Feminist Legal Studies

, 16:323

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

Authors

    • School of LawUniversity of Reading
Article

DOI: 10.1007/s10691-008-9099-9

Cite this article as:
Tamanna, N. Fem Leg Stud (2008) 16: 323. doi:10.1007/s10691-008-9099-9

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.

Keywords

BangladeshEqualityIslamLaw reformMoroccoPersonal lawTunisia

Introduction

On 25 January 2004, the Moroccan government adopted a landmark family law granting women new rights regarding marriage, divorce and custody of children. The new legislation replaced provisions included in the Moudawana, Morocco’s Personal Status Code, encompassing family law governing women’s legal status. The reform resulted from longstanding demands and advocacy efforts by women’s groups inside Morocco and across Muslim societies generally.

These reforms arguably elevated women’s status in the eyes of the law and succeeded in bringing Moroccan personal law closer to the level of the Tunisian Code of Personal Status.1 The reform of Moroccan personal law is significant in the context of women’s rights in North Africa and the women’s movement in general. One important outcome is that Moroccan and Tunisian reforms can now serve as potential models for other Muslim countries concerned with equality-seeking reforms. To initiate reforms in any Muslim society, it is arguably politically imperative that these reforms accord with the socio-cultural values of that society. It is therefore important to study and compare approaches and policies that have proved effective in similar contexts. This study may be particularly useful in informing strategies to initiate reforms of religious-based personal law in Bangladesh, which undermines the right to gender equality guaranteed by the state’s constitution.

This paper aims to challenge common assumptions in some parts of the Muslim world that religious-based personal laws are not amenable to equality-seeking reforms. Following an overview of contemporary feminist engagement with equality, both as a norm and strategic goal, and responses to such engagement in an Islamic context, it traces reforms in the sphere of personal laws in Tunisia and Morocco, exploring their prospects for contributing to an equality-based reform approach in Bangladesh. Notable features of personal law in Bangladesh and the issue of equality-based reform against the backdrop of present socio-political and cultural discourses are examined. Since the areas covered by personal law are too vast to permit exhaustive citation and examination here, the discussion is confined to two major areas: polygamy and divorce under the present personal status laws of Bangladesh, Morocco and Tunisia.

Strategic Engagement with Gender Equality: East Versus West

Before focusing on whether gender equality-based reforms are attainable in a Muslim society, we should consider the concept of equality, both as a norm and strategic goal, in the context of feminist legal scholarship aimed at improving women’s legal status globally. Although equality is a central concept in feminist legal scholarship, there have also been ongoing debates among feminists regarding what legal equality truly entails and how it might be attained in different socio-economic and cultural contexts. Feminist scholars and activists have long been critical of the strategic value of the liberal concept of ‘formal equality’ that invokes notions of sameness and difference to determine the application of equality norms.

Formal equality arguably fails to address underlying disadvantages and structural inequalities which belie the appearance of equality (understood in terms of sameness of treatment), thus perpetuating prevailing patterns of social, economic and cultural disadvantage. Moreover, developments in critical race theory (Harris 1990; Wing 2000; Hunter 1996), building upon women’s experiences internationally, have raised questions about the strategic value of equality in non-white/non-Western contexts by highlighting the forced essentialism common in invocations of equality as sameness, and in which equality operates normatively to affirm and promote Western values and lifestyles (Jhappan 1998).2 The concern is that equality may not accommodate the needs and aspirations of women from different social, cultural and geographical backgrounds.

To combat problems arising from applications of formal equality, Western feminist scholarship has shifted its attention to developing a more substantive understanding of equality that focuses on the social relationships, practices, norms, and institutions which use ‘difference’ to justify and perpetuate disadvantage, and on ways in which such disadvantageous practices can be changed. According to the substantive approach, the primary purpose of an equality provision should be to eradicate past patterns of disadvantage and to interpret discrimination within the context of past and existing social, political and economic disparities (Jagwanth and Murray 2002).

