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Personal Status Laws in Morocco and Tunisia: A Comparative Exploration of the Possibilities for Equality-Enhancing Reform in Bangladesh

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Abstract

This paper focuses on successful reform strategies invoked in parts of the Muslim world to address issues of gender inequality in the context of Islamic personal law. It traces the development of personal status laws in Tunisia and Morocco, exploring the models they offer in initiating equality-enhancing reforms in Bangladesh, where a secular and equality-based reform approach conflicts with Islamic-based conservatism. Recent landmark family law reforms in Morocco show the possibility of achieving ‘women-friendly’ reforms within an Islamic legal framework. Moreover, the Tunisian Personal Status Code, with its successive reforms, shows that a gender equality-based model of personal law can be successfully integrated into the Muslim way of life. This study examines the response of Muslim societies to equality-based reforms and differences in approach in initiating them. The paper maps these sometimes competing approaches, locating them within contemporary feminist debates related to gender equality in the East and West.

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Notes

  1. Code du Statut Personnel: www.jurisitetunisie.com/tunisie/codes/csp/Menu.html (accessed 9 September 2007).

  2. Equality is essentialist in that it tends to rely on the construction of a generic female identity that denies significant differences between women derived from race, ethnic background, class, sexuality etc. and hence assumes identical experiences and interests among women.

  3. Mojab (2001, p. 139), however, observes that “unlike Western liberalism, which despite its shortcomings, has succeeded in instituting an extensive regime of rights guaranteeing legal equality, ‘Islamic feminism’ is not even ambitious enough to demand universal formal equality”.

  4. See also Tamimi (2001) for an overview and critique of Al-Ghannouchi’s work.

  5. Mahmood (2003, p. 19) observes: “we do not ask, for example, what would it mean to take the resources of Islamic traditions and question many of the liberal political categories and principles for the contradictions and problems they embody?”

  6. Moghissi (2000, pp. 141–142) observes that although the Qur’an makes men and women equal in the eyes of Allah, it ascribes them different rights, roles and obligations. Shari’a-based equality thus works against women and non-Muslims as it accords them inferior status and prescribes sexual hierarchy within the family.

  7. Muslims are broadly divided into two main sects, Sunni and Shia, resulting from a political dispute over succession following the Prophet’s death. The four main schools of the Sunni sect are the Hanafi, Hanbali, Maliki and Shafii schools. While the schools agree on certain fundamental legal issues, their various interpretations of the sources of Shari’a have given rise to different rules on some points of law.

  8. The legal history of these two countries is similar to that of those in the Indian Subcontinent, including Bangladesh, India and Pakistan. While, under British rule, the legal system of these countries underwent reforms based on secular ideals, the sphere of personal laws was left untouched for fear of a political backlash. In all three countries of the Subcontinent, religious laws regulate the family sphere.

  9. For details of the Code, see Kelly (1996) and the Law and Religion Program of Emory University, Study of Islamic Family Law (IFL), http://www.law.emory.edu/ifl/legal/morocco.htm#text (accessed 8 September 2008).

  10. Kelly (1996) observes that Bourguiba, then President of Tunisia, played a pivotal role in securing the rights of women under the Code. Bourguiba was hugely influenced by the teachings of liberals such as Jamal al-Dil al-Afgani and Khayr al-Din Pasha al-Tunisi, who believed that women’s backward position in some Muslim societies was due to the failure of these societies to continue to evolve with time, and not to any flaw inherent within Islam.

  11. Article 6 states: “All citizens have the same rights and the same duties. They are equal before the law”. Articles 20 and 21 recognise that women have the right to vote and stand for public office.

  12. See http://www.ilo.org/public/english/employment/gems/eeo/law/maroc/cons.htm (accessed 8 September 2008).

  13. Bordat and Kouzzi (2004) attribute the reforms’ “smooth passage” to the changed political environment following the May 2003 terrorist attacks in Casablanca, which implicated Islamist groups. This in effect muted the religious opposition to the revision of the Code.

  14. The full text of the speech is available online at: http://www.wluml.org/english/newsfulltxt.shtml?cmd[157]=x-157-21950%20&cmd[189]=x-189-21950#top (accessed 8 September 2008).

