In February 2021, the Council of Ministers referred to the Egyptian Parliament a comprehensive proposal for a personal status law, but the government, parliament and several official bodies quickly repudiated the draft law leaked to the media, after it sparked a storm of criticism, especially from women’s rights institutions as well as some currents Therefore, the draft law was withdrawn, and the Egyptian president promised to present a new “balanced” law.

However, no new draft personal status law has come out so far, despite the Egyptian regime's great interest in the "family" file since 2014, when the work agenda of the Legislative Reform Committee (which is affiliated with the Cabinet and is close to the presidency) included amending the Personal Status Law.

This has previously caused tension in relations with the Sheikh of Al-Azhar, against the background of the issue of verbal divorce, and Sisi's efforts not to be relied upon to curb the high divorce rates.

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Al-Sisi was not able to abolish the “oral divorce,” and his government was not able to present a “balanced” personal status bill, a law that has passed for nearly a hundred years, and then the cases were left to the judges’ jurisprudence and personal visions based on their understanding of the text of the law and the provisions of Islamic law based on it. .

The failure of the system so far in that area, which appears to be more complex than the economy, administration and urbanization in which the system has made great strides, highlights the extent of its sensitivity and complexity.

The Personal Status Law has always been a hot topic, and the debate around it has constantly stirred controversy, not only in Egypt but in the entire Arab world.

In Tunisia, Morocco and Lebanon, the personal status law file has sparked a permanent conflict between religious currents that rejected any articles that contradict "Islamic law", and secular and liberal regimes and currents that demanded a "civil" personal status law.

Between this and that, Arab women, especially Egyptians, remain captives of the current laws.

Why, then, does the law based on "Islamic law" not do it justice?

Why is there all this controversy over the Personal Status Law?

How did the Personal Status Law appear?

The personal status law in Islamic countries, especially Egypt, Malaysia and India, was linked to the movement of controlling and codifying Sharia, which was supervised by the British occupation.

But in Egypt in particular, legalization efforts began earlier, as the Council of Rulings was established during the era of Muhammad Ali (between 1848-1849) with similar councils in regions and governorates such as Alexandria.

Those councils worked on regulating the fields of commerce and industry, as well as criminal procedures, with two muftis, one Hanafi and the other Shafi'i, attached to each council.

At that time, the Hanafi school of thought was the official doctrine of the Ottoman state, and Muhammad Ali adopted it and made it the official doctrine of fatwas in Egypt closer to the Attic State, although the majority of the people in Egypt followed the Shafi’i school, and some in the south followed the Maliki doctrine.

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The jurisdiction of the Sharia courts, the only courts in Egypt at that time, was limited to issues related to personal status such as marriage, divorce, inheritance and land ownership.

Meanwhile, the Egyptian ruling elite and legal professionals refrained from implementing the Ottoman Penal Code of 1840 and 1851, and preferred the establishment of an Egyptian penal code similar to the French law.

In 1875, the Egyptian Civil Code was issued, largely similar to the French law, without any mention of Islamic law or its penal system.

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By 1883, Sharia courts became third after mixed and civil courts, and their jurisdiction became limited to matters of personal status, endowment and others, and the system for appointing judges changed, after Istanbul was the one who appointed the "Askar Judge", who in turn appointed judges in Egypt, and from Then this matter fell into the hands of the Khedive, who had the privilege of appointing a judge, who in turn advised with the Grand Mufti of Egypt and the Sheikh of Al-Azhar regarding the appointment of members of the Legislative Council and the judges, and the follow-up of their work in the courts, especially the Sharia courts in which the trial was based on the provisions of Sharia.

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With the issuance of the Ottoman Family Law in 1917, Egyptian jurists had a model for how to control issues related to personal status, so they followed the Ottomans’ approach this time and the Family Law was issued in 1920, deriving its provisions from the Hanafi school “as it is most in line with the conditions of the modern world”, before it was amended The law in 1929 opened the way for the selection of rulings from other sects.

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The Personal Status Law of 1929 and its predecessor, issued in 1920, were the first two family laws in Egypt that were prepared through codifying jurisprudence by combining sects and selecting from them to achieve the interest, but here comes the question: whose interest?

Did the doctrine of selection, which the muftis followed, to build a new form of Islam in line with the needs of the Egyptian state and give it the right to speak in the name of Sharia through its official institutions, actually achieve the interest of the Egyptians?

Whose interest is the law?

The draft personal status law presented by the Egyptian government in 2021 included all articles related to personal status in Egypt, after they were divided between multiple laws. Then facilitate the tightening of the regime's control over the judicial system and the control of society.

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However, the main challenge was dealing with the texts and provisions of Sharia, and selecting what could be codified from them. Therefore, various parties worked on the articles of the draft law.

