” 17. Article 41 of a law endorsed on December 7, 1951 stipu-lates: ”He who changes religion or confession must file arequest for the purpose to the personal status office enclosedwith a certificate by the leader of the religion or the confessionwhich he wants to embrace.”18. See the general committee of the Court of Cassation(Supreme Court) Decision No. 47 dated May 26, 1961. Also theJustice Minister's circular No. 11 endorsed on February 24,1953, and the Justice Minister's report No. 222 dated February15, 1954.Abdo Younes, Personal Status in Legislation andImplementation, Beirut 1996, p.74.19. The general committee of the Court of Civil Cassation(Supreme Court) Decision No. 24/96 dated October 17, 1996Judicial Review, Issue 11, No. 22/96 dated October 3, 1996,p.1146; and Justice, issue 1, 1997, p.9; and others.20. Dr. Afif Shamseddine, Jurisprudences of the CassationCourt's General Committee from 1961-1999, p.300 onwards.Decision endorsed by the general committee of the Court ofCassation (Supreme Court) on August 3, 1995; 21. Judge Sami Mansour, The Protective Role of the CivilJudiciary in Personal Status Issues, the Lebanese judiciary build-ing the authority and developing institutions, Center forLebanese Studies 1999, pp. 309-10.“Only two decisions made an exception to this rule: the firstissued by the Beirut Appellate Court, chamber six, No. 104,dated June 10, 1974, to deprive the first family. The secondissued by the second civil chamber at the Court of Cassation(Supreme Court) Decision No. 30 dated November 8, 1989 andauthorized the inheritance of both families. The first decisionwas challenged by the Cassation Court, the second decisionremained intact.”22. Abdo Younes, Personal Status in Legislation andImplementation, Beirut 1996.23. A decision by the general committee of the Court ofCassation (Supreme Court) Decision No. 13 dated May 9, 1996from a study by Dr. Sami Mansour about religion and the con-flict of laws in the personal status course, Droit et Religion, oeu-vres du colloque CEDROMA Mai 2000 Bruylant, 2003.24. Muslims in Lebanon abide by the religious inheritance law ofevery confession, whereas the Christians abide by the inheri-

tance law of non-Muslims which is a civil law endorsed in 1959.This law was expected to become a public civil law applicable toall Lebanese, but its implementation created a problem to theMuslims, which killed the attempt. According to religion, aMuslim does not inherit a non-Muslim. The rule of treating theother equally was adopted in the inheritance law for non-Muslims, which meant there is no inheritance in the case of amixed marriage. 25. Ibrahim Najjar, Droit patrimonial de la famille Droit matri-monial-successions, 2e édition 1997, p. 3526. Jurisprudence is unified about giving authority to the civilcourts that implement the foreign civil law according to whichmarriage was contracted. 27. Article 79 of the law of civil procedure stipulates: “CivilLebanese courts have the jurisdiction to examine litigationresulting from the contract of the marriage that took place in aforeign country between two Lebanese or between a Lebaneseand a foreigner civilly according to the law of that country.”28. The issue of custody in the internal law still raises more thanone problem, especially regarding women's right for the custodyand guardianship of their children, and at the level of the imple-mentation of verdicts granting custody to women. It is worthnoting that confessional laws are unjust to women and theirchildren and do not take into consideration the children's inter-est when deciding who should be granted custody, contrary towhat was mentioned in the Declaration of Children's Rightswhich Lebanon signed.29. Pierre Gannage, Problemes soulevés au Liban par la gardedes enfants nés d'époux de communautés ou de nationalitésdifférentes. Le pluralisme des Status personnels dans les étatsmulticommunautaires, Bruylant 2001, p. 131 onwards. The issue of the children's custody created a dilemma at theinternational level, which resulted in the signature of a numberof documents aiming at protecting the children's stability andthe rights of their mothers in particular, since courts in everycountry usually tend to grant the children's custody to their cit-izens. Among the treaties that came as a solution to the exacer-bating problem was the one related to the civil aspects of kid-napping on the international level, The Hague, 1980.30. The use of the expression child kidnapping has created prob-lems in international conventions since some countries considerit an infringement on the rights of parents to exercise their legalrights. 31. According to Article 1010 of the Civil Procedure Code'Foreign verdicts that affect assets or intimidation of the personsinvolved cannot be implemented except after being granted thepower of implementation on Lebanese soil according to theterms of this law.32. The Lebanese courts refuse to allow implementation, onLebanese soil, of any foreign civil verdict that rules to divorcetwo Lebanese who have been married in Lebanon before a reli-gious authority. They consider that the jurisdiction of settlingsuch litigation belongs exclusively to the authority before whichmarriage was contracted.33. In a decision issued by the Civil Court of Cassation Chamber1 No. 39/99 dated March 16, 1999, the Cassation Court saidthat the decision, which grants the power of implementation onLebanese soil to a French verdict authorizing divorce between aLebanese man and French woman who married in Kuwaitbefore the Greek Catholic religious authority, is legal and con-stitutes no breach to the Lebanese public order. Al-Adl, BarAssociation Review, 1999, issue 2, p.178.

Endnotes

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While Article 549 of the Lebanese penal code establishesthe death penalty as the punishment for intentionalhomicide against the ascendants and descendants of theoffender, the same law recognizes mitigating circum-stances for a male member of a family 'who catches hiswife or one of his [female] ascendants or descendants orsister with another in an unlawful bed and he who kills orwounds one or both of them.' (Article 562)

Rape and the Discriminatory LegislationRapists are not liable for their act if they are already mar-ried to the victim or if they get married to her after therape takes place. Thus, the legislation which aims to pro-tect family values actually defends sexual violence andlegitimizes it.

Article 522 of the Lebanese Penal Code gives the rapistimpunity if a legal marriage takes place after the crime iscommitted. If divorce occurs within three to five years(depending on the act committed against the victim), theprosecution will be resumed against the offender.

A very tragic story happened in Tripoli, Lebanon, a fewyears ago, when a girl was kidnapped and raped. Theprosecutor refused to order the arrest of the criminalbecause he heard that the rapist got married to the girl.

Some people from the region believed that if the girl didnot marry her rapist she should not go back homebecause having lost her virginity and staying a singlewoman in her city would put her in great danger of beingkilled for dishonoring the community.2

In fact, the girl remained unmarried and was being heldhostage. Her mother, a very courageous lady, asked forhelp from women lawyers and a women's rights NGO.The lawyers and the mother used to gather at the doorof the prosecutor and stay all day trying to convince himto act in order to bring the kidnapped girl back home andto bring the rapist to justice. The mother stood up for herrights despite the pressure of a prominent MP who wasdefending the rapist.

All those demonstrations attracted the media who cameto cover not only the kidnapping but this new phenome-non in the most conservative region of Lebanon, ofwomen asking for their rights with a spectacular move-ment of solidarity.3

The outcome of this case was the arrest of the rapist oncharges of kidnap, rape, and forced marriage.

Lebanon has many discriminatory laws that should beaddressed, not to mention the absence of many otherimportant laws that should be established to ensure bet-

ter protection for women at home and in the work place.During my work as a lawyer I was asked to handle manycases of sexual harassment, but I could not file a com-plaint under criminal law. The cases were qualified assubject to labor law, and the victim was to seek compen-sation for being dismissed from her job because sheresisted sexual advances, but the offender was neverpunished for his criminal act.

The Situation of Foreign Domestic WorkersIn this context, it is very relevant to mention the abuse offoreign domestic workers in Lebanese society.

A housemaid is expected to work more than 12 hours aday. She should start working when the first member ofthe family wakes up and she should be the last one to goto bed. Many maids start their day at 6 a.m. to prepare thechildren for and take them to school, spend the day cook-ing and cleaning, and then stay up late to serve the hus-band when he comes back from work. She has no days off,and she cannot leave the house unless accompanied by amember of the family. According to societal standards, thiswould be an 'acceptable' situation for a housemaid if shewere not subject to physical forms of abuse.

Many forms of physical abuse against housemaids havebeen reported to activists and human rights NGOs. Alsomany mysterious deaths of domestic migrant workershave occurred, and the Lebanese judiciary police con-ducted no serious investigations.

According to statistics provided by Katunayake International Airport, Sri Lanka's main international airport and theForeign Employment Bureau in Sri Lanka, 215 migrantworkers' dead bodies, among them 107 women, werereturned in 2002 from different Middle Eastern countriesincluding Lebanon. From January to mid-October 2003,203 bodies arrived, 131 of them female. Most of the caseswere reported by the authorities of these Middle Easterncountries as death by natural causes.

Kandiah Nandanee, 24, from Wattala, who worked inLebanon for ten months in 2002 as a housemaid, died inunknown circumstances. When her body was returned toSri Lanka, her family was told she had committed suicideby jumping from the fifth floor of an apartment block.4

The report of the Committee on the Elimination of RacialDiscrimination 2004 5 expressed concern regarding thesituation of migrant workers. The recommendationsissued were as follows:

83. While welcoming the measures taken to improve theprotection of migrant workers, the Committee remainsconcerned at the situation of migrant workers in practice,

Mirella Abdel Sater McCrackenHuman Rights Lawyer

Seeking Justice for Physical and SexualViolence against Women inLebanese Society

Violence against women has no definition in Lebanese law.Domestic violence, defined as violence happening within ahousehold and between members of a family, is ruled bythe general articles of the Lebanese Penal Code. TheLebanese Penal Code has only a very few articles punishingacts of violence that cause bodily harm or injury (Articles554-559 - Legislative Decree 340/NI dated March 1, 1943).These articles address physical violence that can occurbetween any individuals, strangers or relatives, at anyplace, whether in the street, in a bar or anywhere else.Penalty categories for injuries range from six months to tenyears in jail if the injury leads to disfigurement or mutila-tion. In the first category, the penalties are not applicable ifthe charges are dropped by the victim. Indeed, the absenceof a special law prohibiting domestic violence in Lebanonmakes this crime almost beyond punishment.

Domestic violence is a crime with its own specific charac-teristics. This crime happens in special situations thatmake seeking justice very difficult for the female victim.

Some lawyers consider that the articles present in thePenal Code (Articles 554-559) are sufficient to punishdomestic violence. In fact, not only are the articles notenough, but the entire Lebanese judicial system is not

prepared – and is even hostile at times – to deliver sen-tences in cases of domestic abuse.

While causing injury or physical abuse against strangersor non-members of the family can be easily proven, espe-cially if it happens in public, crimes perpetuated at homeare more difficult to deal with. They require special inves-tigations to be conducted by very well trained police offi-cers with the help of specialists (social workers) who willtake the necessary steps to protect the victim and herchildren from further abuse, including the provision oftemporary shelter when needed. Also, the presence ofmedical personnel and psychologists is essential for thesupport and the evaluation of the impact of moral abuse.Unfortunately, none of this exists in Lebanese societywhen dealing with domestic violence.

Lebanese society is a very conservative society that still con-dones honor crimes and shows a very tolerant attitudetowards the killing of female relatives. Thirty-six honorcrimes were reported in Lebanon between 1995 and 1998.1

As this number includes only crimes reported to the police,researchers believe that the actual number of incidents ismuch higher. This kind of crime is not usually reported, or isoften documented as accidental death or suicide.

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in particular domestic workers, who do not benefit fullyfrom the protection of the labor code. Furthermore, theCommittee regrets that insufficient information was pro-vided as to how the bill for the establishment of a newlabor code would affect migrant workers and whether itwould provide any specific protection against discrimina-tion on the grounds specified in the Convention. TheCommittee urges the State party to take all necessary mea-sures to extend full protection to all migrant workers, inparticular domestic workers. In addition, the State partyshould provide information in its next periodic report onany bilateral agreements with the countries of origin of alarge number of migrant workers. In addition, theCommittee recommends that the State party ratify theInternational Convention on the Protection of the Rights ofall Migrant Workers and Members of their Families of 1990.

The second most serious practice against a domesticworker's rights is depriving her of her passport. The pass-port should only be held by its owner. A passport is alsoconsidered the property of the government that issued it.So in the Sri Lankan case it is the property of the SriLankan government and no one else except the SriLankan worker is allowed to keep it. Upon her arrival atthe airport, the migrant domestic worker is forced tohand over her passport to the authorities; the GeneralSecurity takes the passport and gives it either to theemployer or to the recruiting agency who should be pre-sent at the airport to pick up the worker. The employerwill keep the passport with him/her until the end of thecontract or until the domestic migrant worker needs totravel back to her country. Of course, the consent of theemployer is necessary for such travel. Holding the pass-port is a very common practice and the public is unawareof the ramifications of this action for the migrant worker.

In the concluding observation of the Human RightsCommittee of the International Covenant on Civil andPolitical Rights in 19976 about Lebanon, the UnitedNations condemned this practice:

22. The Committee has noted with concern the difficultiesfaced by many foreign workers in Lebanon whose pass-ports were confiscated by their employers. This practice,which the Government has conceded must be addressedmore satisfactorily, is not compatible with Article 12 (free-dom of movement) of the Covenant. The Committee rec-ommends that the State party take effective measures toprotect the rights of these foreign workers by preventingsuch confiscation and by providing accessible and effec-tive means for the recovery of passports. 7

Two Malgashi workers decided to sue their employer forholding their passports. The confiscation of their passportsmade them unable to leave the country without being

caught and held in prison. Unfortunately they lost the case.The investigating judge in Lebanon said in her judgment:“It is natural that the employer confiscates the maid'spassport and keeps it with him in the event that she runsaway to work in another place without compensatinghim.”8

The confiscation of a passport results in the domesticworker who no longer works for her sponsor, beingtrapped in Lebanon for an indefinite period with an ille-gal status. Recently Lebanese civil courts began issuingjudgments declaring the confiscation of passports byemployers illegal, but there is no law yet that forbids thispractice and the confiscation of the worker's passport isstill practiced very widely.

ConclusionEven though Lebanon has ratified the Convention on theElimination of all Forms of Discrimination Against Women(known as CEDAW), it still has more than 30 provisions inits legislation that are discriminatory against women.9

CEDAW's texts are explicit: They ask the States parties tocondemn discrimination against women in all its forms andto adopt a policy to eliminate discrimination against womenthrough appropriate legislation and sanctions that prohibitall discrimination against women (Article 2, CEDAW).

By not explicitly prohibiting violence against women,Lebanese legislation is facilitating the perpetuation ofcrimes against women. By keeping laws such as thosedealing with 'honor crimes,' the state and the judicial sys-tem become accomplices in the murder of women.

Endnotes

1. Moghaizel, Fady and Abdel Sater, Mirella 'Honor crimes,jurisprudential study' Moghaizel Foundation, Beirut, 1999.2. Suline is a Lebanese University medical student who wasabducted on 9 May 1998 on her way to class at the IslamicHospital in Tripoli, in northern Lebanon.3. Suline was forced to accept marriage. Ziad Zuhurman, therapist, asked the local MP of northern Lebanon to oversee themarriage. However, Suline's mother reported her daughter'sabduction and rape to the Lebanese Council to Resist ViolenceAgainst Women. The actions of the Council reverted Suline'ssituation to her favor. Besides providing her with free legalrepresentation, the Council acted in the following ways tosecure the result achieved: - It widely publicized the issue.- It appealed to the President of Lebanon, the House Speaker,the Prime Minister and also the Justice Minister for urgentaction to be taken.- It appealed to human rights associations and held meetingson the issue.- It held a public debate at the Lebanese Law faculty in Beirut,

calling for a cancellation of Article 522 of the penal code thatlegalizes a marriage between a victim and a man who has com-mitted crimes of seduction, rape, forced prostitution and/or kid-napping if both parties consent to the marriage. By marrying avictim, a perpetrator is not punishable for his acts. - It publicly protested against, and condemned, the involvementand support given by Akkar MP Wajih Baarini and his brother.- It publicly demonstrated, outside the Tripoli Serail, where ZiadZuhurman was being questioned and temporarily detained.4. WorldSocialistWebsite http://www.wsws.org/articles/ 2004/jan 2004/srme-j13.shtml5. Sixty-fourth session, 23 February-12 March 2004,CERD/C/64/CO/3.6. CCPR/C/79/Add.78. Concluding Observations/Comments.7. Article 12 of the International Covenant on Civil and PoliticalRights:

This section will rely primarily on the studyby Michael Young published by theLebanese NGO Forum entitled “MigrantWorkers in Lebanon.”

I. BackgroundThe arrival of migrant laborers in Lebanonreflects not only domestic needs in thecountries of origin but also regional labormobility. Specific regional events – thedrop of oil prices, the Gulf war and the col-lapse of the Soviet Union – have led tochanges in migration trends and resultedin the ‘expansion of replacement migra-tion’ and the ‘feminization’ of migration.

Both trends have been evident in Lebanon.For several years women from EasternEurope and the former Soviet Union havebeen working in bars, as dancers, wait-resses, and prostitutes. However, it is thepresence of a growing number of Asianwomen, mostly from non-Arab Asiancountries, that has been particularly evi-dent. A majority of non-Arab migrantlaborers are women, a trend that is boundto increase as the Lebanese authorityimposes further restrictions on the arrivalof non-Arab Afro-Asian males.‘Replacement migration’ is a relativelyrecent phenomenon but it has reachedlarge proportions, given — in the case ofwomen migrants — the increasing hiringof Afro-Asian women workers as low-priced domestics, roles previously playedby Syrian and Egyptian women.

Who are they?Prior to 1973, most female workers were

Egyptians and Syrians, and worked inhouseholds. As of 1973, Filipinos startedto arrive to Lebanon, followed by SriLankans in 1975. In 1990 women fromAfrican countries, mainly Ethiopia andMadagascar, arrived. Today, the largestcontingents of non-Arab Afro-Asianwomen migrants in Lebanon are mainlyfrom Sri Lanka, the Philippines, India,Madagascar, Ethiopia and west Africancountries. They provide domestic services,usually in households, but also in restau-rants and other businesses. Ther majorityof domestic workers are women.

How many are they?The actual number of women migrants isdifficult to determine for several reasons,ranging from a lack of reliable figures, tothe contradiction in numbers that differfrom one source to another, to the illegalpresence of foreign female workers. It isroughly estimated that 85 percent of thetotal number of non-Arab African Asianmigrant workers in Lebanon – out of anestimated 200,000-230,000 workers –are female.

II. Working ConditionsConditions of workers vary depending oncategory of employment. Migrant workersare not governed by Lebanese labor law.Their status is governed by a contractbetween the worker and the employer.The fact that migrant workers are not gov-erned by labor law means that they aredenied a right to earn Lebanon's minimalsalary, they do not have a maximal numberof working hours, they have no guaran-

teed time off or vacation, they are deniedaccident and end-of-work compensation,and they are barred from joining laborunions.

Women migrants often face difficult con-ditions, including:* Long hours, for low salaries, in inferiorconditions to most Lebanese* No social coverage, though some mea-sures have been taken to provide insur-ance to some categories of migrants* Being locked indoors by their employers;* Difficulty in complaining to Lebaneseauthorities* Illicit measures affecting salaries such asnon-payment* Confiscation of passports or other iden-tity documents (prohibited by Lebaneselaw and by the International Conventionof the Protection of the Rights of AllMigrant Workers and their Families) thatleads to limitations on their freedom ofmovement* Physical and sexual abuse, which maylead to suicide. Rape is frequent in house-holds. Some lawyers have attempted totake those responsible to court. Whilethere have been rare successes, most ofthe time the guilty go unpunished.Abused women migrants are too oftenreluctant to testify against their tormen-tors. Their primary motivation appears tobe fear, whether of retribution or eventu-al loss of employment and eventually,expulsion.

<http://www.lnf.org.lb/windex/violation.html>

1. Everyone lawfully within the territory of a State shall, within thatterritory, have the right to liberty of movement and freedom tochoose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictionsexcept those which are provided by law, are necessary to protectnational security, public order, public health or morals, or the rightsand freedoms of others, and are consistent with the other rights rec-ognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his owncountry.

8. Judgment Number 228 date 2 September 2001 - Beirut inves-tigating judge.9. National law reform report of The National Committee toEliminate all Forms of Discrimination Against Women, Beirut,Lebanon.

Brief Summary on the Situation of Migrant Women Workers in Lebanon

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Arlete JuraysatiJudge, Acting President of room eight in the Supreme Court

Eligibility of WorkingMarried LebaneseWomen for SocialBenefits

Article 7 of the Lebanese Constitution, which was draft-ed in 1926, calls for equality between men and womenin rights and duties without any discrimination. Article 12also asserts the right of every Lebanese person, man orwoman, to employment in the public sector.

In spite of this reality and the series of improvements andammendments aimed at giving Lebanese women theirrights, some laws still discriminate between genders.

From a historical perspective, the progress of women'srights in Lebanon is marked by the following legal events:- 1953: Women attained suffrage rights and the right torun for elections.- 1959: The inheritance law for non-Muhammadis waspassed, giving equal rights to males and females.