In Muslim societies, ranging from North Africa to South Asia, the concept of gender equality has also elicited a wide range of interpretations and opinions—from the argument that gender equality is fully compatible with Islam to the claim that gender equality is a product of Western cultural imperialism and represents values incompatible with Islam. On the one hand, conservatives describe those who advocate equality-based reforms as agents of the West, aiming to destroy Islam in the name of promoting gender equality. On the other, some scholars reject traditional interpretations of the Islamic sources, concluding that authentic Islamic doctrine actually supports reforms of Shari’a rules designed to ensure gender equality (Hassan 1987; Mernisssi 1991; Al-Hibri 2000).

To understand the position that Islamic law is compatible with gender equality, we should note that the concept of equality has a different connotation for these scholars than for contemporary Western feminist scholars engaged with equality debates. Compared to Western feminist movements, the engagement of Islamic feminists with equality-based reform is narrower in both theory and practice. While their Western counterparts are concerned with developing more sophisticated understandings of equality, as evidenced by substantive equality approaches, Islamic feminists concentrate on the struggle for inclusion in public and private life on the same terms as men. To eradicate some of the glaring inequalities and improve women’s status, Islamic feminist scholars promote egalitarian ethics and women-friendly verses in the Qur’an and Hadith, using reinterpretation of the sources of Islamic law to secure equal rights in public and private spheres. They are thus demanding equality in law in a similar way that liberal feminists once advocated formal equality.3

Scholars like Mahmood (2001, 2003, 2006), however, critique reformists such as Al-Hibri (2000) and Al-Ghannouchi (2000)4 who explored whether liberal conceptions such as equality and human rights can be incorporated into Islam. According to Mahmood (2003), in these explorations Islam bears the burden of proving its compatibility with liberal ideals, and the line of questioning is almost never reversed.5 The reformists often take liberal conceptions such as secularism and equality at face value without considering the contradictions, struggles and problems that these ideals actually embody. Given the fraught history of some of these concepts, it may be worth pursuing what Islam might have to offer in embodying an “ethic that respects dissent and honours the right to adhere to different religious or non-religious convictions” (Mahmood 2003, p. 19).

There remains yet another view which maintains that a reform project or discourse carried out within an Islamic framework is not capable of bringing any substantive change in the status of women in the direction of equality (Moghissi 2000; Shahidian 1994). Moghissi (2000) critiques the reformist project that focuses on a re-reading of the Qur’an and other sources of Islam, although she does so from a position different from that of Mahmood’s mentioned above. She observes that while the social, economic or political implications of Islam may vary in different Muslim societies, “no amount of twisting and bending can reconcile the Qur’anic injunctions with the idea of gender equality” (Moghissi 2000, pp. 140–141).6 While Mahmood advocates turning the gaze back to Islam and reviving notions of equality and tolerance that are authentic to Islam, Moghissi observes that by depicting Islam as the only framework under which all Muslim women can effectively fight for justice and equality, women in Muslim societies are reduced to a single ‘Islamic’ identity which becomes the ‘one size fits all’ robe that all women and men regardless of their political or religious views are forced to wear (Moghissi 2000, p. 135). This in turn obscures women’s struggles that do not invoke religious principles and norms and silences the secular voices raised against religious fundamentalism or oppressive religious norms in some parts of the Muslim world. Supporters of this view (which, as discussed in the later part of the article, include some women’s groups in Bangladesh) argue that instead of reforms within the framework of Islam, the reformists should opt for a secular legal regime based on equality in which laws will be applied irrespective of religious beliefs and gender.

As will be seen in the following discussion, over the years, Tunisia has managed to demonstrate a reform approach that is largely secular while Morocco opted for an equality-enhancing reform approach within the framework of Islam. Interestingly, in Bangladesh, one may see a strong presence of both these approaches (Islam-based and secular-based) in reform discourse. The later sections of the article explore which form of equality is emerging as a result of reforms in these countries.

