Gender Justice and Legal Reform in Egypt

Negotiating Muslim Family Law

Mulki al-Sharmani

• Publisher: The American University in Cairo Press
• Year: 2017
• ISBN:
  9781617977831
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

In Egypt's modern history, reform of personal status laws has often formed an integral part of political, cultural, and religious contestations among different factions of society. From the beginning of the twenty-first century, two significant reforms were introduced in Egyptian personal status laws: women's right to petition for no-fault judicial divorce law (khul') and the new mediation-based family courts. Legal Reform and Gender Justice examines the interplay between legal reform and gender norms and practices. It examines the processes of advocating for, and contesting the khul' and new family courts laws, shedding light on the agendas and strategies of the various actors involved. It also examines the ways in which women and men have made use of these legal reforms; how judges and other court personnel have interpreted and implemented them; and how the reforms may have impacted women and men's understandings, expectations, and strategies when navigating marriage and spousal roles.Drawing on an extensive four-year field study, Al-Sharmani highlights the complexities and mixed impacts of legal reform, not only as a mechanism of claiming gender rights but also as a system of meanings that shape, destabilize, or transform gender norms and practices.

1

The New Family Courts: Actors, Agendas, and Goals

It [family court] is about a different legislative and judicial philosophy that is implemented in separate premises, where it is quiet, friendly, and reassuring for families and children.

—Laila Takla, Mahakim al-usra: qadaya shaghalatni (Family Courts: Causes that Preoccupied Me), 2004.

In 2002, Laila Takla—a prominent Egyptian lawyer, academic, former politician, and public thinker—published the first edition of her book on family courts. In it, she laid out her vision and passionate arguments for establishing a specialized and unified court system that would handle all family disputes. Takla argued that such a court system was based on a philosophy that foregrounds the well-being of the children and family through participatory, collaborative, and mediation-centered legal processes. The publication of Takla’s book was part of her initiative to promote the establishment of specialized, mediation-based family courts in the country. Takla had also proposed the initiative earlier through a series of articles in the daily newspaper al-Ahram.¹

The Association for the Union of Egyptian Women Lawyers, the nongovernmental organization that Takla was directing, presented a proposal for the new family courts to the Committee for Recommendations at the parliament. Takla also lobbied the National Council for Childhood and Motherhood (NCCM)² and the National Council for Women (NCW),³ specifically the legislative committee of the latter. In 2001, the NCCM was the first governmental organization to take the lead in supporting the initiative. It organized a meeting where Takla presented her arguments for the new family courts. The meeting was organized for an audience of women’s rights activists, other civil society actors, judges, lawyers, legislators, and government officials. Another speaker in this meeting was the Australian senior judge of family courts Alyster Nicholson, who gave a presentation about the Australian model of family courts. As a result of this meeting, a joint committee was established to take the initiative further. The committee members were selected from the NCCM, the NCW, the Ministry of Justice, as well as the Association for the Union of Egyptian Women Lawyers. The committee consisted of two task forces that were entrusted with organizing further meetings to study the initiative from both social and legal perspectives and propose specific ideas for the new legislation and the requirements of the new courts system.

In addition, a number of influential public figures lent support to Takla in pushing the initiative forward by organizing a series of expert meetings and workshops. These figures included Mohamed Fathy Naguib, chief judge of the Supreme Constitutional Court (SCC); Adel Sadek, the well-known Egyptian psychiatrist; Abdel Aziz al-Guindi, the attorney general at the time; Judge Mahmoud Ghoneim from the Judiciary Unit at the SCC; as well as the prominent lawyer and women’s rights activist Mona Zulficar. The latter two were also members of the legislative committee at the NCW, which led the coordination and monitoring work during the period of drafting the new law and presenting it to the parliament.

On March 15, 2004, PSL No. 10 of the new family courts was published in the Official Gazette. That same year, Takla published the second edition of her book on family courts with a detailed commentary on the new law, as well as her critiques of public and legal opinions that perceived the new courts system simply as a mechanism of modernizing and making efficient the legal procedures in personal status cases, or as a legal tool of expanding and strengthening women’s rights (Takla 2004).