  15. See http://www.globalrights.org/morocco for an unofficial translation of the Moudawana; Association Démocratique des Femmes du Maroc (2004); Law and Religion Program of Emory University, supra n 9.

  16. Supra n 14.

  17. According to Article 26, the Constitution is the supreme law, operating as a benchmark for determining the validity of all other laws. Article 28 guarantees equal status and rights to all citizens, irrespective of religion, race, caste or sex.

  18. Muslim Personal Law (Shari’at) Application Act (1937) (XXVI of 1937) 9 PC 404, 11 BC 387.

  19. (VIII of 1961) 14 PC 67.

  20. See English translation of the Holy Qur’an by Abdullah Yusuf Ali, http://www.islamicity.com/mosque/Surai.htm (accessed 8 September 2008).

  21. Application for such permission must be made to the Chairman of the Union Council (a unit of the local government) who then constitutes an Arbitration Council consisting of representatives from both the parties. If the Council is satisfied that the proposed marriage is necessary and just, it may grant the permission requested. A party aggrieved by the decision may file a revision application to the Sub-Divisional officer, a bureaucrat at the local government level, whose decision is final and cannot be challenged in any court.

  22. MFLO, Section 6.

  23. MFLO, Section 13.

  24. As discussed below, the husband’s power to initiate unilateral divorce without adjudication or showing any reason remains intact under the Ordinance.

  25. Polygamy is prohibited; offenders are liable to a prison sentence of one year and/or a fine, according to Article 18 of the Code.

  26. According to Article 41, “the court will not authorize polygamy: if an exceptional and objective justification is not proven or if the man does not have sufficient resources to support the two families and guarantee all maintenance rights, accommodation and equality in all aspects of life”.

  27. When the wife initiates divorce and provides consideration (e.g. surrender of her dower) to the husband for her release, it is called khula. When dissolution is effected by the agreement of the parties it is known as mubarat.

  28. Dissolution of Muslim Marriages Act 1939, Section 2.

  29. PLD [1959] (WP) Lahore 566.

  30. PLD [1967] SC 97.

  31. [1980] 32 DLR 294.

  32. MFLO, Section 7(1).

  33. Section 7(3).

  34. Section 7(4).

  35. See supra n 9.

  36. Ibid.

  37. See supra n 15.

  38. Ibid.

  39. Ibid.

  40. The Constitution (Eighth Amendment) Act (1988). This amendment was later challenged by various women’s groups as being inconsistent with the spirit of the Constitution and with various UN Conventions.

  41. [2000] 5 BLC 660–661.

  42. [1997] 17 BLD 4.

  43. For example, Frohmann and Mertz (1994) examine whether legal reforms regarding violence against women and prosecution of violence cases in the last two decades have improved women’s experience and suggest that further serious attention to the socio-cultural construction and context of legal practice is a crucial step for future reform efforts.

  44. Larson (1993) outlines some of the concerns of this ‘third wave’, and questions whether law can be used to effect social change.

  45. According to official estimates, 42% of urban women and 82% of rural women in Morocco are illiterate. See supra n 15 and Maddy-Weitzman (2005).

  46. Sobhan (1978) observes that since Islamic laws have in the Subcontinent been further modified, not only by statutes and case law but by various customs, one should not confuse Muslim women’s status in Bangladesh with that of women’s status in Islam as such, although to a certain extent one influences the other.

  47. Other examples of the use of takhayyur include the Jordanian Law of Family Rights 1951 and Syrian Law of Personal Rights 1953.

  48. (VIII of 1939) 9 PC 716.

  49. See An-Na’im (1990), who suggests expanding the scope of ijtihad to effect even reinterpretation of the Qur’an and Hadith where necessary.

  50. Editor, Daily Banglabazar Patrika and two others v District Magistrate and Deputy Commissioner, Naogaon (2000) Writ Petition No. 5897.

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Acknowledgement

I am indebted to Professor Joanne Conaghan for her valuable comments and encouragement.

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  1. School of Law, University of Reading, Foxhill House, Whiteknights Road, Reading, RG6 7BA, UK

    Nowrin Tamanna

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Tamanna, N. Personal Status Laws in Morocco and Tunisia: A Comparative Exploration of the Possibilities for Equality-Enhancing Reform in Bangladesh. Fem Leg Stud 16, 323–343 (2008). https://doi.org/10.1007/s10691-008-9099-9

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