In addition, Legislative Decree 112, the ‘employee guide-book,’ which was issued on June 11, 1959 and wasbased on the principle of equality in rights and duties, asstated in the Constitution, opened the way for women towork in any public administrative office.

The Lebanese Labor Law, ratified in 1946, did not dis-criminate between the female and the male employee

except when it tried to protect the female employee. Forexample, Chapter 8 of the Law entitled “EmployingWomen and Children” and Article 52 forbid the employ-er from threatening to dismiss a female employee who ison maternity leave.

- 1960: Lebanese women were given the option to keeptheir Lebanese nationality, in case of marriage to a foreigner. - 1974: Lebanese women were given the right to free-dom of movement after the annulment of the statutethat required husbands’ permission prior to issuing pass-ports to their wives. - 1983: Punishments for the use of contraceptives wereannulled.- 1987: The age for being subjected to end of serviceindemnities, as per the Social Security Law, was changedto 64 years for men and women, both having the optionto collect indemnities at age 60.1

- 1993: Articles 11, 12 and 13 of the Trade Law wererepealed and women were given the full competence toventure into commercial businesses, enter a joint liabilitycompany, and become authorizers in commandites.2

- 1995: Article 97, which used to forbid a third party fromentering into a life insurance contract for a married womanwithout her husband's permission was amended and

restricted to the supervision of the judiciary, thus restoringlegal competence, in this respect, to married women.3

Income Tax:Article 34 of the Budget Law for the year 1999 covers thisissue on the following basis: - If the wife of a taxpayer is employed in a taxable employ-ment the wife is subject to tax reduction similar to that ofan unmarried woman. If the married couple has childrenin their custody, the father is given an additional reductionfor the children, which conforms to the general principlethat a couple only benefit from one tax reduction. - In case the father dies, or if he develops a debilitating orchronically paralyzing sickness and is no longer capableof securing an income, the mother benefits from theextra tax reduction for their children.- If the husband reaches retirement age and his wifeproves that he has no source of income, the situation ofthe husband is considered by the income tax departmentas similar to that mentioned in the preceding clause andso the wife also benefits from tax reduction, even thoughit is not expressly mentioned in the law.

Thus, there is no discrimination against the marriedwoman in income tax policy, except in cases where thehusband, who has not yet reached retirement age, doesnot have any income and is not debilitated.

This essay examines an extremely important matter, onethat most people are not aware of, causing a lot of womento bypass a right that the law concedes to them. But, thislaw is often not applied. It explains conditions for the mar-ried working woman to receive social benefits (familyindemnities, sickness and maternity benefits). It also sur-veys the stages that led to the amendment of the provi-sions that deal with this issue. In the first part, the situationof the married female public servant is presented, and inthe second part the situation of the female employee ispresented.

Part One: The Situation of the Married FemalePublic ServantIn the wake of the increase in the number of femaleemployees in the public sector in the past ten years, espe-cially in realms that were traditionally considered to be maledominated, such as the judiciary and general security,women have begun to demand their fair share of socialbenefits. These benefits that include family indemnities,sickness benefits for family members of the employee andeducation allowances are stated in the employment guide-book4 and the Government Employee's Coop law, ofwhich only the male employee used to be the beneficiaryfor his family, despite the female employee paying the sub-scriptions required of all employees by the social securityfund.

Based on these revisions, in 1992 the collaborative fund forjudges (sandooq el-ta'adud) repealed all gender discrimi-nation for benefiting from contributions in the judiciary.

Next, and after consultations with the legislations andconsultations panel, the legislature amended Article 149of the law issued on October 30, 1999 which relates tobenefits allocated to female employees who are membersof the Government Employees Coop.5 The amended arti-cle states the following:

Unlike any other provision, the female employee, just as themale employee and without any discrimination, benefitsfrom the contributions of the Government Employees' Coopas per the benefits and services program as well as the edu-cation allowances program, for herself and the members ofher family (her husband and children) whether she benefitsfrom family indemnities or not. She also receives benefits foranyone in her custody including her parents and siblingsaccording to the percentages used by the Coop as dictatedby the following conditions:1. In case both spouses are members of the Coop, benefitsfor the spouse and children are given to the one with thehigher rank or grade and with the same hospitalizationclasses whether he/she is the recipient of the family indem-nities or not. 2. In case only one of the two spouses is a member of theCoop and the other receives benefits from another officialsource, the benefits of the Coop are only given to comple-ment the benefits of the other official source. 3. An employee receives all the benefits offered by the Coopfor his spouse and children (only the first five children are eli-gible) in case his/her spouse is not a member of the Coopand does not receive benefits from another source. 4. In case an education scholarship of a value lower thanthat offered by the Coop was issued, the employee mustpresent a signed statement from the employee showing theexact amount of the scholarship paid. Only then would theCoop pay the difference.5. In case of the divorce or separation of the couple, andalso in case of dispute or desertion, benefits are given to thespouse who has the custody of the children, in accordancewith the amounts stated in the bylaws of the Coop regard-less of the alimony paid.

This proves the absence of any gender discrimination inpublic employment concerning the social benefits offeredto employees.

Part Two: The Situation of the Married FemaleEmployee or Wage EarnerThe Social Security Law, specifically Articles 14 and 46specify the individuals who have the right to receivehealth and maternity benefits and family indemnities. Thehealth and maternity benefits cover the insured workersand members of their families who live under their roofsand are/or are in their custody.6

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to the appropriate religious authorities. For instance, inArticle 14 the word 'alimony' is mentioned and in Article46 the phrase 'the supported child,' and in Article 47 thephrase 'child custody.' Those expressions simply meanthat one of the parents handles the expenses of the chil-dren. However, the level, conditions and legal frameworkof this expenditure are not specified. - When the mother and father of a child are employed, itis not possible to objectively determine beforehand whatought to be the contribution of each to child support.This, because of the variety of social, economic, and liv-ing conditions that prevail in each family.- In light of what has been presented thus far, and in linewith the principle of equality in rights and duties, the log-ical interpretation of the Social Security Law should bethat the mother, who is a member of the Social SecurityFund, should receive benefits for her children as long asthey are proven to be in her legal custody (according tothe afore-mentioned conditions) and as long as her hus-band does not receive such benefits.

The importance of continuous jurisprudence on the dis-crimination between the male and the female insuredworkers regarding legal child benefits (health and mater-nity benefits and family indemnities) is apparent from theissuance of memorandum number 283, dated January19, 2004. The memorandum was issued by the generaldirector of the Social Security Fund, repealing all previ-ously issued memorandums that contradict it. The mem-orandum included the following provisions:

1. The intendment of alimony or child support mentionedin Articles 14 and 46 of the Social Security Law exceedsthe juristic meaning of these two expressions, i.e. theintendment of personal affairs, to include all effectivealimony even if he/she who undertakes this alimony orchild support is not legally bound to do so. 2. Requesting all concerned units in the Fund to adhere tothe following procedures: For the insured female toreceive health and maternity benefits and indemnities forher children she must satisfy the following conditions, asper the Articles 14/2 and 46/2 of the Social Security Law:a. The father must not be a recipient of any Social Security Fundbenefits or any other similar sources for the same children.b. A social inquiry is to be made to ensure that the chil-dren of the insured female are living under her roof andthat she is the prime provider for their expenditures.

It has, however, been made apparent to me throughinquiries I have made in some public administrations, thatsome of these administrations still do not abide by the pro-visions of this memorandum. They rather require the femaleworker to resort to the Arbitrational Labor Council for adecision to guarantee her right to these social benefits,even in cases where some other women within the samedepartment previously obtained similar decisions.

Family indemnities are offered to the workers and theinsured members mentioned in the first provision of thefirst paragraph of Article 9 of the Social Security Law.

The conditions for the benefiting of the workers' childrenfrom these indemnities are specified in provisions A andB of the second paragraph of Article 46 of the afore-mentioned law.

A dispute usually arises over alimony and child supportbased on who the specified benefactors from the above-mentioned benefits are.

The general principle mentioned in the first paragraph ofArticle 47 of the Social Security Law states that a childhas the right to only one family indemnity, if more thanone parent receives it. And according to the provisions ofArticle 46 of the same law, the father receives the famil-ial and educational benefits if the father and the mothersatisfy the afore-mentioned conditions, except if the chil-dren are in the custody of the mother alone.

In implementation of this principle, and according to mem-orandum 112 dated January 18, 1972, the female employ-ee is not legally or practically considered the head of thefamily and therefore is not eligible to benefit from familyindemnities for her children except in the following cases:1. If she is widowed, divorced, or is legally considered tohave deserted her husband.2. If her husband ceases to work for one of the followingreasons:

a. He has reached the age of 60 and in this case it shouldbe proven that the children are living with their motherand in her custody.b. He is afflicted with a physical or mental disability.c. He is serving a jail sentence.

Starting in 1996, after the revision of several decrees or rul-ings presented by female workers to the arbitrational laborcouncils, many court decisions that recognize the right ofthe mother to family indemnities for her children wereissued. I have chosen only two such pieces of legislationnumbered 210 and 202/96, which were issued by theArbitrational Labor Council in Beirut, ChairpersonChoukhaiby, and which became a permanent interpretationafter Decision 200/6, dated February 21, 2006, of theGeneral Jury of the Supreme Court. I shall mention belowthe most important points of these two decisions.

First: The Two Decisions of the Arbitrational LaborCouncil in BeirutIn general, the two decisions describe a situation in whichthe female worker's husband does not work in either theprivate or the public sectors. Therefore, he has no right toany of the social security benefits. So, the children of thefemale, and according to the previous procedures of the

Social Security Fund, are not eligible to benefit in any wayfrom social security, even though her employer is payingall the subscriptions to the various branches of the socialsecurity, and she is paying subscriptions for health andmaternity benefits, as per the laws and procedures of theinstitution. This clearly shows an injustice against thefemale worker's rights. So the Arbitrational Labor Councilbased its decision on the following principles:- The fundamental purpose on which the Social SecurityLaw and its institutions and benefits are based is undeni-ably the guaranteeing that the insured has a minimumsense of assurance through the offerings that it provides,most importantly healthcare and the meager familial aid. - Adopting any interpretation or jurisprudence that con-flicts with this rule of procedure will undermine the pro-visions of the international treaties to which Lebanon is asignatory, especially the International Labor OfficeConvention No. 111 Concerning Discrimination inRespect of Employment and Occupation which warnsagainst discrimination based on gender, religion or race.- The social security Fund's claim that the defendant's(female worker) request cannot be answered on the basisof the laws and habits of our society – specifically, the gen-eral belief that the father is the head of the family and theone responsible for its sustenance – must be dismissed.This is because such beliefs lack seriousness and veracityand because of their clash with modern social fundamen-tals which consider the wife to be her husband's equal inrights and duties, and which consider her to be equallyresponsible for the upbringing and protection of the inter-ests of the family. Hence, the aforementioned two deci-sions (201+202/96) require the social security fund to: 1. Pay her family indemnities2. Allow her to receive health benefits for her children

Second: The Decision of the General Committee ofthe Supreme CourtThe afore-mentioned decision of the general jury of theSupreme Court reiterated the provisions of the interna-tional treaties which discuss this subject, and the provi-sions include:- Articles 2 and 26 of the Convention on the Rights of theChild (CRC).7

- Article 1 of the International Labor Office Convention(No. 100) concerning Equal Remuneration for Men andWomen Workers for Work of Equal Value.8

- Article 3 of the International Covenant on Social,Economic and Cultural Rights (CSECR).

Then general principles for the resolution of the issuewere drafted:- The rulings on alimony and child support are usually theresponsibility of the relevant sects. Thus, the social secu-rity fund's decisions in these matters do not reflect thewill of the Lebanese legislation to relegate such matters

Endnotes1. Law 82/7, January 6, 1987.2. Law 380, November 14, 19943. The Law of December 8, 1995.4. Decree 112/19595. According to Article 47 of Law 179/2000, amended byLaw 324 dated April 21, 2001 and Article 2 of Law 343dated August 6, 2001, amended in the single article of Law387 dated December 14, 2001.6. As per the provisions of Paragraph II of Article 14 of theabove-mentioned law 7. Lebanon adopted CRC through Law 20/19918. Lebanon ratified this convention through LegislativeDecree 70 dated June 25, 1977.

Conclusion:Based on what has been examined above, the followingcould be deduced:1. When the social fundamentals change as a result ofalterations in social, economic and living conditions, thelaws guiding these fundamentals need to be modified.2. Amendments are usually undertaken by judges and areconsidered a natural process, since those judges are partand parcel of this society and are affected by its changesand developments.3. It is the undertaking of court jurisprudence to modify,interpret, and sometimes disrupt, under the justificationof interpretations, any laws that become antiquated anddiscriminatory. In all countries, the legislator has under-taken the responsibility of amending laws that do notkeep up with societal developments.

The above-mentioned scenario is currently repeating itselfwith what is known in Criminal Law as 'honor crimes,'and for the same reasons. In recent years, jurisprudence inthe courts has been moving towards implementing therulings on such crimes in a way which in effect under-mines its effectiveness because the judges are convincedthat these rulings are not in line with the development inthe collective mentality of Lebanese society.

And finally, it should be mentioned that even though thesituation of Lebanese women has changed in the pastdecade in all respects, the legislature should be pressuredinto amending or repealing discriminatory rulings againstwomen especially with respect to:1. What is known as honor crimes and adultery in Criminal Law;2. Lebanese nationality: the right of the Lebanese womanto give her nationality to her foreign husband, as hap-pens in developed countries;3. Personal affairs: instating civil marriage and enforcinga unified civil law on all Lebanese citizens, based on theprinciple of gender equality in rights and duties.Day after day, Lebanese women are playing an effectiverole in the educational, economic, social, and politicalfields. This entitles them to being dealt with fairly and totheir being given their basic constitutional rights.

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International Labor ConventionArticle 1The phrase “equal pay for men and women for work of equalvalue” refers to the specified average wages which are specifiedwithout discrimination based on sex.

International Covenant on Economic, Social and CulturalRightsArticle 3 The States Parties to the present Covenant undertake to ensurethe equal right of men and women to the enjoyment of all eco-nomic, social and cultural rights set forth in the present Covenant.


ment on the basis of the status, activities, expressed opinions, orbeliefs of the child's parents, legal guardians, or family members.

Article 261. States Parties shall recognize for every child the right to benefitfrom social security, including social insurance, and shall take thenecessary measures to achieve the full realization of this right inaccordance with their national law.2. The benefits should, where appropriate, be granted, taking intoaccount the resources and the circumstances of the child and per-sons having responsibility for the maintenance of the child, as wellas any other consideration relevant to an application for benefitsmade by or on behalf of the child.

Social SecurityArticle 141. Social security covers both the insured and their family mem-bers. The following is added to Paragraph 1 of Article 14, as perLaw 283 - December 12, 2002: The word ‘insured’ as mentioned in this article is understood asboth the male or female applicant without any discrimination. 2. The family members of the insured individual are those livingunder the same roof of this individual and under his expense. a. The father and mother who have at least completed the age of60 or who are incapable of providing for oneself because of aphysical or mental disabilities. b. The legal wife of the insured (in case of multiple wives only thefirst one receives benefits). c. The husband of the insured individual who has at least com-pleted 60 or who is incapable of providing for himself because ofa physical or mental disability.

Paragraph D of Article 14 of the Social Security Law isannulled and replaced with the following provision (as perArticle 80 of Law 220- May 29, 2000):d. The legal natural and adopted children of the insured individualand until they complete the age of 18. If the children are incapableof providing for themselves owing to educational commitments,they receive benefits until they complete the age of 25.- If the children are handicapped and are holders of a personal dis-ability card, and if they are incapable of providing for themselvesbecause of their disability, they receive benefits irrespective of anage limit. - The aforementioned benefits stop being issued in case the hand-icapped individual receives unemployment indemnities, as speci-fied in the law.

The provisions of Paragraph E Article 14 are annulled as perLaw 483 - December 12, 2002, and as annexed by Article 81of Law 220- May 29, 2000.3. The benefits which the female insured applicant receives for herchildren are considered - as per the interpretation provided by theNational Fund for Social Security for the aforementioned provi-sions of Paragraph D - an recognized right of the woman and herchildren, and therefore it cannot be retracted.

Article 471. A child is not given the right to more than one family indemni-ty, as per the previous article. If the conditions mentioned in theprevious article are satisfied in more than one person then thefamily and educational benefits are issued to:a. the father, if the aforementioned conditions are satisfied by thefather and mother, unless the mother is the sole provider for thechildren. b. to the adoptive parents, or guardians when those, as the par-ents, satisfy the mentioned conditions.

Convention on the Rights of the ChildArticle 21. States Parties shall respect and ensure the rights set forth in thepresent Convention to each child within their jurisdiction withoutdiscrimination of any kind, irrespective of the child's or his or herparent's or legal guardian's race, color, sex, language, religion,political or other opinion, national, ethnic or social origin, proper-ty, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure thatthe child is protected against all forms of discrimination or punish-

Bill for the Amendment of Articles 11, 12 and 13 of theLegislative Decree 304, Dated December 24,1942 (The LandTrade Law) and its Amendments

Article 1:The provision of Article 11 of the Land Trade Law were repealedand replaced with the following provision: ‘The married womanhas the full merit to practice land trade.’Article 2: The provision of Article 12 of the Land Trade Law was repealedand replaced with the following provision: ‘When in a tradingbusiness, the married woman has the right to undertake any jobrequired by her commercial enterprise.’Article 3:The provision of Article 13 of the Land Trade Law was repealedand replaced with the following provision: ‘The married womanhas the right to enter a joint liability company or become a com-missioner at a commandite.’Article 4:The law shall be operative as soon as it is published in the officialgazette.

The Law of Obligations and ContractsDecree 383- August 15, 1995 repealed Article 997 of the Law ofObligations and Contracts and replaced it with the following provi-sion:Article 997- ‘No third party is allowed to enter a warrant depend-ing on the death of a person who has been put under judicialsupervision without the permission of the supervisor. This permis-sion does not supersede the consent of the incapacitated personwhen required. In case neither the permission nor the consent is athand, the contract could be repealed under the request of the super-visor, or the signatory to the conditions list or the insurer, as the cir-cumstance requires.’

Law 87/2Article 11. The insured's submission to the end of service indemnity divisionends and the indemnity is liquidated when the age of 64 is complet-ed. He has the right for his indemnity to be liquidated when he com-pletes the age of 60 and when the stated maximum level for sub-mission is reached.

Social SecurityFamily IndemnitiesArticle 46A fund for family indemnities is to be established the organization ofwhich is specified in this section and its resources are specified inChapter 3, Section 1, Volume III, of this law.1. Family indemnities are issued to the workers mentioned inParagraph 1 of Article 9 and Article 10 of this law and to the recipi-ents of health, maternity and work emergencies insurance if the inca-pacitation level exceeds 50 percent.2. The claimants for family indemnities include the following:a. Every supported child, as per Clause J of Paragraph 2 of Article 14.b. Every supported child with a physical disability, irrespective of theage, and every single and unwaged girl who has not yet reached theage of 15.c. The legal wife living in the house if she does not have a paying job.

Appendix

1. Added to Paragraph 2 of Article 14 of the Social Security Law, as perLaw 220 dated May 29, 2000, is provision E which states the following:E- The legal natural and adopted children of the insured worker if she hasthe responsibility of maintaining them due to the incapacity of the hus-band and according to the conditions stated in Article D of the SocialSecurity Law. This provision expressly distinguishes between the male andfemale insured worker with respect to the receiving healthcare benefitsfor children, whereby they could receive benefits from their mother whenshe maintains them i.e. provides for them because of the incapacity oftheir father. Therefore, if the father is below 60 years of age, they do notreceive the mentioned benefits whether or not he has a job. If he completes the aforementioned age limit and the mother providesfor them, they receive benefits so long as the father receives the samebenefits on the name of the mother (Article 14/2/D of the Social SecurityLaw).Unlike the clear statutory provisions, the fund's administration considersthat the children have the right to receive benefits on the name of theirmother if their father does not receive similar benefits through anothermandatory system.It must be mentioned that the addition of provision D presented above,to Paragraph 2 of Article 14 of the Social Security Law does not modifythe conditions for the entitlement of family indemnities, and therefore,there is no discrimination in area between the male and the femaleinsured individual as reached by canonical and juridical jurisprudence.

Press Memorandum 283January 19, 2001

Topic: The extent of benefits from the social security for chil-dren on their mother's name

In line with the Social Security Law, especially Articles 14 and 46which relate to the right of children to receive health and mater-nity benefits and family indemnities.