Including the Egyptian government itself, the National Council for Women, and the sheikhdom of Al-Azhar, which produced materials characterized by shame and discord.

For example, among the laws included in the bill is a law fining a husband who marries another woman without informing the first wife of an amount ranging between 20-50 thousand pounds, or imprisonment for at least one year, as well as punishing the authorized person if he does not notify the first wife.

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With regard to “wife’s guardianship,” one of the articles of the law states that any “male” from the family of a woman who wishes to marry has the right to annul her marriage within one year on the grounds of the incompetence of the husband of her choice, or if she married without the consent of this “male” or another From the males of the family, or if she did not obtain a dowry from the one to whom she married herself.

(4) In addition, according to the new law, the mother does not have guardianship over her children in everything related to education, health, travel, issuance of official papers and other transactions that almost nullify the presence of women in every legal or official transaction related to their children.

While the father may travel with his children without permission, the wife or divorcee may not travel with her children without the written consent of the husband.

Multiple crises experienced by Egyptian women due to the old Personal Status Law, and their suffering may increase with proposed amendments to the law... "May Amer", one of them talks about her story# Egypt pic.twitter.com/SxoF5bOggb

— DW Arabic (@dw_arabic) March 20, 2021

These provisions were not in the interest of women, especially divorced women who are subjected to revenge and humiliation from their ex-husbands.

But the truth is that these laws and articles were in force before, with the exception of the law criminalizing intermarriage. What the new draft law created was recording the details with legal articles, as the matter was previously left for negotiation between the registrars of marriage contracts and the jurisprudence of judges in the cases received by them from families who objected to Her girls were married to husbands from a lower social background and class without their knowledge, or they were left to be decided outside courtrooms as a private matter for the families among themselves.

This leads us directly to the long debate on the issue of codifying the provisions of Sharia and its purpose in Egypt, a debate whose most prominent chapters occurred during the era of the late President Anwar Sadat.

As soon as an article was put in place saying that Islamic Sharia is the source of legislation in Egyptian law, various legislative battles broke out that began in 1979 when Sadat imposed a new family law, the first of its kind since the issuance of the 1929 law, which was based on the principle of combining jurisprudential schools.

The new law was known as the "Jihan" law, in reference to Sadat's wife, who had a hand in issuing the law with the aim of "improving the status of women and children." The Mufti, the Sheikh of Al-Azhar, and the Minister of Endowments participated in drafting the law, but it was met with fierce criticism in all quarters, under the pretext that it "violates Islamic law."

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Given that the eminent Mufti Sheikh "Jad al-Haq" participated in the drafting of the law, he had no hesitation in defending it, so in 1980 he issued a lengthy official statement explaining the law centered on two of its articles: Article 6 / b, which stipulates that harm falls on the If the wife marries another woman without her permission, and Islamic currents have interpreted it as undermining polygamy that is permitted by Sharia.

As for the second article, it is (2/5), which stipulates that the wife shall not be deprived of the right to alimony if she leaves the house in order to work.

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Sheikh Jad Al-Haq

Jad al-Haq said in his defense of these two articles: “There is nothing in them that contradicts any text in the Qur’an, in addition to that their ruling is contained in jurisprudential references. This text is not an attack on polygamy, but rather a mere affirmation of the right of a particular woman to prevent her husband from it. and business projects.

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This lengthy commentary of the Mufti was an extension of the situation that began since the era of Muhammad Ali with the procedures for implementing the provisions of Sharia, while most of what Sheikh Jad al-Haq mentioned were jurisprudential choices that could be taken by whomever he wanted, converting them into binding laws narrows what the Sharia has expanded, and stifles the freedom of Choosing between the opinions and doctrines of jurisprudence that Islamic societies have become accustomed to throughout their history.

In the beginning, fatwas were restricted to the Hanafi school of thought, and today people must not follow any of the four schools of thought and follow the choices of the sheikhs and muftis appointed by the ruling authority.

This clearly appears in the response of Sheikh Jad al-Haq when he was asked about the need for a personal status law, answering: “The two personal status laws issued in 1920 and 1929 were good models for codifying jurisprudence, and Law 44 is only another small additional step in the same path. The doctrines constituted a project for making legal decisions in line with the requirements of the times, and the Islamic Research Academy approved it in its first conference, and there is no need to abandon it now.

Therefore, the codified Sharia has become - as opponents of Sharia legalization say - similar to a new doctrine, the doctrine of the state, where it is reviewed by its official sheikhs every period.