Personal Status Laws in Tunisia, Morocco and Bangladesh

Morocco and Tunisia share a common legacy of Islamic jurisprudence of the Maliki School7 and French legal culture. After achieving independence from France, these two countries had to choose between the French model of codified law enacted by the state and the system of decentralised jurists’ law characterising the pre-colonial period. Both states selected the French model, thus maximising the possibility of centralised state control over the legal system instead of a system under which control over the formulation of laws would have reverted to religious scholars (Mayer 1996, p. 4). In both countries, too, other areas of law have undergone a transformation brought about by colonial influence, while the area of family law was left to be regulated by traditional Islamic law.8 After independence and since, these two countries have been adhering to a family law regime mainly informed by the values and dicta of Islam. In this context, however, while Tunisia opted for a model of family law marked by progressive innovations and interpretations of Islamic dicta, Morocco chose to adhere to and reinstate the classical position prescribed by the Maliki jurists.

Tunisia

After independence in 1956, the first major document developed and adopted by the new republic of Tunisia was the Code of Personal Status.9 The Code introduced dramatic reforms, clearly reflecting the determination of the Tunisian lawmakers to use the law as an instrument of social change and amelioration of the poor status of women.10

The principle of equality is expressly stipulated in the Tunisian Constitution.11 In line with the equality guarantee, the Tunisian Code puts women in an equal position with men in relation to most areas of family life. For example, women have equal duties and responsibilities to men in the running of the family and have equal rights to divorce. Polygamy and the duty of obedience of the wife to the husband—common in some Muslim countries—were abolished in Tunisia. Tunisia’s commitment to ‘gender equality’ also features heavily in its various plans of action (see Ministry of Women and Family Affairs, Tunisia 1999). In its report submitted before the UN Committee, it was affirmed that the Tunisian Code laid the foundations for a private sphere based on the legal equality of men and women (Government of Tunisia 2002). Tunisia’s future policy is thus committed to ensure ‘gender equality’ in both public and private spheres.

Although the Tunisian Code does not contain explicit references to Islam, Islamic values and principles have clearly influenced its content (Mayer 1996). The reforms do not completely reject Islamic values and principles but seek to modernise them by using a distinct interpretative approach to Islam that is unique in the Muslim world (see below). Thus, while the Tunisian Code mostly adheres to a secular framework, it retains a conservative ‘Islamist’ stance on issues such as triple divorce, dowry etc., and upholds traditional interpretations concerning inheritance (Collectif 95 Maghreb Egalité 2003). While Tunisian lawmakers have always taken care to approach reforms within the framework of Islam by re-reading the Shari’a, this approach also leaves scope to allow the jurisprudence to revert to a patriarchal and conservative position regarding women’s role in the family (Collectif 95 Maghreb Egalité 2003).

Morocco

After achieving independence from France in 1956, Morocco adopted a code based on Islamic laws to govern behaviour within the family. The gender roles envisaged in the Moroccan Code were opposite to those of the Tunisian Code, reaffirming many of the rules propagated by the classical Maliki jurists and reinforcing patriarchal traditions. The Moroccan Constitution provides that all citizens are equal before the law and affirms its commitment to abide by universal human rights.12 Despite these specific assertions, women in Morocco were subjected to discrimination and disadvantage. For example, under the Moudawana, men were free to engage in polygamy and exercise the power of unilateral divorces. Women, on the other hand, had unequal rights to divorce and limited property and inheritance rights.