And since health and maternity benefits include the insured individ-uals and the members of their families, as specified in Paragraph 2of Article 14 of the abovementioned law, i.e., those living under theroof of the insured individual and under his maintenance,

And since family indemnities are offered for workers and the rest ofthe insured individuals as per the first provision of the first paragraphof Article 9 of the Social Security Law,

And since the alimony or maintenance mentioned in Articles 14and 46 of the Social Security Law exceeds the juristic meaning ofthese two expressions, i.e. the intendment of personal affairs, toinclude all effective alimony even if he/she who undertakes thisalimony or child support is not legally bound to do so,

And since the mentioned law does not discriminate between thereception of benefits between the male and the female individualwith regards to the children registered under the name of one ofthem for benefits,

And since jurisprudence has recently not discriminated between themale and the female insured individuals with regards to the childrenwho have the right to receive from the maternity and health bene-fits of social security, as well as family indemnities, in case the con-ditions for the entitlement for these benefits are satisfied (Resolution6/2000 issued on February 21, 2000 by the Supreme Court),

And since in case both parents are eligible for receiving health andmaternity benefits for their children, the benefits receive thosebenefits from their father, (Article 72 of the sixth manual – themedical manual),

And since in case both parents satisfy the legal conditions to theentitlement for family indemnities for their children, the indemni-ties are paid for the father, unless their legal custody is in the handsof their mother alone (Article 47-1-a of the Social Security Law),

The following has been decided:All concerned units of the social security fund must abide by thefollowing:Firstly, for the insured female employee to receive health and

maternity benefits and family indemnities for her children, as perthe Articles 14/2 and 46/2 of the Social Security Law, she must sat-isfy the following:

1. The father must not be eligible for receiving any of the benefitsof the Social Security Fund or from any other similar sources forthe same children. 2. A social inquiry is to be made to ensure that the children of theinsured female are living under her roof and that she is the primeprovider for their expenditures.1

Secondly, all provisions issued by the general director of the fundwhich contradict the content of this memorandum are to berepealed, especially article 2 of resolution 77 dated March 19, 1970(the internal plan to execute social security family indemnities), andpress memorandum 112 dated January 18, 1972 which relates to theright of the female worker to family indemnities. In addition to thethird paragraph of the labor conduct number 1 (which was annexedto memorandum 30 dated November 23, 1981) which relates to theright of the married female worker to family indemnities.

General Director,

Khalil Majid

Endnotes

Translated by Ahmad Ghaddar

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Iqbal Murad DoughanPresident, Working Women’s League in Lebanon Lawyer

Working Women in Lebanon

Social legislation in Lebanon does not date back a longtime. It is contemporaneous with the industrial develop-ment just prior to and after World War II.

Clauses 624-656 of the Law of Obligations and Contractsare the only ones that deal with workers and labor, sinceeconomic activity used to be restricted to agriculture. Butdue to economic prosperity, economic openness, com-mercial exchange, and the mainstream economic ideasthat advocate economic justice and industrial advance-ment, the need to adopt new laws to organize the con-ditions of workers and labor emerged.

Thus, labor legislation and the legislations supplementingit have come into existence: These are:- The Lebanese Labor Law issued on September 23, 1946with its seven chapters, two supplements, and prelimi-nary provisions which designate the employer, the hiredindividual (employee or worker), the intern, the syndi-cate, and the institution.- The Law of the Organization of Syndicates under Decree7993 issued on April 3, 1952.- The Law of Social Security issued on September 26,1963 under Decree 13955 and its attempt to providecommunal and social security.

It should be pointed out that labor, social security, andsyndicate organization laws are restricted to work withinthe private sector and some public institutions, and donot include government employees and the public sector. If we were to discuss the status of women under the1946 Lebanese Labor Law — whose provisions do notclearly distinguish between men and women as the pres-

ence of women in the labor force back then was meager– we find that its provisions adopted the principle of gen-der equality in case of equivalence of employment. Andwhen the minimum wage was adopted in the years1941, 1942, and 1943, the law made equal the remu-nerations of women and men whenever they wereundertaking the same employment.

The decree issued in this respect in 1965 clearly calls forthe application of the law to all employees (male andfemale) when women undertake the same job as men.

The Labor Law has put into action specific measures thatlegally protect workers of both genders and specific mea-sures that protect female workers only (Articles 21-30).

We have the following remarks about this:Protective measures for female workers were taken,alongside protective measures for juveniles. This is anindication that the law views females, even when of adultage, as minors:- The law prohibited employing women at night.- The law allows a woman to leave her job due to mar-riage without specifying her period of absence. This con-firms the legislator's view that her job is unnecessary andthat her household duties take precedence over her workoutside the home. - The law prohibits employing women in certain indus-tries (first supplement to Article 43).- The employer must provide a minimum one-hour break atnoon whenever the work hours exceed five hours a day forwomen and six hours a day for men. We contend that thisprovision should include all workers and not just women.

- The requirement to sit down during breaks for femaleemployees whose work requires their being in a standingposition.- Fully paid maternity leave — regardless of the worker'scontract type — that lasts for at least 40 days, 30 ofwhich must be postnatal. This leave is independent of theannual and other vacations.It must be mentioned that the Labor Law excludesdomestic and agricultural workers.

The Lebanese government has ratified the Convention onthe Elimination of all Forms of Discrimination AgainstWomen which states in Article 11, about which there areno reservations whatsoever, that:

States Parties shall take all appropriate measures to elimi-nate discrimination against women in the field of employ-ment in order to ensure, on a basis of equality of men andwomen, the same rights, in particular: 1.The right to work, the right to the same employmentopportunities, to equal remuneration including benefits,the right to social security, and to protection of health...2. In order to prevent discrimination against women onthe grounds of marriage or maternity and to ensure theireffective right to work, States Parties shall take appropri-ate measures:- To prohibit, subject to the imposition of sanctions, dis-missal on the grounds of pregnancy or of maternity leave anddiscrimination in dismissals on the basis of marital status - To introduce maternity leave with pay or with compara-ble social benefits without loss of former employment,seniority or social allowances - To encourage the provision of the necessary supportingsocial services to enable parents to combine family oblig-ations with work responsibilities and participation in pub-lic life, in particular through promoting the establishmentand development of a network of child-care facilities- To provide special protection to women during preg-nancy in types of work proved to be harmful to them.3.Protective legislation relating to matters covered in thisarticle are to be reviewed periodically.

In 2005, as part of the implementation of this treaty inLebanon, and as a result of the request of civil society toamend the Labor Law to correspond with the provisionsof this convention and other international labor treatiesthat Lebanon has ratified, a number of amendmentswere made through Law 207. Although these amend-ments are not sufficient, they constitute commendableprogress. The amendments include the following:- The provision of Article 26, which forbade women fromworking at night in the industrial sector, was annulled. Itwas replaced by a provision that clearly prohibits any gen-der discrimination between workers concerning employ-ment type, remuneration, employment, promotions andadvancements, vocational training and attire.

- Article 29 was amended to extend the maternity leavefrom 40 days to seven fully paid weeks. This includes thepre- and post-natal periods, but still falls short of thematernity leave of the female employee that reaches twomonths in countries like Yemen. It also falls short of theperiod specified by the Fifth Arab Labor Treaty which is atleast ten weeks. The period is also shorter than the peri-od specified by the 103rd International Labor Treaty,which Lebanon has not ratified to date, and which spec-ifies a period of at least 12 weeks, no less than six weeksof which is after birth. - Article 52 of the Labor Law, used to prohibit theissuance of a dismissal warning to a pregnant workingfemale until she is five months into her pregnancy. Thisprohibition now covers the period falling between thebeginning of the pregnancy and the worker's return fromher maternity leave.Although we welcome these amendments, we insist thatthey be coupled with certain follow-up procedures andamendments including:- Ratifying all Arab and international labor treaties per-taining to the rights of female workers (for example: TheFifth Arab Labor Treaty and the International LaborOrganization 103rd Convention.)- Raising the work age of male and female juveniles so thatit is forbidden to employ them before they are of age- Separating between the rulings for women and for juve-niles, due to the difference between the needs for pro-tection for each - Reducing the protective measures not relating to mater-nity, because exaggerated protection may becomecounter-productive to women's interests, especially whenemployers stop making use of their services - Unifying protective measures to include both males andfemales- Allowing part-time shifts for both genders- Taking punitive action against sexual harassment bysuperiors and co-workers- Considering maternity a social duty whereby renewal ofgenerations is necessary for the existence of a society and itscontinuation. The government and the social security fundshould bear the cost of women's wages during their mater-nity leaves. This would encourage employers to hire them. - Encouraging women to take part in syndicates throughenacting a quota system in the executive councils ofthose syndicates.

We are aware that gender discrimination used to take placeduring the implementation of laws and that it still does.Even if no anti-discrimination provisions exists, what isrequired is changing the mentality of society on one hand,and women's efforts exerted in proving their capabilitiesand qualifications in the work field, on the other hand.

Translated by Ahmad Ghaddar

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What is the Quota System?The core idea behind quota systems is to recruit womeninto political positions and to ensure that women are notisolated from political life. They usually set a target orminimum threshold for women and aim at ensuring thatwomen constitute at least a ‘critical minority’ of 30 or 40per cent in decision-making positions.

There are several types of quota systems9 that may beenforced either through a constitutional quota for nationalparliaments, as election law quotas, or in the internal struc-tures of political parties. To date 92 countries have imple-mented the quota system constitutionally, in legislativemandates or through voluntary political party quotas.10

When the Lebanese cabinet created a commission to pro-pose a new electoral law in August 2005,11 one of thecommission's primary tasks included the study of the pos-sibility of introducing the women's quota system. To get anobjective viewpoint about all aspects of the electoral sys-tem, political parties, organizations, NGOs, and individualswere invited to present their proposals and to fill in a ques-tionnaire with 18 points. Point 6 specifically asked: ‘Areyou in favor of introducing a women's quota system: a) asreserved seats in parliament (10-30 percent), b) on elec-toral lists c) against d) no opinion?’ Of the 121 proposalspresented, only 6 were by female organizations12 or indi-vidual females. The results were as follows:

• 16.3 percent were in favor of implementing a 30 percent quota system in parliament as stipulated byBeijing and signed by Lebanon.• 5.4 percent were in favor of a quota of 10-20 percentof seats in parliament.• 23.9 percent were in favor of introducing a quota sys-tem on the electoral lists.• 35.9 percent were categorically against any form ofquota.• 5.8 percent had no opinion on the matter.

In short, 46.5 percent were in favor of insuring someform of female representation either at the candidacylevel or at the parliament level, for a temporary transi-tional period.

To further clarify the proposal with the questionnaire'smultiple questions, the commission was invited to anopen two-day discussion to debate all the proposals. Oneof the items on the agenda was specifically the issue of awomen's quota. After a general introduction on the his-tory, pros and cons of the quota system,13 the discussionthat ensued raised some of the following concerns:

The majority of those opposing any system of a women'squota argued that the Lebanese Constitution very clearly

grants equal rights to all its citizens and hence the intro-duction of ‘special favors’ is highly unconstitutional andundemocratic.

Others argued that while the law grants women politicalrights, any substantial progress is hampered by the patriar-chal confessional system, in addition to the financial con-straints that make it impossible for women to pay the reg-istration, campaigning and advertisement costs. In short,unless a quota system was imposed, women would neverhave a say in decision-making and Lebanon would neverbe able to honor its being a signatory of Beijing andCEDAW.

Would Introduction of a Quota System be Viewedas Unconstitutional and Undemocratic? At the outset, it is important to revisit the concept ofdemocracy and its modes of application in the twenty-first century. Although the ancient traditional Greek worddefines democracy as the rule of the demos or the peo-ple, i.e. the majority, women in Athens were excludedfrom the right to vote. To Athenians, the principle ofequality was only applicable in the public sphere of thepolis and women formed part of the private sector(oikos).14 During its work on a new electoral law forFrance, the Vedel Commission15 stated that it is impera-tive to find a system that ensures parliamentary seats togroups that normally would not be capable of securing amajority. In systems like Lebanon where democracy isconsensual, the rights and aspirations of permanentstructural minorities,16 including ‘women,’ have to beinsured. It may, however, be argued that the female pop-ulation of Lebanon constitutes 52 per cent of Lebanesepopulation, and hence cannot be classified as a minority.Moreover, the Constitution does not bar women fromtheir civil rights. While the Constitution in theory clearlygrants women ‘civil rights’ and the right to political rep-resentation, in practice their civic status remains far fromwhat is desired. Furthermore, it is simply not enough tohave the right to vote. A mechanism should also bedefined to designate the potential candidates and tofacilitate the procedure by which they may be elected. 17

Why is it important that women participate in politics?Why should nations artificially accelerate the process andnot wait for the natural course of time?

In the course of half a century of Lebanese parliamentaryhistory, the number of women deputies has not exceededsix, with one exception at the ministerial level18 and analmost total absence in the polit bureaux of political par-ties. This implies that the wait for a natural process andselection may be quite a long and frustrating experience.Thus there is a dire need for artificial intervention andacceleration, a step that will simply launch the process fora limited period, namely the enforcement of a quota sys-

By Arda Arsenian Ekmekji*Dean of Arts and SciencesHaigazian University, Beirut

The Implementation of aWomen’s Quota System inLebanese Legislation

Lebanon was among the first Arab countries to grantwomen suffrage rights in 1953. Its Constitution clearlystipulates that all its citizens have equal rights (Article 7)1

and enjoy equal opportunities in all spheres of life (Article12). 2 Yet after half a century of alleged political rights, itis surprising to find that female representation in theLebanese parliament is still at a minimum. In the 2005legislative elections, only six women out of the 128 mem-bers made it to parliament (4.7 percent), thus rankingLebanon 125th (out of 138) on the IPU list.3 For a coun-try that prides itself on being among the pioneer MiddleEastern countries in the high proportion of women col-lege graduates the above grading is quite ‘degrading.’The late women's rights activist, Laure Moghaizel,4 onceexclaimed that all Lebanese women who enter parlia-ment do so wearing black since they always run for a seatvacated by a deceased father or spouse.

Why has women's participation in Lebanese politics been soslow? Although analysis of its causes is beyond the scope ofthis article, suffice it to mention here that some attributethis lack of participation to the country's confessional sys-tem of representation, while others believe that in spite ofits avant-garde profile, Lebanon is still cocooned in anextremely parochial and patriarchal system. Furthermore, a

recent study on post-conflict societies has noted that sincemen are usually the warmongers, peace negotiations con-sequently further exclude women in post-war parliaments.5

However, poor female representation in decision-makingpositions is not restricted to the Lebanese scene and is quitean international phenomenon since the actual global rateof female representation in national parliaments stands atan average of nearly 17.7 percent to date.6

Given this ‘under-representation’ of women in legislativecircles, various international positive action measures havebeen proposed or implemented to address the presentgender issue. To cite a few: The International Bill of HumanRights (1948) followed by the Convention on theElimination of all Forms of Discrimination Against Women(CEDAW, 1979), culminating with Beijing 1995, all advo-cate equal political rights for women and the developmentof a mechanism that will ensure that women's voices areheard on decision-making platforms. One of the mostpowerful vehicles to ensure this is the ‘quota system.’7

This article analyzes whether a quota system should beimplemented in the Lebanese electoral law and whethersuch a step would be viewed as unconstitutional andundemocratic or as enforced ‘positive discrimination.’8

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tem, “for gender quotas are not the end, but the begin-ning of a process.”19

Quota systems, a priori presume the existence of animbalance in the legislative political structure. They are,therefore, an ‘expression of impatience’ for gender equi-ty in the political sphere and a tool that provides a jump-start to begin correcting these imbalances. Furthermore,no country can claim to be truly democratic when 52 percent of its population is marginalized. The UN report,Women and Elections,20 clearly states: “Only when insti-tutions are democratic and representative of all groups insociety – women as well as men, minorities as well asmajorities, the dispossessed as well as the affluent – arestable peace and national prosperity likely to beachieved.”21

Furthermore, as previously mentioned, electoral rightsmean much more than simply the right to vote. They alsoinclude freedom of expression, of assembly and associa-

tion, freedom to take part in the conduct of public affairs,to hold office at all levels of government, etc… 'UnitedNations international human rights instruments affirmthat women are entitled to enjoy all these rights and free-doms on the same level as men. Women's equal partici-pation is therefore essential to the conduct of democrat-ic elections.22

Because of all the above and because: “One of the mosteffective ways to ensure that women are elected to officeis to require that party candidate lists be gender balancedor include a certain proportion of women,”23 the LebaneseCommission proposed imposing a 30 per cent quota on allelectoral lists for a temporary period of three electoralrounds (12 years). In other words, no electoral list will beregistered unless it includes a minimum of one woman'sname out of each three candidates. Furthermore, beingaware that “more women tend to be elected under theproportional representation system,”24 the Commissionintroduced a partial proportional system of voting along-

Endnotes* Arda A. Ekmekji is the only female member of the recentlyappointed Commission for a New Lebanese Electoral Law.1. Article 7: All the Lebanese are equal before the law. Theyenjoy equal civil and political rights and are equally subjected topublic charges and duties, without any distinction whatever.2. Article 12: All Lebanese citizens are equally admitted to allpublic functions without any other cause for preference excepttheir merit and competence and according to the conditions setby law. A special statute shall govern civil servants according tothe administrations to which they belong.3. International List of Women in Parliament (IPU, November2005).4. Laure Moghaizel, 1929-1997, lawyer and activist, author ofWomen in the Lebanese Legislative System, [Arabic], IWSAW,LAU, Beirut, 1985.5. United Nations. March 2005. Women & Elections. Guide toPromoting the Participation of Women in Elections. p.8.6. Inter-Parliamentary Union (www.ipu.org).7. IDEA - International Institute for Democracy and ElectoralAssistance (www.idea.int/).8. See also Bunagan, Melanie Reyes, Ma. Dashell Yancha, “TheQuota System: Women's Boon or Bane ?”, in Women Aroundthe World, (Editor: Sheila Espine-Villaluz)) A quarterly Publicationof the Center for Legislative Development , April 2000, Vol. 1,No. 3.9. Dahlerup, D. 1988. “From a small to a large minority: Womenin Scandinavian politics,” Scandinavian Political Studies, 11, pp.275-98.10. Global Database of Quotas for Women, A joint project of

Lower or single HouseRank Country Elections Seats* Women % W

1 Rwanda 09 2003 80 39 48.82 Sweden 09 2002 349 158 45.33 Norway 09 2005 169 64 37.94 Finland 03 2003 200 75 37.55 Denmark 02 2005 179 66 36.9

10 Belgium 05 2003 150 52 34.716 Iraq 01 2005 273 86 31.534 Tunisia 10 2004 189 43 22.863 Cyprus 05 2001 56 9 16.166 USA 11 2004 435 66 15.267 Israel 01 2003 120 18 1581 France 06 2002 574 70 12.283 Syria 03 2003 250 30 1290 Morocco 09 2002 325 35 10.898 Sudan 12 2000 360 35 9.7

118 Algeria 05 2002 389 24 6.2121 Jordan 06 2003 110 6 5.5125 Lebanon 05 2005 128 6 4.7

" Libya 03 1997 760 36 4.7126 Turkey 11 2002 550 24 4.4127 Iran 02 2004 290 12 4.1133 Egypt 11 2000 454 13 2.9134 Oman 10 2003 83 2 2.4135 Kuwait 07 2003 65 1 1.5137 Yemen 04 2003 301 1 0.3138 Bahrain 10 2002 40 0 0

" Saudi Arabia 04 2005 150 0 0" UAE 02 2003 40 0 0

International IDEA and Stockholm University (www.idea.int/)11.Cabinet Decision No 58 dated August 8, 2005.12. It is important to note that two of these proposals weremade by women's organizations that include at least 166other organizations.13. Session chaired by author of this article. 14. Marques-Pereira, B. 2003. La Citoyenneté Politique desFemmes. Armand Colin : Paris, p.15.15. Extract from Rapport sur le Problème de la réforme dumode de scrutin pour l'élection des députes. (Report of theGeorge Vedel Commission) February 1993.16. Gérard, P. 1995. Droit et Démocratie, Publications des fac-ultés universitaires Saint-Louis, Bruxelles, p. 212.17. Martin, P. 1994. Les Systèmes électoraux et les modes deScrutin. Montchrestien, Paris, p. 9.18. The cabinet of Omar Karame in September 2004 includedfor the first time two women ministers.19. See Women's Quotas in IDEA - International Institute forDemocracy and Electoral Assistance (www.idea.int/)20. Op. cit. United Nations. 21. ibid. p. 5.22. ibid. p.10.23. ibid. p. 36.24. ibid. p. 24.25. ibid. p. 10.26. http://www.un.org/womenwatch/daw/cedaw/text/econ-vention.htm#article4 clause 127. Maa Data (www.maadata.org) Report, January 2006.

side the conventional majority system that has so far beenproven to be unfair to women's representation.

Could the Adoption of a Quota System beDismissed by Parliament as Unconstitutional? It is true that the Lebanese law stipulates in theory thatall its citizens are equal, but in practice this equality hasnever been implemented. It may be argued, therefore,that any election that does not provide the opportunityfor full and equal participation by women fails to complywith international obligations and standards25 and anystep that artificially and temporarily accelerates thisprocess and realizes the Constitution should, therefore,be viewed as right and democratic.