This chapter traces the efforts of the main actors who spearheaded the establishment of the new family courts. I examine the vision and goals of Laila Takla, the key figure who led this initiative.⁴ I also shed light on the goals and roles of other actors who adopted Takla’s initiative and pushed for the promulgation of PSL No. 10 such as the NCW, the NCCM, the Women’s Committee at the National Democratic Party (NDP), and prominent lawyers and women’s rights activists who worked closely with state actors to pursue legal reforms with the goal of strengthening and expanding women’s rights in the family domain. My aim is to shed light on the varied (and sometimes divergent) understandings and aims of the different actors who were involved in these efforts, as well as the rushed and top-down process through which the new law was codified, resulting in the establishment of a court system with challenges and contradictions. I draw on data collected from interviews with key actors who lobbied for or facilitated the establishment of the new family courts. The interviewees were, for example, members of the legislative committee at the NCW, the Women’s Committee at the NDP, prominent lawyers and judges, women scholars and politicians, and women’s rights activists.

Therapeutic and Problem-Solving Family Justice: A Global Trend

Laila Takla’s vision of family courts is situated in a global trend in the legal field toward mediation-based resolution of family disputes. The global movement to promote mediation as an alternative mechanism of dispute resolution dates to the 1970s (Liebmann 2000). In the subsequent four decades, mediation has played a role—in varying ways—in different legal systems in Europe, North America, Australia, and South Asia (particularly, India and Bangladesh). In Australia, for instance, mediation is widely promoted as a legal option that is provided by different private organizations. Moreover, state courts arrange ‘settlement weeks’ in which free mediation services are provided. Furthermore, Australia paved the way for specialized family courts with the establishment of its own mediation-based family courts in 1975. In the UK, mediation was voluntary and provided by private organizations in the 1970s, whereas in the 1980s the state, through its courts, also started to provide ‘conciliation’ services. While mediation is not mandatory in the UK, courts have the jurisdiction to obligate potential disputants to attend a compulsory mediation session. Also, British lawyers are required to tell their clients about the option of mediation. In Canada, mediation has also been made an available option, whereas in the USA it has become an integral part of the legal system (Shaffer 1988).

But it was in the 2000s that the paradigmatic shift to specialized and unified mediation-based family courts took center stage. Jane Singer, professor of law at the University of Maryland, lays out a number of premises on which this new paradigm is based (Singer 2009). One premise is that a participatory, mediation-based approach rather than an adversarial, litigation-centered one is suited for the resolution of family disputes because of the distinct nature of these disputes. This is because an adversarial approach tends to make disputants more contentious while parties in family disputes need to work together because of their family bonds, such as in the case of co-parenting a child. Another premise is that what underlies family disputes are not only legal factors but also social ones, and hence, the roles that family courts need to play in such disputes and the services they should provide are both social and legal. A third premise is that the role of judges in these family courts is multilayered, extending beyond adjudication to management of the conflict through collaborative and participatory mechanisms. And precisely because of the multidimensional roles and services of family courts, they need to be equipped with personnel who have expertise in social work and family counseling, in addition to family law (Singer 2009: 364–65).

Additionally, scholars such as Sanford Katz and David Rottman highlight the advantages of alternative dispute resolution (ADR) in family lawsuits. Rottman, for instance, points out that disputants are more likely to commit to decisions reached through participatory, mediation-based settlements (Rottman 2000). As for Katz, he lists several benefits for mediation such as: the informality and flexibility of this mechanism, which makes it unthreatening to disputing parties; its suitability for creating the space to address the emotional aspects of disputes; and lastly, its time and cost efficiency (Katz 1994: 53–54).

But the mediation-based court system has also been critiqued, particularly in regard to family disputes. According to Judge Gerald W. Hardcastle, the central problem with such courts is its underlying ideology of dispensing therapeutic, problem-solving justice. Hardcastle, who has served many years as a family court judge in Nevada, writes in a lengthy article that this new system, because of its focus on therapeutic, problem-solving mechanisms of dispute resolution, risks undermining the role and effectiveness of the court as a neutral and impartial legal institution (2005: 125). In addition, under this new paradigm, states take on a large role (through both the social and legal services that the family courts provide) in family governance, a role that Hardcastle sees as undermining the right of individuals and families to manage their own private affairs and intimate relationships. Judge Hardcastle also cautions that family courts, by taking on psychosocial as well as legal roles, are assuming tasks and functions that are better suited to be carried out by community-based organizations (2005: 122).

