Family Law with Justice for All: A Dream Yet to Become a Reality

by Suad Hamada
– Bahrain –

Bahraini women facing divorce, child custody or alimony disputes walk with heavy hearts and slow steps into Shariah Courts, fearing humiliation and injustice from judges in the only court system that rules over these issues. These women know they have no legal way to challenge arbitrary, inconsistent and unjust verdicts because Bahraini civil law doesn’t have any jurisdiction over Shariah Court verdicts.

Two separate Islamic courts, each representing the laws of either the Sunni or the Shia Islamic sects, enforce somewhat divergent interpretations, but still they are the only arbiter when it comes to marriage, divorce, child custody and inheritance. In general, the original marriage contract determines which court will exercise jurisdiction. However, if the contract does not address this issue, the court representing the husband’s sect will have jurisdiction.Shiite divorced mothers lose custody of their sons at the age of seven and that of their daughters at nine, while Sunni mothers get custody of their daughters until they are married and sons until the age of majority.

Hanan Mohammed can’t forget what a bitter experience she had in the Shariah courts when she went there to seek an increase in her inadequate alimony. The judge who “avoided any eye contact” not only declined to increase the amount of her alimony, even though he knew that her ex-husband had gotten a sizable salary increase, but he was openly hostile and rude to her, with no provocation. She says her rights have been violated and that she feels “humiliated” by the encounter.

Majida, 32, whose 12-year marriage was annulled, was deprived of her children and sent back to her family home following a decision by an Islamic court.

The website Women Living under Muslim Laws quotes several Bahraini women’s evaluations of the Shariah courts as the only legal option for resolution of family disputes:

Afaf al-Jamri, a Shiite activist and a member of the main Islamic National Accord Association, supports a proposed new Personal Status or family law. “This code is a necessity and a fundamental demand for women,” she says.

“The situation of many Bahraini women is tragic. Each neighborhood has an average of four women thrown on the street by their husbands after, say, 30 years of marriage just because they wanted to have younger wives.”

Jamri also highlights the plight of many women when it comes to monthly alimony.

“Judges delay cases for years and years leaving many women without alimony. And then after years of suffering they receive 30 dinars ($11USD) per child,” she said.

A government fund was created recently to help women awaiting Islamic court decisions on alimony, according to another activist Mariam al-Ruwei, who is in favor of the family law.

Although Bahrain has a population of 650,000, the majority of whom are Shiite Muslims, the kingdom is ruled by the Sunni Al-Khalifa dynasty, which is considered progressive and open-minded when it comes to women’s rights. Under King Hamad ibn Isa al-Khalifah, the constitution was amended in 2002, giving women the right to vote and to stand as candidates in national elections for the first time.

For the past twenty-five years, women activists and NGOs have been calling for the drafting of a modern code of family law that will be fair to both sexes, one that will regulate judgments in all legal cases related to marriage, divorce, alimony, custody and inheritances. However, such demands have fallen on deaf ears from officials who avoid antagonizing the powerful Sunni and Shiite conservative scholars who are the judges in the Sharia courts.

Although Bahrain has been updating its criminal, legal and commercial laws, the implementation of the family or Personal Status law is still far from becoming a reality.

The government reacted late in 2004 to support implementation of the new law. In November 2005, the Supreme Council for Women (SCW), chaired by Sheikha Sabeeka bint Ibrahim Al-Khalifa, the wife of the Emir, sponsored a bill to pass a personal status law that would still be based on the Sharia. In alliance with many women’s rights activists, the Supreme Council began a campaign for change. Highlighting the positives in the law, it organized demonstrations, put up posters across the island and carried out a series of media interviews with women’s rights activists who supported the new law.

The result was devastating: Islamic scholars, mainly Shiite, vehemently opposed the proposal. They organized thousands of female Shiite villagers who engaged in rallies calling for the termination of the campaign. Few of those women understood what the new law proposed or what its benefits might be, but they participated to avoid upsetting their religious leaders. Some conservative women even feared that the law would be the end of the Shariah judgments.

As the vocal activist Ghada Jamshir, named by Forbes magazine as one of the “ten most effective women in the Arab world” comments, “The clerics are opposed to the law because it limits their powers. They would be overridden by legislation and would no longer be able to issue verdicts according to their whims.”

Eventually, the government called off the campaign. After a year a draft law was referred to the parliament but it has yet to be reviewed or deliberated on. Shiite and Sunni scholars are against MPs approving legislation that would affect their control over family law; they are not at all happy that it was drafted without their approval.

The fear is that the government might push through a family law that won’t meet either the expectations or the needs of citizens, says Afaf al-Jamri, the Shiite activist. “The government was keen to implement the family law, but the one drafted and discussed by the parliament would only generate anger in society. “We are with the law, as it would save women many troubles at Shariah Courts, but it should be trusted by common men.”

She says that a new law alone wouldn’t improve the situation as there is a need for massive reforms in the judiciary system, especially in the Shariah courts and its selection procedures for judges.

“The Shiite Scholars Council and some Sunni scholars such as Dr Naji Al Arabi oppose it,” she says. “Those men have power and influence the public, therefore the government should try to win their approval with a law that is supported by all.”

The Supreme Council of Women’s (SCW ) General Secretary, Lulwa Al Awadi, admits that the idea of a unified family law has created conflicts between NGOs and Islamic leaders.

Al Awadi says that the SCW was negotiating with the government to stop MPs from making amendments without consulting leading Sunni and Shiite judges and scholars. She says people want to be sure that the law is derived from Islamic teaching.

Lawyer Sami Siyadi says that the proposed law wasn’t a way to stop following Islam, but rather was designed to regulate judgments and avoid discrimination against women in the Shariah Courts.

He says that since Bahrain was an Islamic state with all its laws derived from the principles of religion, therefore the family law would be no exception. “The penal code contains a section on crimes against Islam and family, ratified in 1976. It has been updated many times since, and none of the amendments clashes with Islamic principles.”

Siyadi says Shariah judges face difficulties passing judgments: they have to search and search the religious books for the relevant guidance.Their jobs would be easier if all Islamic regulations were incorporated under one law.

“The new family law would specify what conditions apply to marriage and divorce, alimony, child custody and inheritance. That would be better than depending on individual judges’ opinions,” he says. “Life is complicated, so leaving judgments in the hands of judges without the guidance of specific laws is difficult and unrealistic.”

The proposed family law is generating mixed reactions. However, those who support and those who oppose its implementation both agree that there are many things wrong with the judgment process in the Shariah courts that must be corrected.

About the Author

Suad Hamada has been working as a journalist since 1997. Her writing focuses on politics and women’s empowerment in Bahrain and the Arab region. She has been participating in national campaigns for the elimination of discriminations against Bahraini females.