Furthermore, Lebanon has ratified the CEDAW andBeijing conventions and these clearly state:26

Adoption by States Parties of temporary special measuresaimed at accelerating de facto equality between men andwomen shall not be considered discrimination as definedin the present Convention, but shall in no way entail as aconsequence the maintenance of unequal or separatestandards; these measures shall be discontinued when the

objectives of equality of opportunity and treatment havebeen achieved.

The question to be asked here is: “If parliament ratifiesthe quota system, will this ratification and its implemen-tation lead to the desired goals?” And is the Lebanesepublic ready for the change that insues? A recent studyconducted by the Lebanese Women's Association27 onthe role of women in Lebanese elections clearly showedthat 81 percent of respondents encouraged a women'squota system in parliament and 76 percent favored thenomination of women deputies to office.

Finally, although the quota system provides an officialtool to facilitate women's participation in politics, themain responsibility for making use of it and using it effi-ciently remains the responsibility of women themselves.Unless full advantage is taken of these ‘temporary mea-sures,’ and unless Lebanese women assume their activerole in the political arena, Lebanon may soon lose its125th position to get pushed further towards the bottomof the list alongside nations with the smallest number ofwomen parliamentarians in the world.

Women in National ParliamentsWorld Classification

* Figures correspond to the number of seats currently filled in ParliamentSource: http://www.ipu.org/wmn-e/classif.htm

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dom, then it would be difficult to justify the discrepancyin status between family members, especially betweenadults. Such discrepancy is opposed by believers inhuman rights, feminists and others who adopt trends ofpost-modernity. Others try to justify the traditional un-egalitarian laws by supplying theories of philosophicalanthropology that justify male superiority. Such theoriesoverlook the practical aim behind giving precedence tomen, essentializing male superiority and overlooking indi-vidual variation and any evidence of lived experience con-trary to such theories. The history of civilization aboundswith such theories from the time of Aristotle, whoseenthusiasm for proving male superiority led him to blun-ders such as the claim that men have more teeth thanwomen, to the modern times with Rousseau, Kant,Hegel, Freud, and many others.

For example, Freud considers women to be lacking inconscience (weaker super-ego) and in the power to sub-limate. He also finds a difference in men's and women'semotional involvement with others, claiming that menare capable of loving the other as an other and women'slove remains fixated in the narcissistic; i.e. that it is usual-ly an extension of their self-love. Both of these Freudiandifferentiations between men and women are capable ofjustifying that men and not women should be in com-mand of the family, as their superior conscience makesthem better guardians of justice (rationality, fairness), andas their comparatively selfless love makes them more fitto be entrusted with the well-being of others.

Indeed the justification of existing forms of organizationand of power have swayed common-sense beliefs aboutthe difference between men and women so far, that evenrecent researchers could not evade its impact. For exam-ple, Garai and Scheinfeld (1968) describe a collection ofmeasures on which women performed better than menas ‘clerical abilities’ rather than, say, ‘superior ability atorganization;’ and Gray (1971) describes another catego-ry of activities on which women got higher scores thanmen as ‘fearfulness’ rather than, say, ‘higher alertness’ or‘quicker reflex.’ Male superiority is taken so much forgranted that the evidence of any female superiority isseen as a propensity towards excelling in subordination ortowards the need to be protected.

It is to be remarked, however, that while some philo-sophical and other high-handed theories divest womenof mental, moral and emotional equality with men, liter-ature, even from ancient times, recognized women's fullhuman stature, creating characters such as Antigone,Lady MacBeth, and Shehrazade.

The Law: Eternal or ModifiableIn the philosophy of law, we find two large groupings of

positions concerning the actual and desired origin of, andrationale for, the law:

Some hold that law is, and ought to be, rationally orauthoritatively construed and/or divinely revealed so thatit may mould, or create or recreate society in a certaindesired fashion. Others maintain that it is social normsand opinions that do, and should, create laws; and thatlaws must, and will, get changed and revised when soci-ety outgrows them.

1. Authoritarian views sometimes spring from ideologiesand sometimes from religious beliefs. The champions ofauthoritarianism include Plato, St. Augustine, Peter theGreat, Mustafa Kemal (Atatürk), as well as regimes likethose of Saudi Arabia and of the recently dismantledTaliban of Afghanistan. These individuals and schools ofthought and regimes believe that a system ought to beimposed on society in order to steer it towards an envis-aged end. This end could be the 'eternal good,' an ideal-ized 'Europeanization,' the kingdom of heaven on earthor the Garden of Eden in the afterlife as the one goal ofthis life.

The English philosopher and legislator Jeremy Bentham,and his disciples, have a philosophy of law that believesthat reason, guided by the principle of universal andimpartial utility, is the best legislator. Their philosophywas highly influential for some time, although the codesof law that Bentham drafted, whether for Tsarist Russia orfor emerging Latin American republics, did not prove,upon application, to be very successful. The recentlydeceased American philosopher John Rawls proposesanother rationalistic (Kantian) philosophy of law, settinga standard of Justice as Fairness based on two principlesof justice, governing rights and opportunities as well asthe distribution of wealth. His theory is claimed to con-stitute a standard that measures fairness analogous tothe standard that measures ethics described in Kant'sFoundation (or Grounding) of the Metaphysics of Morals.

Parallel to this trust in reason, there is the belief of manyIslamic jurists that shari'a is the proper and the bestground of legislation. They consider shari'a as law parexcellence and as an authoritative blueprint based on rev-elation (Anderson, p.3). Indeed religious bases of legisla-tion tend, in general, to resist change. Thus, evenChristianity, which has comparatively left 'what'sCaesar's to Caesar' is still resisting changing the vow ofobedience by the wife to her husband, despite the preva-lence of an ideology of equality in Christendom.

2. Believers in Change: In criticizing the blind belief ofsome jurists in reason, Oliphant draws attention to theinevitable need to consider legal questions from the prag-

Najla Hamadeh

Family Laws: The Changing andthe Pseudo-Eternal

Dictates of Practical Efficiency and its JustificationLaws are a basic necessity of civilized living. They organizethe various functions in society, ensure property rights, andaim to restrain transgression by stipulating to punish orrehabilitate transgressors. Laws also define the rights andresponsibilities of each person vis-à-vis the state and withrespect to other people. This is why they are an integralpart, indeed a justification, of any theory of social contract.

But despite the crucial importance of regulating families,which constitute the basic building blocks of society, thelaw faces more difficulties in gaining access to the familythan it does in acceding to other bigger more conspicu-ous social units. This is because the family's vigil to guardits privacy and its comparative smallness of size make itmuch more elusive and harder to control. Hence, ideolo-gies that are very much into control, such as those ofPlato's Republic and George Orwell's 1984 see the fami-ly as undesirable or 'ungood.'

Historically, the mode that societies chose for regulatingor controlling the family took the form of giving domi-nance within it to the father/husband, so that he is heldresponsible for it in the eyes of society, while urging thefamily to regard him as its leader and primary decision

maker. This form of organization or delegation of controlby society was often enforced by family legislation.

But as law includes aspects other than the organization-al that seek to control, family status laws are enmeshedin several practical and ethical problems that are ignoredby the above one-sided consideration.

In the first place, as with all laws, family law is supposedto have a judicial or quasi-judicial function in accordancewith the traditional role of courts as guardians of theweak and unprotected. By giving additional status to thephysically stronger member of the family (father/hus-band), family status law further weakens the position ofthe weaker members of the family and exposes them topossible tyranny or cruelty.

In the second place, the justification of a law is frequent-ly based on ethics (Tullock, p.4). Thus, critics and discus-sants of the law, as opposed to legal positivists whoargue that the law is simply what is decreed by legisla-tors, argue for, or critique, a law on the basis of how farit conforms to, or deviates from, ethical standards. If themoral stance is the one that leads to treating all humanbeings as equally entitled to happiness, dignity and free-

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matic point of view, whenever “general principles lead toshockingly unfair results” (Oliphant, pp. 20-1). JusticeHolmes attributes such a belief to an innate desire for adeceptive sense of mathematical exactitude that flattersthe mind's longing for certainty and repose; and Dewyrefers the rational or idealistic position to an aestheticquality of the mind which responds to the form of sym-metry of the syllogism and is cold to the apparent disor-der of experimental thinking. He adds that the symmetri-cal is also favored because it involves less work.

Several critics of basing legislation on the authority of theabsolute fixed dictates of reason insist that words, includ-ing concepts that are crucial to legislation, should alwaysbe understood in their context, since in different contextsthey may have different meanings. Thus, terms like 'law,''right' and 'status' are ambiguous, having a common-sense meaning that is known but not understood, and apractical significance that derives from how much powerthe one whose 'right' or 'status' is being mentioned has,and from whether or not the one in charge of a law hasthe intention of, and the means to, implement it.

In criticizing those who profess commitment to animmutable shari'a, Anderson mentions that jurists ofearly Islam were perfectly free to go back to the basicsources and make their own deduc-tions. He also points out that shar-i'a was never fully enforced, that agreat deal of it is moral rather thanlegal and that a great deal of it has,from the beginning, been intermin-gled with local customs and modi-fied by them (Anderson, pp. 2-5).Hassan Al-Turabi claims that whilepretending to guard things as'God's Word' intends them, men incharge of Islamic schools ofjurisprudence (madhaheb) havebeen gradually taking away fromwomen the rights that Islam gaveto them (Al-Turabi, pp. 182-3).Hocking points out the interestingfact that although most codes were originally propound-ed by mystics and prophets, and although the mysticvision is an essential component of a life within the nat-ural world, pure mystic vision vanishes out into meaning-lessness and total impracticality (Hocking, pp. 270-1).This is perhaps why Christ instructed to separate what isCaesar's from what is God's. This also could be why Islamgave such weight to shura (discussion) and ijma' (con-sensus), as leeway to introducing the worldly dimensioninto divinely revealed law.

Nowadays, those who uphold the empirical and essen-

tially democratic position include Sanigny, Ehrlich,Oliphant, Hart, and others, including some earlier andpresent-day Islamists. The Tunisian regime of Burghibahimplicitly holds such a view regarding shari'a as is evi-denced by its considering laws that permit polygyny to beno longer suitable for Muslim communities. Similarly,Inamullah Khan advises Muslims to follow the prophet'sinstruction when he says: “Knowledge is the property ofthe Muslim; seek for it wherever you find it” (Malik, p.3).Khan believes that the nineteenth and twentieth cen-turies witnessed the rediscovery of ijtihad, ijma' andshura, and that all those who obey the prophet shouldpursue these trends in legislating for their respective soci-eties.

Those who believe that law ought to be the offspring ofevolving social reality form the prominent and the largesttrend among legislators in the industrial world. But in theso-called developing world, sometimes the oppositetrend, which upholds the immutability of the law, stillpredominates, especially where family law is concerned.Friedmann observes that although some countries in theIslamic world have introduced changes in family law,changes in commercial and civil laws have evolved at amuch faster pace (Friedmann, p.12). Indeed, even theclear dictates of the Qur'anic text, such as the prohibition

of taking interest on money lent,have generally been ignored inmost Islamic countries, where cor-porate law has long been secular-ized. Moreover, family jurisdiction isthe only legal function still left toreligious judges (qadis) and the onlydomain in which the older wordsand procedures in legislation andruling are still preserved (Anderson,pp. 3-5).

Is this surprising in a world in whichmen and their interests rule? Isn't ita natural ruling of the interests anddesires of patriarchy that allowsmen to have access to interest on

their money and stay sole rulers of their families? Clearly,it is not because religion is more keen on restrictingwomen than bankers and businessmen, but becausebankers are powerful in policy making and women lackpower and access to decision making that the desires andsometimes whims of the former are accommodated,while the latter are denied equity (see works of Aziza Al-Hibri, Mona Zulfikar, Mona Haddad-Yakan, and manyother Islamist feminists).

Family Law and ChangeThose who study the course of history recognize change

as the norm in human development across time. Indeedthe very notion of 'history' presupposes change in timeand recognizes that it is only in the human context thatevents can happen not according to cyclic or accidentalfactors, but either according to purposeful planning or inthe course of ongoing social or economic or other formsof change or development that leave earlier stagesbehind.

Since the family is the material of which society is made,no social change can happen without touching the fam-ily or being touched by it. Among those in charge of fam-ily laws, some want to guide change towards certain val-ues and/or religious ideals and others want change eitherto keep up with scientific and other forms of progress,which is bound to create new situations and conditions,or for reasons having to do with ethics and equity. Often,those who oppose change do so for selfish ends havingto do with their holding on to power. But, sometimes,when the pace of change is too fast, people fear it lest itobliterates their specific characteristics or causes them tolose their identity. Perhaps some like to leave decisionmaking to some authority, whether political, religious orposing as the embodiment of reason. Why they opt to doso is another intricate question that may lead to probingpsychological propensities, such as the desire to stay inthe role of the cared-for child or theobedient soldier. But this discussionis not within the present scope.

It has often been the case, of oldand currently, that rulers, especiallytotalitarian ones, tend to opposechange, for fear that it will lead totheir loss of power or their beingreplaced. Friedmann observes, inthis context, that modern dictator-ships resemble older absolutism intheir hostility to the separation ofpowers and in the concentration ofas many functions of governmentin as few hands as possible(Friedmann, p.7). He goes on tosay that authoritarian rule not only keeps the samefaces [and pictures?] in power, but it also seeks to con-trol education so as to inculcate in the rising genera-tions the attitudes and beliefs of the older ones. Thus,the people may continue to, meekly or even enthusias-tically, accept what the rulers, whose continuation intheir positions rests on their posing as guardians of tra-dition or revelation, want them to accept.

Women and Change (for better or worse)It is important to note, however, that it is not just anychange that is desirable, nor is change always one

towards justice and equity. Recently some changes infamily law were in the direction of giving women rightsequal to those of men, but others were in the oppositedirection. For example, what happened in Afghanistanduring the rule of the Taliban was change in the direc-tion of preventing girls from attending schools and for-bidding women from working outside the house. In theArab world, women yearn for equitable changes in fam-ily laws, but sometimes we fear changes that may set usfurther back. Thus, when in a lecture delivered in thecontext of seminars held in celebration of the centenni-al of The American University of Beirut (AUB), AhmadZaki Yamani claimed that shari'a = the Qur'an + what istrue and valid of the sunna + “consensus of the com-munity represented by its scholars and learned men,”some women present, including myself, feared that thelast item of the equation (in Yamani's Saudi society con-text) may become the source of more injustice towomen. Other jurists' recommendations to instigatechange, in that same conference, were conducive tomore hopeful projections towards the future. Amongthese last were the above-mentioned contribution ofInamullah Khan and most markedly the progressive andperspicuous recommendation of Musa Al-Sadr. For, Al-Sadr said, in the context of expounding God's elevationof human beings: “Islam sanctifies all the human needs.

It considers fulfilling such needs aform of worship and is displeasedby neglecting or ignoring them”(Malik, p.161). The implication ofthis saying that everyone (includingwomen) is required by God toattend to their needs and desiresand to work for self-fulfillment andnot just to serve family members,which is the traditional view, espe-cially of religious authorities, fell onus women as a breath of fresh airand as an exhilarating promise ofreligious reform.

At the level of actual changes infamily legislation, change towards

more equity in family laws is taking place in many coun-tries of the Arab and Islamic worlds, albeit at a far slow-er pace than it should. In Pakistan, a wife can now obtaina judicial divorce on the grounds of incompatibility. InTunisia, the proclamation of Burghibah that polygyny, aswell as slavery, were suited to the past times, but havegrown to be obsolete, useless and unacceptable, inspiredhis party of Neo-Dastur to introduce various progressivemodifications of family law. Law 44, known in Egypt asJihan's law, was a step forward, which gave a boosterand a horizon of hope to women's activism in seekingreform in family legislation.

Freud considers

women to be lacking

in conscience (weaker

super-ego) & in the

power to sublimate

Each Lebanese citizen

finds himself/herself

forced to be born, to get

married & to die

within a religious sect.

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A positive sign in the direction of procedural efficiencyand higher professionalism is the unification of civil andreligious courts, which took place in Egypt and Tunisia;for a qadi trained in modern law schools is more likely tohave responsive and progressive ideas and is more capa-ble of applying codified law than one researching somemedieval texts could ever be (see some opinions in RoundTable in this issue of Al-Raida; also Anderson, p.28).

In Lebanon In Lebanon, changes in the laws of inheritance (1959) fornon-Mohammedan sects and in custody 1991 (forCatholics) and 2003 (for Orthodox) in some Christiansects have taken place. Yet, other civil (e.g. nationality)and family laws (polygyny, custody and divorce, forMuslim sects) are lagging behind some other Arab andIslamic countries.

Resistance to change in family laws, in Lebanon, seems toderive from two basic reasons: - On the side of those in power: Self interest prevailingover public interest and even over the cause of the verysurvival of society and of the country.- On the side of the public: The lack of strong allegianceto, and belief in, Lebanon as a unified and integratedcountry, like any other.

Those Vested with PowerEntrusting the religious authoritiesof the various sects with family leg-islation is a practice that Lebanoninherited from the OttomanEmpire. But whereas the Ottomans,at the time, applied the millet sys-tem only to minority groups, andkept legislation for the mainstreamSunni Islam in the hands of thestate, in Lebanon all are minoritiesfalling under an outdated millet sys-tem. The millet system of theOttomans was a major reasonbehind the crumbling of theempire, as it led to outside interfer-ence and to rifts between the interests of the minoritiesand those of the mainstream Sunni civil society. Similarly,the sectarian system in Lebanon has hitherto led to sev-eral civil wars and continued interference from outside,and, more dangerously, to the interests and allegiances ofthe Lebanese people going in various, often conflicting,directions.

Turkey learnt from its mistakes and installed civil familylaws as far back as 1926, but Lebanon does not seem towant to learn this obvious lesson, either from others'experience or from its own!

It is impossible to claim that politicians and religiousauthorities in Lebanon fail to be cognizant of the greatrisk to the country inherent in such a division-engender-ing and progress-preventing practice as that of subjectingthe numerous sects to varied laws, kept under the juris-diction of sheikhs and priests. But it seems that oftenthose in charge are more concerned about their selfishaims of reaching power, or keeping it by the most imme-diately accessible means (emotional appeal to the massesand to self-serving religious authority) than about theirresponsibility for the viability, peace and unification of thecountry.

Moreover, the sectarian politics, that cause politicians tovie for the favor of constituencies divided along sectarianlines, cause them to uphold the existing laws of the sect,no matter what their beliefs are or what common senseclearly dictates. This is why almost everyone holding reli-gious or political power posts opposed the optional civillaw marriage proposed by President Hrawi in 1996. Evenleading women's NGOs, whose very raison d'être is fight-ing for women's rights, did not dare to openly supportHrawi's proposed law for fear of loss of popularity withpowerful leaders of the sects, religious as well as political.

It is well known that the masses are more easily swayed byemotional reasons having to do withtheir sense of identity and with theirinherited beliefs and traditions thanby ideas that seek progress and pre-empt civil wars and fragmentation.This is probably why, till now, thepredominant trend among politi-cians seems to have been the choiceof the easier access to popularity andvotes by each embracing his/herrespective sect rather than workingto educate, and truly lead, con-stituencies towards what gives thecountry stability and allows it tomove on, on the road of progress.

More understandably, the predomi-nant trend among religious authorities has been to encour-age adherence to the small religious and sectarian differ-ences, thus to enhancing their own power and to makingthemselves indispensable. There are, of course, exceptions.Those exceptions make one wonder why Abdallah Al-Alayliwas prevented from acceding to the position of mufti, andhis books disappeared from the bookstores. Why wasGregoire Haddad bypassed by church promotions; and whydid Musa Al-Sadr disappear? Was it simply coincidence thatremoved from the arena of religious power these three fig-ures distinguished by rationality, tolerance and openness tochange and to other religions and sects?

The General PublicEach Lebanese citizen finds himself/herself forced to beborn, to get married and to die within a religious sect.Moreover, most Lebanese citizens need the support ofthe leader (za'im) of their respective sects in order to geta job in the government or in most other sectors. Duringthe recent civil war many used such clientalism to freetheir imprisoned husbands or children or to liberate theiroccupied homes or to get their fair share of indemnity torestore their war-damaged property. Maybe some citizensdo not know better than to adhere to their sect andnothing beyond it, but even those who know better areforced to pretend to have a narrow-minded view of theirreligious belief and to adhere to every command of thereligious authority or party or za'im in order to get by inthis highly sectarian set up.

This situation, between political leaders who espouse thestance of religious prejudice and pose as defenders andchampions of their own religious sects, and citizens whoneed religious leaders or political representatives of theirsects in order to get by, is a chicken-egg situation. It ishard to tell how things will be made to change (sincechange they must, unless we are living outside history).

Will the leaders start to do their ethico-political duty? Orwill the people, or some from among them, start work-ing to raise the level of popular consciousness in order toliberate the country from sectarian division and liberatethe family from archaic judgments that create a lot ofsenseless suffering and humiliation?