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This is the same vision held by the current Egyptian regime, which wants the Personal Status Law to perform the function for which it was established in the past, which is controlling society, especially controlling issues of marriage and divorce, limiting divorce cases and controlling the standards and values ​​of the Egyptian family, whose absence led to an increase in Divorce cases threaten societal discipline in 2011, in addition to the burden on the judicial system, and family problems and crimes that are out of control.

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Sharia that oppresses women

In order to understand these ancient and yet renewed battles over personal status law and the rights of married women, we may have to look at the colonial context in which law was formed at a time when Egypt was under British occupation.

At that time, the occupation, as Azza Hussein wrote in her book “The Policies of Codifying Sharia,” sought to separate the public sphere from the private sphere, so that matters related to the public sphere, such as commerce, education, health, and legal procedures, are subject to man-made laws that serve its interests, while the private sphere is a sphere. Local sensitivities” in which the English authority should not interfere in order to prevent any uprisings, as happened in India and Malaysia.

In this context, the Egyptian Personal Status Law came out, which was an attempt to find a balance between the interests of three main intellectual currents.

The first of these currents is the British authority, which was seeking to appear as an enlightening force that protects the vulnerable groups in occupied societies, and these groups are women and girls.

The second was the stream of patriarchal values ​​and Victorian morals (a) which the English applied in large parts of their colonies to sex, family, and public space (for example, Lord Cromer was a prominent leader in the anti-women suffrage front in England).

(8) The third trend is the Muslim elite who came from the countryside to the cities at the end of the nineteenth century.

Therefore, despite the colonial authority’s announcement that it did not intend to interfere in religious and cultural affairs, it established laws to register marriages and divorce cases, and imposed a certain age for marriage, and a punishment for adultery and polygamy, with the help of Muslim sheikhs and judges.

The aim of these laws was to control society, especially women, while withholding them so that they would be the private space in which the provisions of Sharia were applied under the eyes of the English authority and the elders.

Thus, as Azza Hussein wrote, women became “subject to a dual-structured authority, and their daily lives continued to captivate the social power of society, while conflicts related to private property turned them into hostages of the state.”

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This inevitably leads us to question the status of women in Islamic societies before the Personal Status Law, the codification of Sharia and the British occupation.

Here it is worth highlighting what Youssef Rapoport, a professor of social and cultural affairs for Islamic history at Queen Mary University in Britain, wrote in his book “Marriage, Money and Divorce in the Medieval Islamic Society.”

While discussing the reasons for the increase in divorce and khul’ cases in the Mamluk society in Cairo, Damascus and Jerusalem, the writer argues that this would not have happened without the availability of a large degree of economic independence for women at that time. Upon divorce or death, in addition to various financial obligations, such as the demand to take the price of the clothing in cash, and other privileges that gave it a better position for negotiating separation.

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Rapoport talked about the development of marriage contracts to become more like commercial partnership contracts, as they included various conditions and a monetary determination of the value of the presented and deferred dowry and how it is paid as debt or annual installments, as well as an estimate of the value of marital alimony from annual clothing to the "daily expenses" that some wives stipulated.

But the most important thing is that the author makes it clear that the Sharia courts, judges and jurists were keen not to interfere in these settlements except to a small extent, and the authority did not intervene except in the case of resolving violent family disputes and inflicting penalties on husbands convicted of lack of alimony or violence with wives.

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Jurists, reformers and preachers in that society played a key role in creating what Wael Hallaq called “discipline techniques,” meaning that what people were brought up on from the sciences of Sharia and heard from Sharia judges and muftis constituted in itself general control processes, along with the marriage contracts that Shari'a judges supervised it and guaranteed women's rights.

After codification, the matter was limited to one formula for the marriage contract, and the state nationalized the role of Sharia judges, and even abolished Sharia courts and controlled fatwas to issue only what corresponds to “state Islam.”

As for the personal status law, it became a purely tool in the hands of the authority to control society and not to preserve the rights of wives and husbands.

Thus, Sharia oppressed women, but it is not Islamic law, but rather the Sharia established by the state, its sheikhs and its elite.

Civil status laws have never been neutral, but they have always been influenced by the interests and personal ends of the elites who established them.

Marriage in Islam does not require more than acceptance, testimony and publicity, then documentation comes as an extra regulatory step, while rights are preserved by the provisions of Sharia in their huge diversity.

On the contrary, civil procedures are full of bureaucratic steps, and thus complicate the file of marriage and the lives of both spouses, and women in particular.

And here specifically, the problem of the law’s oppression of women appears, because it did not aim to do justice to them in the first place as much as it aimed to establish control and tighten control over society.

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margins

a.

Victorian Morality is a summary of the moral views of the middle class in nineteenth-century Britain during the Victorian era, a conservative evangelical morality that upholds family values ​​and the application of good morals as the custom of middle-class British society.

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