This latter critique has also been noted by Jane Singer (2009). Singer sees that despite the many advantages of the new specialized and mediation-based family court system, its underlying philosophy has gendered implications that can disadvantage women in particular. She contends that the notion of harmonious, intact families whose members will always have enduring ties even after the dissolution of marriage often works against women, for example in post-divorce arrangements. Singer notes that American post-divorce and co-parenting family court settlements are often premised on the notion that both ex-spouses will stay “deeply involved in each other’s lives” in their capacity as co-parents. But this assumption tends to privilege the non-residential parent (often the father) and disadvantages the residential parent (often the mother), such as in cases when the latter has opportunities to relocate for work or to pursue desirable life opportunities but is restricted in her ability to make that decision due to the co-parenting settlements (Singer 2009: 365–66).

As for mediation, the literature is somewhat divided on whether it works for or against female disputants. There are studies that argue that mediation is beneficial for female disputants because it saves time and effort, and provides these disputants with the space where they can negotiate creatively for a wider range of legal options that may not be available through a process of litigation structured by fixed codes (Coulson 1983; Fuller 1970; MacCabe 2001; Pearson and Thoennes 1984; Roberts 1983; Sander 1984; Silberman 1982).

Other scholars, however, have questioned whether or not mediation in family courts can overcome the gendered power imbalance that often exists between disputants (Bottomley 1984, 1985a, 1985b). Bottomley, for instance, warns that too much focus on the best interest of children and preservation of amicable family relations, which characterize many mediation practices and pro-mediation literature, leads to undermining the individual rights of female disputants. Bottomley and other critics also point out that alternative mechanisms of dispute resolution that may be perceived as beneficial to women—because of their informality, flexibility, and autonomy—may lack the procedural safeguards to ensure a transparent and just legal process, thus risking women’s loss of the guarantee of equality in front of the law (Bottomley 1985b; Shaffer 1988). There are critics who also found that mediation undermines women’s access to justice, but for a very different reason than previously mentioned. This reason is that mediation in some contexts is too regulated by abstract state laws and procedures, and thus fails to provide the space for female disputants to exercise agency in seeking justice (Abel 1982; O’Donovan 1985).

There is also a considerable body of literature that argues that mediation is particularly detrimental to female disputants in domestic violence cases. A common finding in this literature has been that women in such cases are hindered by the fear of abuse or violence and hence are unable to exercise agency in the mediation sessions (Field 2004; Lerman 1984; Strang and Braithwaite 2002). Some of the studies in this literature also cite particular patterns of familial relations and cultural/societal norms that may function as additional factors that lead women to be passive and deferring to the opinions and advice of others in mediation sessions, hence diminishing mediation as a mechanism of fair and just dispute resolution for women (Picket 1991; Weingarten and Douvan 1985).

In her ethnographic research on mediation-based family courts in Kolkata, India, Srimati Basu also questions whether this new system can facilitate tangible feminist legal reform (Basu 2012). Basu found that the mechanisms of family courts—in the absence of reform in the substantive laws regulating gender relations and rights, as well as in the context of dominant patriarchal cultural norms—could, in fact, undermine women’s pursuit of justice. For instance, the court-based mediators tend to understand ‘conciliation’ not simply as an alternative mode of dispute resolution (to adversarial, litigation-centered approach), but more as the reconciliation of the disputants and the salvaging of marriages. Basu also observed that some judges, again because of their problem-solving roles in these courts, restricted the space for female disputants to exercise agency in the process. Basu’s conclusion was that mediation and problem-oriented mechanisms of family dispute resolution in Indian family courts often reflected and reenforced dominant patriarchal gender norms, even in cases when mediators and judges sided with the female disputants. Basu’s larger point is that while mediation-based family courts may have some benefits for women—such as accessibility and affordability of the legal systems—it is important to be cognizant of the gendered limitations and limits of this legal reform.

Egyptian Family Courts: Pathways to Family Wellbeing, Gender Justice, and Modern State Governance?