If family laws derive originally from a practical aimtowards efficiency, the Lebanese situation of having 18different forms of family laws that often clash with civillaws and international ratified agreements is the acme ofimpracticality and inefficiency. And if laws in generalneed to be changed in order to accommodate changingcircumstances and to get cleansed from injustice andother breeches of the currently recognized moral stan-dards, the ones to change them are rarely other thanthose who suffer the injustice. This is because powerstrategy often interferes with legislation and with thetheoretical justification of legislation. Thus, family lawcannot be expected to become fair to women untilwomen take part in law-making and in the coining ofanthropological theories that support legislation, includ-ing religious jurisprudence and the interpretation or rein-terpretation of religious texts.

- Anderson, J.N.D. 1968, The Role of Personal Status in SocialDevelopment. (Roundtable on Law and Social and EconomicDevelopment), London, Center for Regional and InternationalDevelopment.- Archer, J. & Lloyd, B. 1982, Sex and Gender, England,Cambridge University Press.- Bentham, J. Rationale of Judicial Evidence, Collected Works, V& VII.- Friedmann, W. 1959, Law in a Changing Society, Berkeley andLos Angeles, University of California Press.Garai, J.E. & Scheinfeld, A. 1968, “Sex differences in mental andbehavioural traits,” Genetic Psychology Monographs, vol. 77,pp. 169-299.- Gray, J.A. 1971, “Sex differences in emotional behaviour inmammals including man: endocrine bases,” Acta Psychologica,vol. 33, pp. 29-46.- Haddad-Yakan, M. 2000, “Al-qanun al-'aili wal mu'ahadat al-dawliyah”, (in Arabic), in Al-Muwatiniyah fi Lubnan baynal Rajulwal Mar'a, Beirut, Dar Al-Jadeed.- Hamadeh, N. 1996, 'Islamic family law: the authoritative voiceof silence', in Feminism and Islam: Legal and LiteraryPerspectives, ed. May Yamani, University of London, IthacaPress. - Hart, H. L. A. 1953, Definition and Theory in Jurisprudence,Oxford, Clarendon Press.- Hocking, W.E. with the collaboration of Hocking, R.B. O'Reilly.1959, Types of Philosophy, New York, Charles Scribner's Sons(first published 1939).- Khan, I. 1972, “Islam in the Contemporary World”, in God and

Man in Contemporary Islamic Thought, ed. Charles Malik,Beirut, American University of Beirut Centennial Publications.- Mallat, C. 1993, The Renewal of Islamic Law: MuhammadBaqer as Sadr, Najaf and the Shi'i International, Cambridge,Cambridge University Press (Cambridge Middle East Library).- Oliphant, H. & Moon, P.T. (eds) 1923, Law and Justice, NewYork, Columbia University, The Academy of Political Science.- Rawls, J. 1971, A Theory of Justice, Cambridge,Massachusetts, The Belknap Press of Harvard.- Al-Sadr, M. 1972, “Islam and the Dignity of Man,” in God andMan in Contemporary Islamic Thought, ed. Charles Malik,Beirut, American University of Beirut Centennial Publications.- Said, E.W. 1978, Orientalism: Western Conceptions of theOrient, London, Routledge & Kegan Paul. - Smart, C. 1991, Feminism and the Power of Law, London andNew York, Routledge (first printed 1989).- Tullock, G. 1987, The Logic of the Law, Fairfax Virginia, GeorgeMason University Press.- Al-Turabi, H. 1984, Al-Mar'a bayna Ta'alim al-Deen waTaqaleed al-Mujtama' (in Arabic), Jeddah, Dar Al-Saudiyyah.- Willebrands, J.G.M. 1970, “The Ecumenical Movement andSecularization,” in God and Man in Contemporary ChristianThought, ed. Charles Malik, Beirut, American University ofBeirut Centennial Publications.- Yamani, A.Z. 1972. “Islamic Law and Contemporary Issues,” inGod and Man in Contemporary Islamic Thought, ed. CharlesMalik, Beirut, American University of Beirut CentennialPublications.

ReferencesSince the family is the

material of which

society is made, no

social change can

happen without

touching the family

or being touched by it

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Valentine M. Moghadam* and Farzaneh Roudi-Fahimi***Chief of the Gender Section at the Social and Human Sciences sector of the UNESCO office in Paris** Senior Policy Analyst at the Population Reference Bureau (PRB)


The issue of women's rights is gaining prominence inpolicy debates, as pressure for democracy in the MiddleEast and North Africa region (MENA) continues to grow.Area experts contend that a larger role for women in theeconomy and society is vital to the region's progress. Butwomen in MENA still face gender discrimination thatprevents them from reaching their potential, despitetheir impressive gains in education and health.

To varying degrees across MENA countries, discrimina-tion against women is built into the culture, governmentpolicies, and legal frameworks. In particular, the region'sfamily laws codify discrimination against women andgirls, placing them in a subordinate position to menwithin the family – a position then replicated in the econ-omy and society.

This brief highlights recent trends in women's activismand family law reform in the MENA region, with a spot-light on Morocco, which recently adopted an entirelynew family law. The new Moroccan law is consistentwith the spirit of Islam, yet based on equal rights forboth men and women. That a feminist campaign suc-ceeded in altering family law in a MENA country wherelaws are based on the shari’a, or Islamic law, shows how

effective coalitions can be built in MENA countries bylinking social and economic development to women'srights.

The Costs of DiscriminationAcademic and policy-oriented studies have identifiedchronic gender inequalities in the MENA region as majorobstacles to progress in economic and human develop-ment. A decade ago, researchers argued that the lowparticipation of women in the labor force hindered botheconomic development and women's participation insociety. A more recent study found that women's under-representation in the workforce explains why MENAcountries lack the capacity to meet the challenges ofglobalization.1

The 2002 Arab Human Development Report, the first ina landmark series prepared entirely by Arab scholars,concluded that the region suffered from fundamentaldeficits in three areas: knowledge, political rights, andwomen's rights. The 2004 Arab Human DevelopmentReport warns that laws and practices doubly excludewomen. While governments have made some efforts toraise women's status, success remains limited, accordingto the report.2

A recent report by the World Economic Forum arguedthat countries that do not fully take advantage ofone-half the talent in their populations are misallocat-ing human resources. The report ranked Egypt at thebottom (58th) and Jordan 55th, based on an analysisof gender gaps in economic and political participa-tion, educational attainment, and health and well-being in 58 countries around the world. Egypt andJordan were the only MENA countries included in thestudy.3

A World Bank report on gender and development in theMiddle East points out that not only are young womenin MENA healthier and more educated than their moth-ers, but the generational improvement has been greaterthan that in any other major world region. Still, womenin MENA face greater obstacles finding jobs and playingactive public roles in their society than women else-where.4

Some scholars link women's relatively low levels ofemployment to the oil economy and relatively highwages, while others have emphasized state policies, cul-ture, and social institutions such as the region's familylaws. As noted in the UN report on the progress of Arabwomen 2004, many women have no option but toaccept patriarchal family structures that limit their abili-ty to participate in both the economic and politicalrealms.5

The Global Agenda for Empowering WomenGender discrimination in the MENA region also preventswomen from attaining the standards set by the globalwomen's rights agenda (see Box 1). The ‘empowermentof women’ and the realization of women's humanrights were centerpieces of the Beijing Platform forAction, the official document adopted at the UnitedNations Fourth World Conference on Women in 1995.

The 1995 conference spawned much research anddebate on women's empowerment: According to oneperspective, women's empowerment is a process thatchallenges and transforms the patriarchal beliefs andinstitutions that reinforce and perpetuate women'sinequality.6 Another study sees empowerment as abroader process aimed at achieving legal rights andparticipation in key social, economic, political, and cul-tural domains.7 Thus, women's empowerment is notconfined to gains in access to education and employ-ment. It may also encompass progress in political par-ticipation, cultural expression, and equitable legalrights.

In 2000, gender equality and women's empowermentwere adopted by the United Nations as the third of

eight Millennium Development Goals (MDGs) aimed atcombating poverty and enhancing human develop-ment. One measure of progress for this goal is the pro-portion of seats in national parliaments held by women.The MENA region lags well behind other regions by thismeasure, despite some progress.8

Gender discrimination is hardly specific to the MiddleEast; it can be found across the globe. But the gapbetween men's and women's rights is most visible inMENA countries, where there is greater resistance toclosing that gap. The resistance stems in large part fromthe distinctive way that MENA countries have institu-tionalized gender discrimination, subjecting women tolegal forms of discrimination in addition to patriarchalattitudes and practices.

Family Laws in Need of ReformDiscrimination against women is built into the region'sfamily laws, also known as personal status laws, and inthe penal codes of some of the region's countries. Familylaws govern marriage, divorce, maintenance, paternity,custody of children, and inheritance. With the exceptionof Turkey and Tunisia, where family laws are drawn frommostly secular sources, family laws in MENA countries aremainly or solely based on the shari’a. The traditionalinterpretations of the sharia differentiate between menand women in the allocation of rights and responsibili-ties and typically place women in the position of minorand dependent.9

Besides patriarchal attitudes, codified restrictions limitwomen's mobility and privileges granted to male kin,notably ‘guardianship’ over women. Men's guardian-ship over women in the family is then replicated inmale authority over women in all areas of decisionmaking in the public sphere. Women's interactionswith the state and society are thus often determinedand mediated through their husbands, fathers, broth-ers, or other male relatives.

A woman's position as a dependent of her maleguardian is used to justify her second-class citizenship.Traditional interpretations of Muslim family law requirea woman to obtain the permission from her father, hus-band, or other male guardian not only to marry, but alsoto seek employment, a business, travel, or open a bankaccount for a child. In Iran and Jordan, for example, ahusband has the legal right to forbid his wife or unmar-ried daughter to seek employment or stay in a job.While wives who are educated and politically awaremay stipulate in their marriage contracts that they beallowed to work, many wives make no such stipula-tions. And if the issue is contested, courts often sidewith the husband.10

Reforming Family Laws to Promote Progress in the Middle East andNorth Africa

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must be paid for what are considered services renderedto her husband.

Such practices and norms may have been progressive inthe medieval era, but today they symbolize women'seconomic dependence on their male relatives andinequality in economic and legal affairs. In makingwomen dependents of men and minors within the fam-ily, the traditional interpretations of the shari’a thatform the basis of family laws have strengthened themale breadwinner/female homemaker ideal.

For example, the Jordanian Civil Status Law requiresthat all official transactions be recorded in a daftar, or‘family book.’ Nearly all contact with the government

must be recorded in the daftar, including voting, regis-tering children for school or university, acquiring civilservice jobs, or receiving social services such as foodassistance. A woman remains in her father's familybook until she is married. Then she is transferred intoher husband's family book. Recent legislation has mod-ified the law in Jordan to allow women to start theirown daftar if they are divorced or widowed.

Guardianship, a man's exclusive right to polygamy, uni-lateral divorce, and a woman's smaller share of inheri-tance are all inscribed in the family laws. For many inthe region, these practices do not conform to twenty-first century sensibilities and realities. But others consid-er the family laws divinely inspired and therefore fierce-ly contest any changes.

Reform EffortsInspired by international human rights conventions,MENA women activists and their supporters are nowalso looking to the Qur'an and the Sunnah, the sayingsand deeds of the Prophet Mohammad and hisCompanions, in order to develop new interpretations ofthe family law. These activists believe that Islam is atheart egalitarian, and that parts of the shari’a codifiedin family laws were interpretations by men whose viewswere rooted in the patriarchal traditions of the time.

Throughout the region, women's organizations haveplaced priority on changing personal status laws togrant women more rights and equality within the fami-ly. They also have campaigned for the criminalization ofdomestic violence (including ’honor crimes’), equality ofnationality rights, and greater opportunities for politicaland economic participation. Their research, advocacy,and lobbying efforts are directed at their governments,clergy, the media, and international organizations. Andtheir arguments are based on principles related tohuman rights, international conventions, the globalwomen's rights agenda, and a kind of ‘Islamic feminist’rereading of the religious sources. They also haveappealed to governments to make their domestic poli-cies conform to international conventions, such as theUnited Nations' Convention on the Elimination of AllForms of Discrimination Against Women (CEDAW - seeBox 2) and the Beijing Platform for Action.

The reform of family law is therefore important for sev-eral reasons:• It is a central element in the modernization of religiousinstitutions and norms in Muslim societies.• It establishes women's human rights and their equali-ty within the family and vis-à-vis male kin.• It has implications for women's wider citizenship rightsand their social participation, including economic rights.


Traditional Muslim family law seeks to treat husbandsand wives equitably. For example, because the law givesmen the right to unilateral divorce, the groom must paythe bride a sum of money, or mahr, that both familiesagree to. While part or all of it can be paid at the timeof the marriage, the mahr is generally deferred and paidonly in the event of divorce. A husband is also legallyand culturally obligated to provide for his wife and chil-dren. Indeed, a husband's failure to support his wife isgrounds for divorce. In return for nafaqa, or the hus-band's economic support, the wife has to obey her hus-band (tamkin). A wife is under no obligation to shareany wealth or earnings with her husband or contributeto the family economy. She is not even required to per-form household labor or childcare. In principle, she

Box 1 Where MENA Countries Stand on Women’s Rights

Box 2 An International Bill of Rights for Women

* The study covers development up through the end of 2003. It does not take into account the new developments in Moroccan family law reforms.** Refers to the Palestinian population living in Gaza and the West Bank (including East Jerusalem).Source: Freedom House, “Women’s Rights in the Middle East and North Africa: Citizenship and Justice” (www.freedomhouse.org, accessed September 23, 2005).

In a recent review of women’s rights inArab countries of the MENA region,TunIsia ranked at the top, followed byMorocco. The findings are the result ofan intensive 20-month-long researchprocess by a team of 40 leading schol-ars, analysts, and women’s rightsexperts, including those from theregion. After a committee of specialistson the Middle East, human rights, andIslamic laws and norms developed themethods for the study, FreedomHouse, a non-profit organization thatpromotes democracy and freedom,

commissioned the country studies in2003.

The researchers assessed how womenfared in each country in terms of nondis-crimination and access to justice; auton-omy, security and freedom of the per-son; economic rights and equal oppor-tunity; political rights and civic voice;and social and cultural rights. These indi-cators of women’s citizenship and rightsare consistent with the Convention onthe Elimination of all Forms ofDiscrimination Against Women

(CEDAW) and the Beijing Platform forAction, as well as with the UniversalDeclaration of Human Rights and otherinternational human rights conventions.

The study produced individual countryreports and a summary report providinga comparative review of women’s rightsacross the region (see table). The coun-tries were rated on a scale of 1 to 5,with 1 signifying the weakest perfor-mance and 5 the strongest. The studydoes not provide a comparison withcountries outside the region.

Autonomysecurity, Economic rights

Country Nondiscrimination and freedom and equal Political rights Social andand access to Justice of the person opportunity and civic voice cultural rights

Algeria 3.0 2.4 2.8 3.0 2.9Bahrain 2.2 2.3 2.9 2.1 2.8Egypt 3.0 2.8 2.8 2.7 2.4Iraq 2.7 2.6 2.8 2.2 2.1Jordan 2.4 2.4 2.8 2.8 2.5Kuwait 1.9 2.2 2.9 1.4 2.8Lebanon 2.8 2.9 2.8 2.9 2.9Libya 2.3 2.1 2.3 1.2 1.8Morocco* 3.2 3.2 3.1 3.0 3.0Oman 2.0 2.1 2.7 1.2 2.1Palestine** 2.6 2.7 2.8 2.6 2.9Qatar 2.0 2.1 2.8 1.7 2.5Saudi Arabia 1.2 1.1 1.4 1.0 1.6Syria 2.7 2.2 2.8 2.2 2.3Tunisia 3.6 3.4 3.1 2.8 3.3UAE 1.7 2.1 2.8 1.2 2.3Yemen 2.4 2.3 2.3 2.6 2.1

The United Nations' Convention on theElimination of All Forms ofDiscrimination Against Women(CEDAW), known as the internationalbill of rights for women, is the corner-stone of international efforts toadvance the status of women. CEDAWestablishes a framework for nationalactions that promote equal rights formen and women. The convention isbased on international human rightsagreements.

CEDAW was adopted by the UN GeneralAssembly in 1979 and became a bindingtreaty in 1981. Countries that havesigned it commit to undertake a series ofmeasures to end all forms of discrimina-tion against women, including:• Incorporating the principle of equalityof men and women in their legal system,abolishing all discriminatory laws, andadopting laws prohibiting discriminationagainst women;• Establishing tribunals and other publicinstitutions to ensure women are effectively

protected against discrimination; and• Ensuring the elimination of all acts ofdiscrimination against women by per-sons, organizations, or enterprises.

Aside from civil rights issues, the con-vention also devotes major attention towomen's reproductive rights. The pre-amble sets the tone by stating that ‘therole of women in procreation should notbe a basis for discrimination.’

As of March 2005, about 90 percent ofthe UN member states had joined thetreaty. In 1981, Egypt was the firstMENA country to do so and the UnitedArab Emirates became the last to join in2004 (see table). All MENA countriesjoining the treaty, however, had reserva-tions to some important articles. As aresult, they refused to recognize theirduty to implement them, thereby under-mining the power and universal validityof the Convention. Most of the reserva-tions pertain to articles that deal withfamily laws, particularly those related to

women's rights within the family andwomen's nationality rights. Saudi Arabiasigned with a blanket statement that itwould not observe any article that intheir view contradicted the shari’a.

REFERENCE: United Nations HighCommissioner on Human Rights, Declarationon the Elimination of Discrimination AgainstWomen, accessed online at www.unhchr.ch,on July 15, 2004.

Year Joined CEDAW

Algeria 1996Bahrain 2002Egypt 1981Iraq 1986Jordan 1992Lebanon 1997Libya 1989Morocco 1993Saudi Arabia 2000Syria 2003Tunisia 1985United Arab Emirates 2004Yemen 1984

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• It brings the MENA region in line with internationalnorms and codes enshrined in such conventions as theUniversal Declaration on Human Rights, the CEDAW, theInternational Covenant on Civil and Political Rights, theInternational Covenant on Economic, Social, and CulturalRights, and the Beijing Declaration and Platform forAction.

The numbers and types of women's organizations thatsupport these changes are increasing. At least seventypes of women's groups have emerged in MENA coun-tries. They include service or charitable organizations,official or state-affiliated women's organizations, profes-sional associations, women's studies centers, women'srights or feminist organizations, nongovernmental orga-nizations working on women's and development issues,and worker-based or grassroots women's groups.11

A Major Step Forward in MoroccoThe Moroccan mudawana, or family code, was drafted in1957, based mainly on the Maliki School of Islamicjurisprudence. Despite major resistance, a few amend-ments were enacted in 1993 – demonstrating that themudawana was not fixed and could be changed. Theamendments limited the guardian's control and empha-sized that a woman should give her consent and sign hermarriage contract; allowed women over age 21 who didnot have a father to contract their own marriage withouta guardian; and stipulated that before taking a secondwife, a husband needs to inform his first wife. The moth-er was given the right to legally represent her children iftheir father died, but she still could not dispose of thechildren's property.

However, the mudawana continued to treat women assubordinate to men: There were double standards inchild custody and divorce, for example. And withsocial change in Morocco, including women's risingemployment, the mudawana increasingly became out-dated. What is more, violence and harassment againstwomen seemed to be increasing and needed to beaddressed.

As Moroccan civil society became increasingly organizedand more women's associations were formed, a move-ment began to raise awareness about women's rights.The appointment in 1998 of a progressive prime minis-ter and a minister of women and family affairs who wascommitted to women's rights led to the formulation ofthe National Action Plan for the Integration of Womenin Development, which called for reforming themudawana. Sustained hostility from religious funda-mentalist groups put the plan on the back burner, butthe women's organizations and their allies in govern-ment pressed ahead. In the 2002 elections, 35 womenentered the Moroccan parliament, assisted by a newquota system adopted by the political parties.

Meanwhile, King Mohammad VI, who was personallycommitted to women's rights, appointed a royal com-mission to advise him on the family law. Women's rightsorganizations organized a series of workshops, round-tables, and discussion groups to analyze the details ofthe draft legislation, renew their efforts to educate thepublic, and lobby the Parliament for what they arguedwould be reforms to promote the well-being of women,children, and the family.

In October 2003, in his capacity as Commander of theFaithful, the King announced a new family code,which he asserted was consistent with the spirit of theshari’a, and then sent it to the parliament. This code,which parliament passed in January 2004, has beenheralded as not only a giant leap in women's rights,but also a huge advance in children's rights (see Box3).12

The Moroccan case is a striking example of howwomen's rights advocates can build coalitions to gen-erate social dialogue, affect key policy debates, helpreform laws, and change public policy. Morocco nowjoins Tunisia and Turkey as the only countries in theMENA region where the husband and wife shareresponsibility for the family.13

Whether this new law makes a real difference dependson how far and how well it can be translated intopractice. Will average women become aware of theirnew rights? And will they be sufficiently empoweredto take action if the need arises? Is the country's judi-ciary system ready for the change? Many challengesremain, not least of which is religious fundamentalists'resistance to implementing the new family code.

Both the state and civil society must now actively raiseawareness about the new law and women's newrights through education, media campaigns, and otheractivities, which could take years. Efforts are alreadybeginning to address some of these challenges andsupport the reformed family code in Morocco: Newfamily courts have been established, training for thejudiciary has been improved, and women can beappointed as family judges.

Morocco's case is remarkable, because a feministcampaign succeeded in breaking the long tabooagainst touching the mudawana – and this in a veryconservative culture. The success of women's rightsorganizations derived partly from their strategic useof Islamic sources to defend their case for a more con-temporary interpretation of shari’a to frame the newfamily law. Arguments about the need to fully involvewomen in all aspects of public life in order to furthersocioeconomic development also helped advancetheir cause.

The Moroccan experience shows that change is possi-ble. Through collective action involving civil societyand progressive government, even the mostentrenched laws can be revised to improve the lives ofwomen and to advance society as a whole.

In Morocco, the long campaign to improve women's

status has been an entirely domestic matter. WhileMoroccan women's rights groups clearly benefited froma global environment conducive to women's rights,their decade-long struggle was carried out and wonthrough their own efforts. The Moroccan success storycertainly can be replicated in other countries, thoughnot in exactly the same way. Moroccan women had theadvantage of a sympathetic and supportive politicalleadership, a factor not present in all the countries inthe region.

Other Countries Take Smaller StepsWhile the pressure to reform family law has been feltacross the region, other countries' efforts to remove dis-criminatory laws against women have been largelypiecemeal. In 2000, after much national debate, theEgyptian parliament passed a new law that changedprocedures associated with the personal status law. Thelaw – known as khul' – gives a woman the equal rightto seek a divorce without the consent of her spouse, butonly if she gives up some of her financial rights.Opposition groups contested the legality of the khul'claiming that it violated the shari’a, but in 2002 theSupreme Constitutional Court issued an importantjudgment confirming that khul' is constitutional.14

Forfeiting financial rights in exchange for the right toseek divorce can be especially hard on low-incomewomen or those without any employment experience.For that reason, some women's rights advocates remaincritical of the new law. However, supporters of khul' seethe new procedure as a rational interpretation of Islam.They argue that it provides an opening for thosewomen whose divorce cases have dragged on for yearsin the court system or whose suits could be denied.

Because they are less sensitive than issues of divorce,child custody, or inheritance, laws related to a child'sright to inherit his or her mothers' nationality are gen-erally among the first family laws that women and childadvocates seek to reform. In 2004, Egypt and Algeriagave women the right to pass on their citizenship totheir children regardless of the father's nationality.These changes related to nationality rights are part of aregional campaign to allow mothers to pass on their cit-izenship to their children. With the backing of not onlylocal advocacy groups, but also non-governmentalorganizations and government officials, other countries,such as Bahrain, Jordan, Lebanon, Palestine, andYemen, are participating in the campaign, makingreforms more likely in the near future.15

ConclusionSocieties pay a price for discriminating against women, andsocial and economic development is best served by the

Box 3 Features of the New Family Law in Morocco

The campaign to reform the Moroccanfamily code, or mudawana, has beenthe work of more than a decade. Thereforms reflect a new path between tra-ditionalists and women's rights activists.The main features of the new Moroccanfamily law are:

• Husband and wife share joint respon-sibility for the family.• The wife is no longer legally obliged toobey her husband.• The adult woman is entitled to self-guardianship and may exercise it freelyand independently.• The right to divorce is a prerogative ofboth men and women, exercised underjudicial supervision.

• The principle of divorce by mutualconsent is established.• The woman has the right to impose acondition in the marriage contractrequiring that her husband refrain fromtaking other wives.• If there is no pre-established conditionin their marriage contract, the first wifemust be informed of her husband'sintention to remarry, the second wifemust be informed that her husband-to-be is already married, and the first wifecan ask for divorce due to harm suf-fered.• Polygamy is subject to the judge'sauthorization and to stringent legalconditions (no objection by the firstwife) that make the practice nearly

impossible.• In the case of divorce, the woman isgiven the possibility of retaining custodyof her child even upon remarrying ormoving out of the area where her ex-husband lives.• The child's right to acknowledgmentof paternity is protected in cases wherethe marriage has not been officially reg-istered.• For both men and women, the mini-mum legal age of marriage is 18 years.

REFERENCE: Women's Learning Partnership,“Morocco Adopts Landmark Family LawSupporting Women's Equality,” accessedonline at www.learningpartnership.org, onJuly 13, 2004.

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References

Acknowledgments

1. Nabil Khoury and Valentine M. Moghadam, eds., Womenand Development in the Arab Region (London: Zed Books,1995); and Massoud Karshenas, “Structural Obstacles toEconomic Adjustment in the MENA Region: The InternationalTrade Aspects,” in The State and Global Change: The PoliticalEconomy of Transition in the Middle East andNorth Africa, ed. Hassan Hakimian and Ziba Moshaver (Surrey,England: Curzon Press, 2001): 59-80.2. United Nations Development Programme (UNDP) RegionalBureau for Arab States, Arab Human Development Report:Towards Freedom in the Arab World (New York: UNDP, 2004).3. World Economic Forum, “Interview – WomenEmpowerment: Measuring the Global Gender Gap,” accessedonline at www.weforum.org, on Aug. 16, 2005.4. World Bank, Gender and Development in the Middle Eastand North Africa (MENA): Women in the Public Sphere(Washington, DC: World Bank, 2004): xii and xiii.5. United Nations Development Fund for Women (UNIFEM),Arab States Regional Office, Progress of Arab Women 2004(Amman, Jordan: UNIFEM, 2004): 3.6. See Naila Kabeer, “The Conditions and Consequences ofChoice: Reflections on the Measurement of Women'sEmpowerment,” Discussion Paper No. 108 (Geneva: UnitedNations Research Institute for Social Development, 1999); andNaila Kabeer, “Resources, Agency, Achievements: Reflectionson the Measurement of Women's Empowerment,” inDiscussing Women's Empowerment-Theory and Practice, ed.Birgitta Sevefjord, et al., accessed online at www.sida.se, onNov. 12, 2004.7. Valentine M. Moghadam and Lucie Senftova, “MeasuringWomen's Empowerment: Women's Participation and Rights inCivil, Political, Economic, Social, and Cultural Domains,” inInternational Social Science Journal 57, no. 184 (2005): 389-412.

8. United Nations Statistics Division, Millennium DevelopmentIndicators Database, accessed online at http://millenniumindi-cators.un.org, on Aug. 19, 2005.9. See Abdullahi An-Naim, Islamic Family Law in a ChangingWorld (London: Zed Books, 2002). In Israel, family law is basedon the Jewish Halacha. In Lebanon, there are 15 personal sta-tus codes for the 18 recognized ethnic-religious communities,including Christian ones. In Muslim-dominant countries, non-Muslim communities are exempt from Islamic family law andfamily matters are governed by religious codes supervised bychurches. Thus, Catholics cannot divorce, because theirchurches do not allow it.10. Amira al-Azhary Sonbol, Women of Jordan: Islam, Labor,and the Law. (Syracuse, NY: Syracuse University Press, 2003):89-99.11. Valentine M. Moghadam, Modernizing Women: Genderand Social Change in the Middle East (Boulder, CO: LynneRienner Publishers, 2003).12. Women's Learning Partnership, “Morocco AdoptsLandmark Family Law Supporting Women's Equality,”accessed online at www.learningpartnership.org, on July 13,2004.13. Women's Learning Partnership, Morocco AdoptsLandmark Family Law; and Fatima Sadiqi and Moha Ennaji,“Feminist Activism and the Family Law: The GradualFeminization of the Public Sphere in Morocco,” Journal ofMiddle East Women's Studies 2, no. 2 (forthcoming 2006).14. Mona Zulficar, “New Signs of Progress for Women inEgypt,” Women Living Under Muslim Laws (Feb. 12, 2004),accessed online at www.wluml.org, on Jan. 9, 2006.15. Rebecca Torr, “‘Nationality for Children’ Campaign isStepped Up,” Women Living Under Muslim Laws (April 11,2005), accessed online at www.wluml.org, on Jan. 10, 2006.

This report was prepared by Valentine Moghadam, chief of the gender section at the Social and Human Sciences sector of theUNESCO office in Paris, and Farzaneh Roudi-Fahimi, senior policy analyst at the Population Reference Bureau (PRB), with assistancefrom PRB staff. Thanks are due to the following people who reviewed drafts of this report: Carla Maklouf-Obermeyer of the WorldHealth Organization in Geneva, Simel Esim of the International Labor Organization's regional office in Beirut, Nadereh Chamlou ofthe World Bank in Washington, D.C., Fatima Sadiqi of the University of Fez in Morocco, and Lori Ashford and Nancy Yinger of PRB.

PRB's Middle East and North Africa ProgramThe goal of the Population Reference Bureau's Middle East and North Africa (MENA) Program is to respond to regional needs fortimely and objective information and analysis on population, socioeconomic, and reproductive health issues. The program raisesawareness of these issues among decisionmakers in the region and in the international community in hopes of influencing policiesand improving the lives of people living in the MENA region.MENA program activities include: producing and disseminating both print and electronic publications on important population, repro-ductive health, environment, and development topics (many publications are translated into Arabic); working with journalists in theMENA region to enhance their knowledge and coverage of population and development issues; and working with researchers in theMENA region to improve their skills in communicating their research findings to policymakers and the media.The Population Reference Bureau is the leader in providing timely and objective information on U.S. and international populationtrends and their implications.

MENA Policy Briefs- Reforming Family Laws to Promote Progress in the Middle East and North Africa (December 2005)- Reproductive Health and Development Goals: The Middle East and North Africa (December 2005)- Marriage in the Arab World (September 2005)- Islam and Family Planning (August 2004)- Progress Toward the Millennium Development Goals in the Middle East and North Africa (March 2004)- Making Motherhood Safer in Egypt (March 2004)- Empowering Women, Developing Society: Female Education in the Middle East and North Africa (October 2003)- Women's Reproductive Health in the Middle East and North Africa (February 2003)- Finding the Balance: Water Scarcity and Population Demand in the Middle East and North Africa (July 2002)- Iran's Family Planning Program: Responding to a Nation's Needs (June 2002)- Population Trends and Challenges in the Middle East and North Africa (October 2001)

These policy briefs are available in both English and Arabic, and can be ordered free of charge by audiences in the MENA region by contacting thePopulation Reference Bureau via e-mail ([email protected]) or at the address below. Both versions (except for the Arabic version of Population Trendsand Challenges) are also available on PRB's website (www.prb.org).

This work has been funded by the Ford Foundation office in Cairo.© December 2005 Population Reference Bureau.

active participation of both sexes. To reach that goal inMENA, governments need to reform a number of policiesand laws, including the family laws. Women's rights advo-cates are calling for the reform of family laws because thelaws give men privileges, while discriminating againstwomen. The laws are anachronistic at a time whenwomen's roles are expanding in the family and in society.Because Muslim family law is said to derive from the sharia,any reform process requires strong political support, sensi-tivity to religious sentiments, and assurances to the public

Forthcoming:

Female Criminality

in the Arab World

that the changes are in accord with family values andIslamic norms of justice. This is the strategy that was adopt-ed in Morocco's successful reform of its mudawana – a pio-neering move for an Islamic country that could sparkchange throughout the region and beyond.

Reprinted with permission from the Population ReferenceBrief and the authors. The paper can be accessed athttp://www.prb.org/pdf06/ReformingFamilyLaws_MENA.pdf

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Ibrahim Najjar: It is important to define what we meanby family laws. They are laws that govern marriage,alimony, divorce, custody, filiation (bounoue) and, inheri-tance, for Muslims. Religious laws differ betweenChristians and Muslims. It is very difficult to change ormodernize (noutawir) Islamic shari'a and jurisprudencebecause the laws that govern the family are mostly relat-ed to faith. Islamic shari'a originates from a sacred textthat is supposed to govern all time. Shari'a law aims atregulating religion as well as all aspects of social andpolitical life.

Because of their ‘sacred’ origins very many family lawsare immutable and no matter how hard legislators try toreform them, they can't change them much. The Jaafarischool of law, however, is more liberal than the Hanafione because the former didn't “close the door of exege-sis (ijtihad) or interpretation.”1 Jaafari jurisprudence issubject to reform where new fatwas2 or religious edictsare constantly introduced. If it is possible to amend shar-i'a law, the problem remains “who has the right toreform these laws?” Unfortunately, there is no uniformmethod to determine who can issue a valid fatwa andwho cannot, and upon whom such fatwas are binding. Isa fatwa from Al-Azhar binding?

Among Christians one can modernize theology and reli-gious ordinance. Yet, who is allowed to do that? TheVatican can do it only for Catholics. However, this provedvery tricky in Lebanon. When the Vatican, in 1991, issuedthe rules and regulations that apply to Catholics, theCatholics in Lebanon started applying these laws. Yet, thegovernment had no notion that the laws were amendedand they were being applied!

In 1951 the Lebanese government asked the differentsects to submit a draft law regarding personal statuslaws. All the sects complied and submitted drafts. But,the proposals contained very many inconsistencies andgaps. This impelled the Lebanese government to disre-gard them. Also, in 1993, the Orthodox Church present-ed a new personal status law. This, also was so full oferrors and discrepancies that the courts were – and stillare – unable to apply it. For instance, they amended thecustody law by raising the custody age to 14 years forboth sexes. However, applying the newly amended lawwas problematic because of certain ambiguities: Is thelaw relevant to the present only or does it have a retroac-tive effect? Does it apply to divorce cases settled prior tothe amendment of the law? Unfortunately, there are verymany problems that were not addressed when the lawswere amended.

NH: From the general trend of things, one suspects thatwhat impeded implementation of this modernized law

Personal Status Laws were the subject of a round tablediscussion held at the Institute for Women's Studies inthe Arab World in January 2005. The participants wereDr. Bechir Bilani, Attorney at law, Mohammad Matar,Attorney at law, Ahmad El-Zein, Attorney at law, JudgeArlette Juraysati, and Dr. Ibrahim Najjar. The moderatorwas Dr. Najla Hamadeh. Also present were Dr. DimaDabbous-Sensenig, Acting Director of the Institute forWomen's Studies in the Arab World, and Myriam Sfeir,Assistant Editor of Al-Raida.

Questions:1. Bearing in mind the rigidity of religious laws and thedomination of government or official authority over civillegislation, which of the two types of law would yieldfairer family laws? Which of the two types is in the inter-est of the general public?2. In a society where the authority of the state and itsinstitutions is weak in comparison with that of religiousfigures, is it better to keep the implementation of laws inthe hands of religious courts rather than in those of civilcourts? 3. Which courts are more susceptible to corruption andmore compliant with the dominant forces, the religiousor the civil?

4. What are the implications of the existence of differentpersonal status codes on citizenship and national unity? 5. How does the discrimination between men and womenin legislation affect each of men, women and children?

Answers:Arlete Juraysati: The answer to your questions is evi-dent: We need to impose a civil law in Lebanon. I believeit is the only solution. Family laws are very biased. I havecome across very many cases of abuse and discriminationagainst women during the past 30 years. Being a judge,people trusted and confided in me, and with time I real-ized that discrimination against women is not a classissue, it is as widespread among the rich as among thepoor. Based on my experience, I can assure you that alldiscriminatory laws against women will disappear uponimposing a civil law. Civil laws are egalitarian in nature.They equate between men and women. Let’s face it,Muslim as well as Christian religious personal statuscodes regard women as the property of the husband andtreat them as minors. For instance, if a woman's husbandpasses away, her in-laws and brother-in-law are consid-ered legal guardians over her children. Not only are per-sonal status codes very unfair, but also religious courts arevery corrupt. I am not saying that civil courts are perfect

Myriam SfeirAssistant Editor, Al-Raida

Round Table Personal Status Laws

or ideal, but they are comparatively more knowledgeablein justice procedures and less biased.

Mohammad Matar: In answer to the first question, Ibelieve civil courts rather than religious courts ought tooversee family matters for several reasons. First of all, if weare eager to bring about a legitimate and correct civil soci-ety in Lebanon, and if we are to abide by the LebaneseConstitution which categorizes Lebanon as a civil ratherthan a religious country, then we must relegate all mattersrelated to family law to civil courts. In this context, it isimportant to observe that the revised Constitution of 1990declares Lebanon a republic with a multiparty system basedon multiple religious groups. Moreover, the Taif Accord stip-ulates that all sects in Lebanon ought to respect each other.However, the taif and other Lebanese legislation failed toprioritize personal and individual freedom over religiouslaws. I am a firm believer in personal freedom and choice.Hence, given that Lebanon is a civil country, it must adopta positive law rather than a religious one. There is no harmin having religious laws and consulting Muslim andChristian sources of legislation. However, laws ought to becivil and lawyers should be trained in civil matters, though Ibelieve they have to be knowledgeable in religious laws aswell. The advantage of having positive laws is that civil lawscan be amended, whereas religious laws are immutable andunchangeable. The inheritance laws for Muslims are a goodexample of the impracticality of applying fixed laws tochanging social dynamics. In general, codes of personal sta-tus rarely change despite changes in circumstances andconditions. Yet, here I would like to give an example thatproves otherwise. During the Ottoman Empire reformswere suggested and there were amendments in the lawthat governs Amiri lands (crown lands). The law was modi-fied so that women could inherit equally to men.

If there is one society in Lebanon then there should beone unified law that governs family matters. For example,custody issues are general societal concerns that shouldbe unified and not associated with religion. As it is, thelaws that govern custody matters differ among the vari-ous religious sects in Lebanon.

AJ: This limits individual liberty which is recognized andsanctioned by the Lebanese Constitution. Why am Iobliged to abide by religious laws? Why should the per-sonal status laws formulated by my sect govern me?Where is my freedom of thought? Why are my humanrights curtailed? Why should I be stigmatized or labeledsince birth as belonging to a specific sect? Why am Iobliged to lead my life in accordance with the rulings ofmy sect? Let us face it, religion-based personal statuslaws are the laws that mostly emphasize inequalitiesbetween men and women. Hence, alternative lawsshould be drafted.

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was more its being favorable to women than its being‘ambiguous.’

IN: I believe that Islamic shari'a is immaculate in its drafting.There is excellence in drafting laws within Islam to an extentthat Christians, for the past four decades, adopted andapplied Islamic shari'a in matters related to inheritance.

NH: They did because it favored men.

IN: We need to recognize that laws are not promulgatedfrom nil. They are the result of historical development.Prior to the advent of Islam, female infanticide was thenorm. Hence, the teachings of Islam were very revolu-tionary. Islam introduced guidelines that regulated one'swhole life. Yet, with the passage of time these rules andregulations were no longer capable of accommodatingnew contexts and changing needs and conditions.

Ahmad El-Zein: One should keep in mind and adopt the‘general principle rule’ or al-qa'ida el kulliya.3

IN: I would propose creating a new sect, i.e. 'the non-reli-gious sect' that is governed by civil laws. It is a secularsect that is governed by implications of previous solutionsto the conflicts arising from ambiguous laws. Hence, thesame rules that apply to the different sects in Lebanonapply to it.

We live this schizophrenia in laws daily in Lebanon andthat is why I am raising this issue. Before we say let's seeif civil laws are better than religious laws, we have to seewhere we can modernize gradually in order to cope withchanging trends and new situations.

Let me give you an example: I recently handled a divorcecase where a husband divorced his wife without herknowledge. The wife had no notion of the divorce andwas not informed of the ruling (hikm) in order to be ableto appeal. This divorce case was considered as a regulardivorce although she was divorced in absentia. Thedivorce was finalized in a single session, and within onehour the registry bureau (qalam) gave the husband acopy of the ruling permitting enforcement (sourat salihatlil tanfeez). The husband took the paper to the personalstatus registries and registered the divorce. He then tookthe kids and refused to let the mother see them. Eventhough she appealed, my client – who is an Americancitizen married to a Lebanese Muslim – was not allowedto see her children. The Muslim religious courts claimedthat they have no authority to allow her to see her chil-dren and the civil courts stated that they are unfit tosupervise the case. Between the two, my client is still suf-fering. Such problems can be avoided when a civil law isadopted.

AZ: The issues being discussed are very delicate giventhat they are related to personal beliefs and religiouscreeds. Article 9 of the Lebanese Constitution stipulatesthe respect of religion and honoring family laws that cor-respond to the different sects in Lebanon.4 I agree withwhat has been said – especially in a religiously pluralisticsociety like Lebanon. An optional unified civil law couldbe the solution. It is a law that might appeal to manyLebanese citizens. This law is worth fighting for becauseit embodies a very important and very useful develop-ment. As it is, Muslims are faced with two obstacles: Theunyielding, obstinate and narrow-minded stance of reli-gious men, and the difficulty of Islamic reform (al-ijtihad).It is true that there is a rule that says that “it cannot bedenied that texts may change with the shifting of timesand places,” yet no one dares change laws pertaining topersonal status. The existing religious codes are consid-ered divine, and their source is God, not society. Hence,laws and rules regulating personal status and inheritance(specifically for Muslims) are seen as absolute and eternal.