It is within this larger global context of the growing but also contested popularity and desirability of specialized, mediation-based family courts that we need to understand Laila Takla’s initiative for the establishment of similar family courts in Egypt. Takla espoused this global model of therapeutic, problem-solving, family-oriented court system. Having done volunteer work as a young lawyer in Egyptian juvenile courts and having closely observed the court circuits for personal status cases, Takla believed that the model of family courts was the much-needed answer to tackle the problem of stressful, contentious, and family-adverse atmosphere and procedures in courtrooms (2004: 104). In fact, Takla begins her book on family courts with a dedication that reads, “To every Egyptian family, for whom family courts are established” (2004: 3). This dedication is a good introduction to Takla’s vision of the new family courts. Takla emphasizes that the establishment of family courts is neither a luxury nor is it simply about modernizing the legal system (2004: 9). Rather, the need for these new courts is based on an understanding that sees the well-being of the family as the central consideration guiding the legal processes in personal status cases. And because family disputes are of a distinct nature, according to Takla, state institutions’ involvement in the resolution of these disputes warrants the establishment of a specialized unified court system. The aim of this new system is first and foremost to resolve family disputes through non-litigation mechanisms, such as reconciliation and mediation, undertaken by well-trained court personnel. If alternative dispute resolution mechanisms fail, then the dispute proceeds to the litigation stage. In this stage, the role of the judge is not merely to adjudicate between disputants in a detached manner and simply grant claimants their legal rights. Rather, the judge is also to assume the role of a problem-solver who aims at resolving the dispute in a manner that protects the best interests of children and maintains healthy family relations as much as possible, regardless of the outcome of the lawsuit.

Takla stresses that the kind of justice provided by the new family courts system is one that “takes off its blinders to see the children and all the parties concerned, to hear what they say, and to feel what they feel” (2004: 11; my emphasis). Hence, it is necessary to have well-trained court personnel who are specialists in family affairs and who understand and espouse the philosophy of this legal system. The rationale for establishing specialized family courts, Takla argues, is not only to support women, but the whole family. This point is strongly made in Takla’s following quote: “family courts are not established for women, but for women and men, for the wife, the husband, the son, the brother, the children, and the relatives” (2004: 12). Takla sees that one of the important strengths of this new courts system is its participatory processes, which create space for disputants and court personnel to partake collectively in the resolution of the dispute. In short, Takla sees the new family courts system as one that provides therapeutic, problem-solving justice, and hence, a system that addresses not only the legal, but also the social aspects of the conflict.

While Takla viewed the new family courts as primarily a mechanism for delivering family-oriented justice, other influential advocates of the new courts system pursued this legal reform for different goals. These advocates were both individual actors and state institutions. The individual actors were a group of prominent women’s rights advocates who adopted the initiative of the new family courts as part of their larger goal of lobbying for a series of legal reforms to address the inequalities and challenges that women faced in the family domain. These advocates pursued their goal through their roles in state institutions. But these institutions also had their own goals for pushing for legal reforms such as the new family courts. For them, the new courts system was part of a state project aimed at realizing the goals of development and modern governance intertwined with state feminism,⁵ a project influenced in part by factors such as the country’s international standing and its commitments vis-à-vis international organizations, international conventions, and aid donors. These state institutions were the NCW, the NDP, and the NCCM.

Among these prominent women’s rights advocates were Mona Zulficar. Zulficar is a legal expert in investment banking law and the cofounder of and senior partner at the Shalakany Law Office. She served on numerous international committees working on gender and women’s rights. Since the late 1980s, Zulficar had been a key figure in a relatively loose coalition of women’s rights activists, academics, senior legal figures, government officials, and public thinkers who lobbied for a series of new personal status laws with the goal of addressing gender-based inequalities faced by women (Singerman 2005). The resultant reforms from these efforts were the new marriage contract, PSL No. 1 of 2000, PSL No. 10 of 2004, PSL No. 11 of 2004, and PSL No. 4 of 2005. Zulficar had also been a longtime key member of the NCW legislative committee.

The late Zeinab Radwan and Fawzeya Abdel-Sattar were two other prominent professional women who, like Zulficar, made use of their roles in the NCW (and the NDP) to lobby for gender-sensitive legal reforms. Radwan was ...