IN: This is true, though there are exceptions to the rule.For instance, there is a law in Lebanon that was issued in1974 and re-issued in 1983 that is related to inheritanceof the end of service indemnity. Legislators found a ruse(hilat shar'iyya) to include indemnity as inheritance bysaying that when the Qur'an came about there was noend of service indemnity and so we can apply new lawsregarding this matter. The laws that were accordinglyimplemented had nothing to do with Islamic shari'a, yetthe justification given was that necessities permit the for-bidden (al darourat toubeeh al mahzourat). Another sim-ilar example relates to civil marriages contracted abroadand then registered in Lebanon.

Bechir Bilani: Problems stem not only from religious lawsbut also from the way/s we interpret and apply theselaws. In Egypt the rank of sheikh was refused to any reli-gious man without civil law education alongside his qual-ification in religious legislation. Often, problems stemfrom incorrect rulings by religious men and not from thereligious texts themselves. Errors often are the result ofmisapplication of religious texts. During the times of theProphet when people used to ask him for advice hesometimes refused to give them an answer, stating: “Youare more knowledgeable about your affairs.” TheProphet wanted to avoid answering so as not to make arule of things. Problems are often in the understanding orthe application of laws rather than in the text itself.

NH: Our aim is not to import laws but to come up withfairer ways of dealing with issues of divorce, for example.

BB: Civil marriage is not the solution. I believe that reli-gious marriages are the best form of union. I agree, how-

ever, that non-religious people should have their separatelaws. Concerning inheritance for instance, according toIslamic shari'a, men incur all expenses. I believe that civilmarriages lead to bad results. Evil is innate and you needan innate thing like faith to stop evil. I refuse to fightfaith, religion is very important. Without faith we will actlike savages.

MM: In answer to the second question, until we acquirean optional civil law that deals with personal statusissues, I would rather see laws implemented by civiljudges just like in Egypt, Tunisia, and Syria. Corruptionprevails in Lebanon and religious courts are not immune.Court rulings are biased and unfair unless one is well con-nected. Groups belonging to the same sect side witheach other and religious figures support members of theirsect. The advantage of adopting a positive (civil) law isthat under it one is no longer subject to the whims of reli-gious judges and how fair or unfair they happen to be.There is a due process that has to take place.

AJ: With all due respect to the various religions, we areincapable of building a country when citizens pledge alle-giance to a sect rather than a country. We should adoptone law and one court system that oversees all mattersrelated to personal status issues. As judges we are taughtthat laws are mirrors of society and they progress or stag-nate with it. Judges in Lebanon have managed to mod-ernize laws extensively, thus improving the situation ofwomen. Faith is a personal matter that cannot be imposed.With regard to corruption, I agree that there is corruption,but I believe that the situation can be salvaged.

BB: What you are calling for is the creation of a civil lawfor all, or an optional one. Yet, in doing so you didn'tsolve the problem of confessionalism and the ills thatresult from it.

IN: I disagree with Dr. Bachir. If we don't leave any leewayfor the formulation of a secular sect that is governed bysecular laws this would imply that once a person is bornhe/she is trapped and becomes the victim of the laws thatgovern his/her sect. It is true that one can change his/herreligion but one has to still choose from within the dif-ferent sects and religions recognized in Lebanon.Buddhism is not a recognized religion in Lebanon. We arein a very closed society.

NH: We live in a caste system, as Safiyah Saadeh claims.

MM: I have two brief comments to make. When I wasstill a university student in London I was amazed at howwell behaved the English were in terms of queuing. Onewould be waiting at a bus stop and everyone wouldqueue. So I thought it stemmed from their sense of

social courteousness. Yet, after several years, and to bespecific, in 1998 I found out that there was a queuinglaw that was imposed in 1905 and was cancelled sever-al decades later. The justification for changing the lawwas that it became redundant. People got used to queu-ing. As a result of the 1905 law, the English learned toqueue, and with time it became an act of civility andpoliteness and not a legal obligation. Hence, laws areinteractive and are capable of changing behavior.Another point is concerning positive law: There is anoutcome consequent to authority's imposition of laws.What Dr. Billani was saying was that even if you have thenon-secular sect, namely the 18th sect, confessionalismwill remain. There is a famous saying by [John Maynard]Keynes to the effect that good money chases badmoney. So if someone wants to marry from a differentreligion he/she is free, and so is another who wants tomarry from the same religion and opt for a civil mar-riage, but if he/she finds that religious marriage is betterthen it is ok too. The operation is not mutually exclusive.There should be room for freedom of the individual.Discrimination is prevalent among all religions and sectsand so we have to broaden our horizons. We are notborn with a manual. Religions try to take away the free-dom of their followers.

AJ: Religion is a private matter. It is a personal relationbetween the individual and God. There is no reason whyshould we live at the mercy of religious laws. Had I beengiven the choice I would have contracted a civil marriage.

AZ: Concerning questions 2 and 3, I disagree that reli-gious authorities, especially among Muslims, are notrevered or respected. It depends on which laws thesecourts are implementing. If you want to allow civil courtsto implement religious and shari'a laws, the courts needto be rehabilitated. Shari'a judges are more knowledge-able and capable of dealing with these problems. Thewhole issue revolves around which text should beapplied. Until we have a unified law I would rather seethe laws in the hands of the religious courts. These courtsare less expensive and more efficient. There, having alawyer is not obligatory. Also, appointing someone (tawk-il) is easier and the sentencing is quicker. In principle, I ama secular person so I am in favor of an optional civil lawwith civil courts overseeing the rulings. Concerning cor-ruption, it is everywhere. There are ethical and corruptChristian and Muslim religious figures.

NH: Do you think there is more control in civil courts?

AZ: I disagree. In religious courts one can appeal andthere is a complaint and inspection process.

AJ: I believe that the solution is in adopting a unified

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obligatory civil law and civil marriage law for all sects andan optional religious law for each sect.

AZ: I personally believe that true religiosity is nonexistentin Lebanon. People are fanatic and pledge allegiance totheir religion or sect without understanding the truemeaning of faith. Had the judge who handled the caseDr. Najjar mentioned earlier been a pious and true believ-er he wouldn't have made such a ruling. Even thoughdivorce is an acceptable practice in Islam it is still consid-ered the most hated of lawful practices (akrah al-halal),and mothers can never be denied seeing their children.Usually in divorce cases the religious judges have to tryand make amends between the couple. If the judge failshe tries involving parents and if, after all that, they are stilladamant about getting a divorce, then a divorce will begranted.

IN: Religious courts are paternalistic in nature and reli-gious judges believe that they are implementing justicethat comes from God. Corruption is very prevalent inreligious courts. Politics and political power, wealth,donations, as well as the right connections play animportant role in resolving personal status issues.

MM: Christian and Muslim religious courts look downupon women. Anything given to women is regarded ascharity. If you see how women are treated in religiouscourts you will be horrified. Women have no existence inreligious courts, whereas in positive courts there is nosuch thing.

IN: Religious judges are not knowledgeable and lack theproper legal training. We should abolish all religiouscourts. What is happening in religious courts is horrify-ing.

AZ: Before abolishing religious laws or courts, let us firsttry to change the electoral law.

BB: I have no objection to adopting an optional civil lawthat oversees matters related to personal status, uponone condition: The law should contain a text that con-siders all individuals who adopt the civil law to haverenounced their religious and confessional identity. Thisprerequisite prevents individuals from taking advantageof their religion and sectarian affiliations to secure jobsand top ranking positions within the government. In thecase of couples who have contracted civil marriagesabroad – in countries where civil marriages are a neces-sity – they should, upon returning to Lebanon, berequired to either renounce their religious status, if theyare willing to abide by the rules and regulations thatgovern their civil marriage, or else they should contracta religious marriage.

MM: (Answer to questions 4 and 5) This creates a schiz-ophrenic situation. The confessional system is based on amultiplicity of positions and often ambiguity of solutions.In personal status issues one has to act in a certain man-ner. This schizophrenic situation is partly caused by themulti-colored confessional system.

BB: I believe that the many laws applied are not the prob-lem given that people are never united. They will alwaysargue over politics, belong to various political parties, etc.

AJ: People disagree on programs. This confessional sys-tem prevents one from fighting corruption and punishingindividuals, because they are protected by their affiliationto a sect or religion.

MM: Any contract that is lop-sided, where one party hasvery many privileges over the other, leads to discrimina-tion. I disagree that divorces are easily granted when themarriage is a civil one. However, religious divorces aremore difficult and problematic because they are not egal-itarian.

BB: Adopting a law for civil marriage will not solve theproblem of sectarianism.

AZ: The problems the citizens are facing, in my opinion,are not the result of the variety in personal status codesgoverning sects in Lebanon. The prevalent political sys-tem is responsible for the absence of a true sense ofnationalism. This causes citizens to be more affiliatedwith their sects. It is important to note that practicingone's religion freely while respecting that of the other isan important achievement.

The Opinion of a Religious AuthorityParson Dr. Habib Badr President of the Evangelical Religious Courts of

First Instance in Beirut

Editor's question:Do you believe that giving jurisdiction over familylegislation to religious courts rather than civil courtshas any advantages? What are they?

Giving spiritual or religious courts jurisdiction over familylegislation in Lebanon was not a decision taken on the spurof the moment or during a neutral time in history or in avacuum. It is also not a pure legislative system independentof the public political system that constitutes the founda-tion of Lebanon's modern state and its prevalent politicalatmosphere. The confessional system applied in our coun-try today was adopted during the French mandate anddeveloped from the 'religious system' (millet) that prevailedin Lebanon and the wider region under the OttomanEmpire's 400-year rule.

This millet system is an Ottoman device by means of whichnon-Muslims enjoy Muslim protection. It derives from prac-tices that the consecutive Islamic states (Umayyad,Abbasid, Fatimid, and others) applied to 'the people of thebook' (believers in revealed religions i.e. Christians andJews) and Muslim minorities.

Hence, it is not possible to judge the characteristics of thespiritual courts system in general without talking about thepublic, political and civil system prevailing in Lebanontoday.

Giving religious courts jurisdiction over family legislation isbased on the general principle that religion should deter-mine the identity of the communities that make up theLebanese state

History proves that the organizing frameworks and thepolitical structure in any country, including family legisla-tion, must stem from the social nature and sociological fab-ric of the country in question. In our country, the currentconfessional system does not draw a line between religionand state. This reality is the result of the region's history,which is marked by the Islamic conceptualization of thestate and of its organization. Family legislation stemmingfrom this vision is principally based on religious identity andtherefore cannot fall within the jurisdiction of another leg-islative system, regardless of its kind, by simply writing itinto another system.

Following the example of Europe, where state and religionhave been separated for almost three centuries, is useless

and does not help us in assessing the advantages and qual-ities of confessional legislation. Judging our system as'retarded' or 'underdeveloped' compared to its counter-parts in the West is similarly useless. It is important toremember that during the Middle Ages Europe knew a'dark' period during which it confused religion with thestate before progressing and relinquishing this confusion.The foundations of Western societies stemming fromGreek, Roman and Christian heritages facilitated a shiftfrom the system which confused state and religion to a sys-tem which distinguished between them. But our orientalsociety is of a different nature.

Islamic ideology, which prevails in our region, does notbelieve in separating religion from daily life. There is noshame in that – i.e. there is no shame in the fact that thereligious or confessional factor, whether political or legisla-tive, provides the foundation of a society or state, provid-ed that this confessionalism preserves the principles of therule of law, human rights, freedom, equality, and democ-racy. This is not impossible as the Lebanese experience hasshown in the past two centuries. I believe that if confes-sionalism is correctly applied it can preserve many of thereligious legislative system's advantages while reducing itsdisadvantages.

It is true that misuse of the jurisdiction of religious courts(even the entire confessional system) over family legislationhas in recent years stained the reputation of the confes-sional system. It is also true that many younger Lebaneseprincipally refuse this system in favor of the Western secu-lar system, which gives the civil (or secular) state jurisdic-tion over civil and family legislation. However, the confes-sional system has many advantages that can be brought tolight if it is correctly and ethically applied, and if amend-ments are introduced to modernize it and better adapt it tothe requirements of our era.

One of the most pressing amendments needed relates tothe rights of women as mothers, wives, and daughters.We, as an evangelical confession, have sought to amendour personal status system in this direction. However, thereis much that is yet to be done.

In conclusion, I wish to say that the current confessionallaw, under the present circumstances and for our reality asChristians living in the Arab and Islamic world, remains thebest guarantee of our freedoms and rights until the natureof our society and its civil political fabric are changed.

Endnotes

1. Ijtihad or Islamic jurisprudence.2. A fatwa is a legal pronouncement according to Islam,issued by a religious law specialist on a specific issue.Usually a fatwa is issued at the request of an individual ora judge to settle a question where fiqh, (Islamic jurispru-dence) concerning the issue in question is not clear. 3. Al-qa'ida el kulliya stipulates: La younkar taghayour al-ahkam bi taghayour al-zaman wa al makan, (It cannot bedenied that rulings of early jurists may change in accor-dance with change in the times or locations).4. Article 9: Liberty of conscience is absolute. By render-ing homage to the Almighty, the State respects all creedsand guarantees and protects their free exercise, on condi-tion that they do not interfere with the public order. It alsoguarantees to individuals, whatever their religious alle-giance, the respect of their personal status and their reli-gious interests.


Shari'a Has Never Been and Should Never Be the Basis for Family Law

As the quintessential identity battleground, family law inMuslim countries and communities is one of the hottestpolitical and developmental topics. Those situated withinthese contexts constantly find themselves struggling forprogressive or (more often than not) against regressivereform, while for those with the outsider's gaze, 'under-standing' Muslim communities is currently a major preoc-cupation.

In this context, a book which consciously explodes themyths – propounded by cultural relativists and funda-mentalists alike – of one homogenous 'Muslim world'and the immutability of Muslim laws, and is edited byone of the field's most respected progressive scholars,must be warmly welcomed.

Muslim men, since the earliest days of Islam, have takenwomen-friendly positions and today some of the mostoutstanding gender-sensitive theological interpretationsare being produced by men; yet this fact is often over-looked. This is particularly true among academic and pol-icy-making circles outside Muslim contexts, where short-

sighted political correctness has produced a form of seg-regation whereby only women are to propound upongender relations in Islam and Muslim societies. It is there-fore significant that the present book, which seeks tohighlight the human rights of women, be primarily thework of a male scholar.

In all cultures, women are the pivotal territories, mark-ers and reproducers of the narratives of nations andother collectivities.1 In the case of Muslim societies thishas had two identifiable outcomes. Firstly, fundamen-talist forces and states that have failed to build alterna-tive national identities have focused their politicizationof identity on women – invariably through dress codesand/or family law. As women activists and researchers inmany Muslim contexts have noted, the family is the siteof women's most immediate and daily experience ofimposed definitions of gender appropriate roles, and itis also where the converging influence of customs, cul-ture (including religion), and laws (frequently justifiedwith reference to religion) is most vivid.2 Secondly, asLeila Ahmed argues, women have been the focus of anOrientalist discourse on Islam that characterizes it asinherently oppressive of women.3 Even today, outsideMuslim communities, discussion of women in Muslim

Reviewed by Cassandra BalchinWomen Living Under Muslim LawsH-NET BOOK REVIEW Published by [email protected] (February 2004)

Islamic Family Law in a Changing World:A Global Resource Book

Abdullahi A. An-Na'im, ed. London: Zed Books, 2002

Book Review

societies is common shorthand for wider assertions ofcultural superiority and the supposed benefits of the lib-eral Enlightenment.

While An-Na'im focuses on family law in Muslim societiesand particularly on its impact on women's human rights,he is neither a fundamentalist nor a liberal. He is part ofa long tradition of iconoclastic, questioning, progressiveMuslims, both confident in Islam's message of social jus-tice and convinced of the importance of human agency.

Before summarizing the scope, purpose, and content ofthe book, I would like to clarify my own position. I wasclosely involved in the 1992-2001 Women and Law in theMuslim World (W&L) action-research Program run by theinternational solidarity network, Women Living UnderMuslim Laws (WLUML). This produced a very different –but possibly complementary – book on a similar topic:Knowing Our Rights: Women, family, laws and customsin the Muslim World (2003). My evaluation of An-Na'im'sbook is therefore bound to reflect commonalities anddivergences in the theoretical and practical approaches ofthese two projects. Meanwhile, I am now on the AdvisoryBoard to the Rights at Home project, the follow-up to the“Islamic Family Law: Possibilities of Reform throughInternal Initiatives” project from which An-Na'im's bookis derived, and which was until veryrecently headed by An-Na'im.

The now-increasingly significantbody of literature on these topicshas to date fallen into five broadcategories: anthropological orsociological works (generally basedon Ph.D. theses and focusing indepth upon one or two particularcountries); theological discussionsand (re)interpretations; writingslargely grounded in political sci-ence and again usually based uponthe experience of a limited rangeof countries/communities; listingsof statutory texts with usually per-functory and/or generally legalistic commentary; and,cross-disciplinary writings which combine a knowledgeof jurisprudence, statutory law, and the realities ofwomen's lives – of the 'law in development' or'women's law' schools. This last category is quantita-tively by far the smallest – even if arguably the most rel-evant to understanding and formulating strategies forstrengthening women's human rights in Muslim coun-tries and communities. Rarer still is the sub-categorywithin this of works that move beyond a country-spe-cific or even region-specific focus to encompass the fulldiversity of Muslim societies and to offer a cross-com-

parative view. An-Na'im's book, as indeed the WLUMLbook, does precisely this.

Before discussing the theoretical underpinnings of An-Na'im's book reflected in his preface and introductorychapter, I shall first examine the bulk of the work. This isorganized into nine parts, each covering a distinct geo-graphical region, with sections on each region's social,cultural and historical background followed by legal pro-files of countries in that region. A total of 38 countriesare covered, in addition to Central Asia and the Caucasus(which includes Turkey), and southern Africa which areonly covered via regional backgrounds. There are con-texts such as Fiji and the United Kingdom where,although governed by non-Muslim, 'secular' laws (i.e.,generally based on a Christian conceptualization of mar-riage), Muslim communities may find the courts makingallowances for or even reinterpreting Islamic family law intheir judgments. A publication aiming to map Muslimfamily laws globally needs at least to acknowledge suchdiasporic communities – even if only as a group fallingoutside the 'mainstream.'

This geographical tour de force reflects much of thediversity of Muslim countries and communities: WhereMuslims are the majority and the minority, affected by

diverse colonial histories and withdiffering models of statehood fromtheocracy to monarchy to democ-racies which have waveredbetween military rule and populistelected governments; in some,Islam is the state religion while oth-ers have an (increasingly forgotten)history of secularism.

The scope of topics covered is sim-ilarly ambitious, offering a historyof Islam, political institutions andlegal structures in the region,along with a summary about thefamily, marriage, divorce, polygy-ny, children, custody of children,

and inheritance. Meeting An-Na'im's declared intentionof providing a gender-sensitive analysis, each regionalprofile also examines the issue of seclusion of women(purdah) which is broadened to extend to questions ofpolitical and economic participation, education, and ananalysis of trends in dress codes. For each country, thelegal profile section examines its legal history, the local-ly predominant schools of Islam (and other religions),the constitutional status of Islam/Islamic law, the courtsystem, 'notable features' (an overview of relevant leg-islation with some indication of case law trends indepth, varying from half a page to half a dozen pages),

... family laws in

Muslim countries are

not shari'a but state

law, & like all other

law, derive authority

from the political

will of the state


notes on the local case law reporting system, and anindication of international conventions signed (with rel-evant reservations). Both the regional background andcountry legal profiles have accompanying bibliographiesand sources.

An-Na'im is aware that the project is ambitious, not leastbecause the law is organic and constantly changing;already commentary regarding Morocco and Iran havebeen rendered outdated by reform.

It is an extraordinary achievement to have brought allthis information under one roof and in a structure thatis generally successful: The organization of the materialis logical and consistent (even if varying greatly indepth); the size certainly unintimidating; and the lan-guage refreshingly appropriate for a non-academicaudience (if occasionally inconsistent in that in placeslaws are reproduced verbatim with attendant legalese).If I have one language-related criticism it is thatspellings of certain Arabic words such as shari'a, talaq-al-tafwid or qadi have been made uniform rather thanused in their local form (shariat, talaq-i-tafweez,kazi/qazi, etc). Is this an inadvertent privileging ofArabic-speaking Muslim communities as more 'authen-tic' than others? The failure to acknowledge localspellings of common jurispruden-tial terms is possibly behind An-Na'im's mistakenly separate glos-sary entries for khul' and khula(the latter incorrectly conflatedwith mubarat). Meanwhile thepublishers, Zed, should simply nothave allowed sentences such as“Hasan 'ala dhikrihi's-salamannounced the qiyamat, whichmeans a spiritualization of theshari'a” to pass (although none ofsuch sentences detracted from theoverall clarity of the book).Inevitable repetition of the speci-ficities of legal provisions in theregional backgrounds and then inthe country profiles should equally have been smoothedby a proper copy edit. This is particularly true for aregion such as South Asia where a single colonial eralaw applies across the board with almost insignificantpost-independence variations.

I cannot pretend to be sufficiently knowledgeable of thelegal systems in all 38 countries covered to discuss themerits – or demerits of all An-Na'im's country legal pro-files. I shall, therefore, restrict my analysis to the SouthAsian section and the legal profiles for Bangladesh, India,Pakistan, and Sri Lanka, presuming that these are repre-

sentative of the overall book (although I suspect less sosince An-Na'im's greater knowledge lies in legal systemsof the Middle East and parts of Africa). Moreover, what-ever criticism follows is to be seen in the context thatnowhere else in the existing literature is there such amanageable socio-legal history that covers so many con-temporary family laws with an avowed human rights per-spective.

But the very scope of An-Na'im's book is bound too to bethe source of its weaknesses. It is all but impossible toproduce such a work that is error-free. Indeed, recogniz-ing this, An-Na'im notes that “all the information con-tained in this book was first presented on a website(www.law.emory.edu/ifl) for nearly two years withemphatic invitation and appeal to all concerned to cor-rect our factual assertions and/or challenge analysis.” (p.xiii) That the project did not receive a single responsemeans the blame for factual error must at least beshared.

Examples of errors include the assertion that Pakistan's'Islamization' laws decreed that in compensation (diyat)cases the value of a woman's life was to be half that of aman's (p.205). This assertion was indeed commonamong local women's rights groups but was an activist

slogan rather than a reflection ofthe actual law. Other examplesinclude the statement that Pakistanbecame independent in 1948(p.205) (it was 1947), and that'Bangladesh's Muslim Family LawsOrdinance' was passed in 1962(p.210) (the Ordinance was pro-mulgated in 1961 and whenBangladesh was still part ofPakistan).

Of greater concern is the possibilitythat very different people orsources of information were usedfor the regional background andthe country profiles. In certain

instances there are contradictions between informationpresented on the same topic in these two separate sec-tions. For example, the regional background claims thatwomen in Bangladesh can only seek divorce on thegrounds of polygyny, and this too only if the husbandremarries without permission from his existing wife andthe local authorities. (p. 210) Yet the country profilemakes clear that multiple grounds for dissolution of mar-riage are available to Bangladeshi women and that it isthe local authorities' permission (not the existing wife'spermission) that is required for a polygynous marriage.Similarly, the regional profile asserts Bangladesh's consti-

... 'Islamic perspective'

is the preferred perspec-

tive & that preservation

of religious identity is

essential for all

always work to women's disadvantage. Wherever possibleAn-Na'im has clearly attempted to provide a sense of howlegal practice is continuously evolving. Sadly he has, atleast in the case of child custody law in Pakistan, missedcommenting on hugely positive developments in recentdecades where interpretation of the text in case law has allbut changed the essential nature of the original law –overwhelmingly to women's (and children's) advantage. Torefer, as he does in this section (probably using Pearl andMenski, 19985 as sources), to the 'classical Hanafi position'(p.235) is to miss the point entirely.

With these comments in mind, I would be cautious aboutfully agreeing that An-Na'im has met his stated objectiveof providing information on specific legal rules and prac-tices in family law. But, as stated earlier, it is probablyunfair to judge An-Na'im on the detail he has missed asthe book is the acknowledged outcome of a 'global“mapping” survey' and admirably achieves its otherobjective of providing “an overview of the influence ofIslam on the socio-cultural and historical context” acrossdifferent countries. Where else, for example, would I beable to find a brief, accessible description of the legal his-tory of Tanzania's Muslims and the family law provisionsapplicable to them? As symbolized by my participation inthe Rights at Home follow-up project, An-Na'im's IFL pro-

ject and WLUML's Women and Lawin the Muslim World Program areessentially complementary, as aretheir publications; where An-Na'improvides a broad and geographicalfocus, WLUML provides an issue-based, more in-depth examinationof fewer countries. Both are need-ed.

Whatever the strengths and weak-nesses of An-Na'im's descriptionand analysis of family laws in Muslimcountries and communities, his pref-ace and introductory chapter,“Shari'a and Islamic Family Law:Transition and Transformation,” are

outstanding. Within days of reading it, I had copied andshared this chapter with the Gender Unit head in a majorinternational human rights organization who was strug-gling with concepts around shari'a and recent develop-ments in Nigeria.

An-Na'im was a student of the great Sudanese Muslimreformer, Mahmoud Mohamed Taha, hanged in 1985 bythe Islamist-influenced government. Taha was no wishy-washy liberal reformist but a radical non-conformist andAn-Na'im’s progressive apprenticeship shines through hisintroduction.

tution is 'avowedly secular,' (p.206) while the countryprofile correctly notes that the secular principle wasdropped in 1977.

Is the problem possibly that, certainly in the case ofSouth Asia, there is a tendency to use academic, non-practicing lawyer sources that are largely based outsidethe region? Or is this merely pique on my part because,for example, none of the Pakistan Women and LawCountry Project materials (three internationally recog-nized publications on laws, case law and customs by1998) seem to have been consulted?

The scope of An-Na'im's book also does not leave room fora more nuanced understanding (particularly class, age, andethnicity differentiated analysis) of, for example, femaleinfanticide or the treatment of divorced women. We areleft, therefore, with frustratingly broad assertions such as“divorced women are stigmatized and face a difficult timesocially and economically in Pakistan.” (p.209) Surely this istrue for Christian women in the United Kingdom whileoverlooking the fact that among the Sindhi peasantrydivorce is not particularly stigmatized.4 It is possibly in thearea of custom – rather than statutory law – that this bookis at its weakest. But researching and reporting custom isnotoriously complex; custom can differ widely according toa long list of variables and even with-in the same village numerous differ-ent practices may co-exist.

While in the area of statutory law,the book offers useful summaries offamily law provisions for most coun-tries, overall there are few case lawcitations (too many would becomeindigestible). Thus pointers are miss-ing to the contentious family lawissues in any given country. Perhapsmore importantly, there is little senseof the very significant distinctionbetween text and implementation.This is the crevice through whichwomen's rights most often slip –either because under the influence of social mores and/orpolitical trends the courts do not apply the law within arights-based framework, or because procedural law workscounter to the rights established under family law. Forexample, An-Na'im notes that Sri Lankan Quazis have'exclusive jurisdiction over the adjudication of maintenanceclaims' but fails to point out that Quazis have no powersof enforcement and a woman has to apply to the ordinarycourts for enforcement of a maintenance decree, leavingher running between the two forums.

But the gap between text and implementation does not

In all cultures, women

are the pivotal

territories, markers

& reproducers of the

narratives of nations

& other collectivities


He notes at the very outset that the shari'a is not mono-lithic. There are significant theological, legal and other dif-ferences among and within Muslim societies, and its appli-cation is modified by customary practices and state policy.His neat history of shari'a talks of 'surviving' schools andthe 'total extinction' of some, both indicating that shari'ahas always been internally contested. Even among pro-gressive scholars there are differences over the meaning ofshari'a: Some such as Riffat Hassan (1994) contend thatthe shari'a is not divine while some such as Ziba Mir-Hosseini (1999) distinguish between shari'a and fiqh,regarding the former as divine and the latter human.6

Given that all hinges on what precisely is included in shar-i'a, An-Na'im's introduction would have benefited from aclear definition. This is only obliquely offered towards itsconclusion: 'a moral code for the individual's relationshipwith God,' (p.18) meaning An-Na'im falls into the lattercategory; in his view the more limited understanding ofshari'a is a recent phenomenon, emerging in the colonialperiod. Refreshingly, his analysis does not limit to colonial-ism the origins of parallel judicial systems in Muslim coun-tries and their 'division of responsibility' between religiouscourts for family law matters and secular courts for mat-ters other than personal status law.

An-Na'im insists that family laws in Muslim countriesare not shari'a but state law, and like all other law,derive authority from the political will of the state. Thisalso contests analysis of family law as supposedly rele-gated to a 'private' issue. He is angered that the post-independence elites in Muslim societies sacrificedwomen's human rights for the sake of political expedi-ency but notes that while gender is a new element, thepolitical manipulation of religious legitimacy has beenaround since the beginning of Muslim history.

Unlike the Islamists who may also contend that currentfamily laws are not shari'a, An-Na'im is categorical thatshari'a has never been and should never be the basis offamily laws for Muslims. This is where An-Na'im is at hisvery best. He counters the Islamists' claim that applica-tion of shari'a as a systematic normative order is some-how an inescapable requirement for a pious Muslimcommunity. As he points out, shari'a in this form did notdevelop until some 150-250 years after the Prophet'sdeath and was therefore not applied by the early gen-erations of Muslims – who are usually taken to havebeen more devout than later Muslims. An-Na'im furthercontends that even in the supposed pre-colonial GoldenAge, the practical application of shari'a has been gross-ly exaggerated. It is impractical to enforce shari'a asstate law because it does not provide all the tools andmaterials for a comprehensive and sustainable practicallegal system, particularly given the major theoreticalproblems and differences within and between the

schools. Challenging those who misuse Islam as a polit-ical slogan, An-Na'im notes that if countries were toactually live in accordance with shari'a, they would haveto entirely transform their political boundaries and thenature of government, also living in almost total eco-nomic and political isolation from the rest of the world.Iran's current reform movement – supported by manyclerics – demonstrates the impracticality of theocracy inthe modern world.

An-Na'im is a true secularist, for whom the transcen-dental essence of shari'a is sullied by the very step ofenacting it as the positive law of the state. For him, theonly means of achieving “equality and fairness forMuslim women within an Islamic perspective, withoutcompromising the religious identity of Islamic societiesand personal piety of individual believers” is for humanagency to understand the underlying (historically con-textualized) rationale and spirit of the Qur'an andSunnah, and develop equivalent social policy applicablein our modern context. This, he suggests, already existsin the form of universal human rights norms.

Many in Muslim countries and communities might con-test the assumption that an 'Islamic perspective' is thepreferred perspective and that preservation of religiousidentity is essential for all. Indeed, in terms of women'saccess to justice in family law, WLUML's W&L researchclearly revealed that it is neither the 'Islamic' nor 'secu-lar' character of a law which makes it less or moreoption-giving for women. The issue is whether the stateand human society root this law and apply it in a humanrights framework. Through perhaps very different pathswe have come to the same conclusion.

Reprinted with permission from H-Gender-MidEast

Endnotes

1. Yuval-Davis, N. 1997. Gender and Nation. Sage. London. p.39.2. Shaheed, F., Warraich, S.A., Balchin, C., Gazdar, A., eds.1998. Shaping Women’s Lives: Laws, Practices and Strategiesin Pakistan. Lahore. Shirkat Gah Women's Resource Centre. p.xiv.3. Ahmed, L. 1992. Women and Gender in Islam. YaleUniversity. pp. 151-154.4. Balchin, C. ed. 1996. Women, Law and Society: An ActionManual. Lahore. Shirkat Gah Women‚'s Resource Centre. p.92.5. Pearl, D. and Menski, W. 1988. Muslim Family Law 3rd edi-tion. Sweet and Maxwell. London.6. Hassan, R. 1999. Selected Articles, Grabels 1994. “WomenLiving Under Muslim Laws” and Mir-Hosseini, Z. 1999. Islamand Gender: The Religious Debate in Contemporary Iran.Princeton. Princeton University Press.


Why Do Politics Play Out on Women's Bodies?

Studies dealing with the broad theme of 'women andreligion' are often designed along the lines of edited vol-umes of essays on each of the major religious traditions,written (most often) by Western experts. Such anapproach is perfectly legitimate and, when the results areinformative, justified as well. It is an approach, however,that makes comparison between (and even within) tradi-tions difficult, as one crucial aspect of this kind of tradi-tion narrative is inevitably missing. That aspect, and themost important word in this book's sub-title, is 'contexts.'The contexts in the present case are not defined by therebeing only two traditions treated, the (Catholic) Christianand the (Sunni and Shia) Muslim. Very specifically, five ofthe ten contributors to the volume, including the two edi-tors, attended the UN 4th World Conference on Womenheld in Beijing in 1994. Two others were members oftheir countries' official delegations in Beijing while a thirdwas, during preparation of the project, arrested andcharged with treason for critiquing discriminatory lawsagainst women in her own country. The Catholic popula-tions dealt with are those in the United States (SusanMaloney), Latin America, with special focus on Costa Rica

(Laura Guzman Stein), Ireland (Yvonne Galligan andNuala Ryan) and Spain (Celia Valiente), while the Muslimcontexts include Turkey (Ayse Gunes Ayata), Iran(Mehranguiz Kar), Egypt (Heba Raouf Ezzat) andBangladesh (Najma Chawdhury).

In the editors' words, the Beijing Conference reflectedimportant international divisions of perspective and con-cern, one being “a new transnational and cross-culturalconservative and religious alliance against equal rights forwomen” and another the “growing implications of glob-alization for women and gender politics.” Conferenceheadlines were made by the alliance of some Catholicand Muslim delegations, including men and women andled by the Vatican in Rome. Their objective was a uniformposition in opposition to various women's issues pro-posed in the Platform for Action (PFA). The editors blunt-ly ask, 'Why is it that politics in Catholic and Muslim con-texts are so often played out on women's bodies?' Therelated but broader issue dealt with in this book is thevariety of strategies adopted by women when traditionalgender patterns are challenged by forces of modernity.

An important observation is made in the editors' intro-ductory remarks concerning the connecting themes

Reviewed by David WainesDepartment of Religious Studies, Lancaster UniversityPublished by [email protected] (July 2004)

Globalization, Gender andReligion: The Politics ofWomen's Rights in Catholic and Muslim ContextsJane H. Bayes and Nayereh Tohidi, eds. Houndmills and New York: Palgrave, 2001


between the essays, namely that in these debates “theongoing tension [is] not only and simply between moder-nity and tradition, secularity or religiosity, but alsobetween competing notions of modernity, modernizationand traditionalism” (p. 14). The force of this remark,however, is blunted somewhat by the sentence immedi-ately following, claiming that the “real line of demarca-tion seems to be between those forces who are commit-ted to democracy, freedom of choice, and equalhuman/women's rights and those who support authori-tarianism, discrimination and gender hierarchy under areligious or secular guise” (p. 14). There are surely alsocompeting notions of some or all of these terms just asthere are of the ones previously mentioned. A similar dif-ficulty in the editors' presentation appears when they,quite rightly, assert that the feminist movement is notone but many and that negotiating modernity takesmany forms. But it is not as immediately evident thatwhat unites feminists is a belief in “human dignity,human rights, freedom of choice and the further empow-erment of women rather than any ideological, spiritual orreligious stance” (emphasis added, p. 50). This claim, likethe one above, privileges a secular perspective. Yet botheditors concede earlier that “a basic claim among variousreligious feminist reformers ... is that their respective reli-gions, if understood and interpreted correctly, do notsupport the subordination of women” (emphasis added,p. 48). An illustrative point is the debate in Turkey over awoman wearing a headscarf in government offices oruniversities. In her fascinating piece, Gunes Ayata notesthat the prohibition of the Kemalist government againstheadscarves dates from the 1930s. The ban includedfemale students of theological colleges who could onlycover their heads while reading the Qur'an. In the mid-1990s, the Islamic Welfare Party found itself rangedagainst secular state institutions, including the army,when it proposed legislation which would, in effect,make it a woman's free choice whether or not she worea headscarf in these public places (p. 169). Is the situationhere a clear-cut one of democracy versus authoritarianismor of free choice against discrimination?

This leads to a comment on what is, perhaps, the mostinteresting contrast between feminist movements inMuslim countries: that described in the accounts onTurkey and Iran. The authors set each country's context inthe opening sentences of their narratives. With thefounding of the Turkish Republic in 1923, reforms involv-ing women's rights were “some of the most important...attempts to break away from the Muslim world and turntoward the West” (p. 157). Contemporary Iran, by con-trast, is a country where 70 percent of its population isunder the age of 25, most of whom were born and edu-cated under Khomeini's Islamic revolution of 1979. Since1980, both countries have witnessed new configurations

in their feminist movements: In Turkey, the older, secularKemalist groups were challenged by 'new' feminists,influenced by recent radical Western feminist examina-tions of patriarchy, while in Iran those who conformed tothe new Islamic state's policies on women were opposedby 'non-conformists.' In Turkey, Gunes Ayata concludes,the 'ongoing threat of Islamic fundamentalism' has pro-duced a bitter confrontation between women as symbolsof opposing sides, the secular and religious (p. 173); as aconsequence, the author laments, 'women have lost thesearch for new solutions and alliances.' Note that, byimplication, only the secularist feminist view is deemedlegitimate for all Turkish women. In Iran, Kar notes thatwhile non-conformist and secular women who remainedafter the revolution agree that religious interpretation isnot a beneficial strategy for women, there has nonethe-less been a “convergence of elements of the religiousand secular women in their thinking about an increasingnumber of issues with regard to women” (p. 199).Together with a commitment to debate, dialogue, andpluralism among the various feminist perspectives, these,ironically, appear to be precisely the elements lacking inthe Turkish case.

Another fascinating contrast may be drawn betweenMaloney's account of women's issues among Catholicsin the United States and Chowdhury's coverage of thesame questions in Bangladesh. Of the Christian popula-tion in the United States, which is about 70 percent, theCatholics are in the minority, while in Bangladesh, theMuslim population stands at just under 90 percent; thetotal population of the United States is approximatelytwice that of Bangladesh. The United States is a secularstate, while the state religion in Bangladesh is Islam.According to demographer Emmanuel Todd, the fertili-ty rate between 1981 and 2001 in the United Statesrose slightly from 1.8 to 2.1 while it dropped dramati-cally in Bangladesh from 6.3 to 3.3. Adult literacy inBangladesh is still low at 34 percent, but is apparentlyset to rise quickly, as the fertility rate declines further. Inthe secular, more highly educated and pluralist contextof the United States, Maloney's article significantly dealswith the more abstract subject of Catholic 'feminist the-ologies,' while Chowdhury discusses the very practicalproblems of the 'politics' of Muslim women's rights.The Catholic feminists' chief concern is not theAmerican state but whether and how far to support theexternal authority of the Vatican. For Bangladeshi femi-nists the patriarchal state and the broader society repre-sent the main focus of attention; the state itself muststeer a cautious course between advocating policiesthat may benefit women and an awareness not to zeal-ously confront conservative, patriarchal political forces.One Catholic perspective, described as 'holistic femi-nism,' is represented by the American academic who

chaired the Vatican delegation to the BeijingConference; Mary Ann Glendon employs traditionalCatholic sources to promote the view of woman aschiefly wife and mother. Equality of the sexes, in theBiblical sense, means men and women complement oneanother, a position familiar among Islamic feminists inIran and Turkish 'fundamentalists,' but rejected by theTurkish feminists described by Gunes Ayata. InBangladesh, the women's movement invokes articles ofthe Constitution to promote gender equality, but arguesthat it does not explicitly cover the private sphere ofwomen's lives in the home. As Chowdhury concludes,on questions of gender equality in Bangladesh, there isever a gap between political rhetoric and reality. In theUnited States, where Catholic women enjoy (relatively)higher levels of health, education and disposable wealththan their Bangladeshi sisters, there is, according toMaloney, little communication or contact betweenwomen of different perspectives (whether holistic, mod-erate or reconstructive). This is a situation similar to the

women's movement in Turkey, but much less so in Iranand Bangladesh.

This volume contains a wealth of material covering sever-al important, but significantly different, contexts in whichwomen contest, in varying degrees, traditional religio-patriarchal values and compete among themselves froma variety of perspectives. The final excellent essay of thebook, by Heba Raouf Ezzat, on women's developments inEgypt reiterates the editors' point (noted above) that thestruggle is not simply one between A and B, but of com-peting definitions of A and B or, in this specific case,between competing visions of secular modernity, Islamicmodernity, and Islamist traditionalism. Ezzat's final cau-tionary words may fairly sum up all the contributionsfrom whatever perspective each is offered, “that thestory has no happy ending; it is still unfolding” (p. 272).Nonetheless, the story as told thus far is a must read.

Reprinted with permission from H-Gender-MidEast

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Women in TimePart I

Profiles of Activistsin the Lebanese Women’s

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Documentary

Documents

Al- Raida Issue #111-112 - Lebanese American Universityiwsawassets.lau.edu.lb/alraida/alraida-111-112.pdf#103, 2003: Women and War in the Arab World #104/105 2004: What About Masculinity?