Since independence, women’s groups have demanded reforms to the Code, protesting against the disadvantage and discrimination they suffered. Their continued campaigns finally received the government’s attention in 200313 when King Mohamed VI announced reforms to create a “modern Family Law consistent with the spirit of Islam [which] yet eradicates the inequity imposed on women”.14 Finally, on 25 January 2004, the Moroccan government adopted a new law replacing the laws included in the Moudawana.15

The new law, although committing to improve women’s legal position, does not aspire to grant women full equal standing with men in all spheres of family life. This is evident from Mohamed VI’s speech in Parliament stating that one of the objectives of the reform was “to ensure that women enjoy a better and more equitable status” (emphasis added).16 The aim is clearly not equal status but a “better and more equitable” status within the framework of Islam. Thus, unlike their Tunisian counterparts who refrained from making overt reference to Islamic jurisprudence in their Code, Moroccan lawmakers continue to rely on Islam’s egalitarian ethics and dicta while reforming their personal status laws.

Bangladesh

A distinctive feature of the Bangladeshi legal system is a clear division between the general law of the land and personal laws based on religious affiliation. General laws, including the Constitution and other areas of civil and criminal laws, are secular and commonly applied to all citizens. Personal laws, however, are religiously based and differ for different religious communities. In Bangladesh, the issue of women’s rights under the personal laws has been contentious, the crux of the debate being that the personal laws do not subscribe to the gender equality granted by the Constitution.17

The majority of Bangladeshis are Hanafi Muslims to whom the Shari’a-based Muslim law applies.18 Although the rules of Shari’a are often perceived as inflexible, there have been occasional reforms to the Shari’a-based personal law. Some of the most important changes were brought about by the Muslim Family Laws Ordinance (1961).19

Notable Features of Personal Status Laws

Polygamy

Polygamy is a contentious reform issue in many Muslim societies. A principal argument against abolishing it is that it is explicitly sanctioned by the Qur’an and should therefore be tolerated (if not encouraged) in Muslim societies. In support, Verse 4:3 of the Qur’an is often cited:

If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hand possesses. That will be more suitable, to prevent you from doing injustice.20

This is often interpreted as giving permission to Muslim men to marry up to four women simultaneously. But some feminist researchers do not accept this interpretation (e.g. Sobhan 1978). If progressively interpreted, they argue, permission to engage in polygamy is subject to the condition that the man should deal “justly” with all his wives. ‘Justice’ according to them not only means equality in providing food, clothes, residence or money but also equality in love, affection and esteem (Serajuddin 1991, p. 118). Because of the virtual impossibility of men giving equal love, affection and esteem to all their wives, they conclude that Islam does not view polygamy as a norm but an exception.

Bangladeshi Islamic marriage law does not prohibit polygamy altogether but allows for ‘legally sanctioned polygamy’, imposing procedural restrictions on the practice. The major law governing this area is the Muslim Family Laws Ordinance 1961 (MFLO), requiring prior permission of an Arbitration Council before a husband can remarry.21 It further prescribes that a marriage contracted without prior permission is punishable by imprisonment and fine.22 Moreover, unequal treatment between wives by a polygamous husband also constitutes valid grounds for divorce by the wives.23

The Ordinance has been widely criticised for failing to curb polygamy. Critics blame this on loopholes inherent within it. For example, although it is laid down in the Ordinance that marriage without the permission of the Arbitration Council is punishable, it does not declare polygamous marriage itself to be illegal or void. The Ordinance evidently therefore does not affect the husband’s rights in any substantive way but only circumscribes those rights by imposing procedural impediments (Serajuddin 1991). Since a second marriage contrary to the Ordinance remains perfectly valid, it allows men to continue with polygamous marriage by paying the fine. Therefore, penalties prescribed in the Ordinance fail to operate as deterrents (Monsoor 1999). Furthermore, instead of making polygamy subject to a court’s authorisation, the Ordinance leaves it to the decision of non-judicial Arbitration Councils. As these are usually composed of men, their decisions often reflect a bias in favour of husbands in permitting second marriages.

Statistics reveal that permission for a second marriage is hardly ever refused by the Arbitration Council (Serajuddin 1991). Although the Ordinance provides the opportunity of an appeal against the Council’s decision, socio-economic realities in Bangladesh make it very difficult for an aggrieved woman to do so as she often depends on her husband for her subsistence (Monsoor 1999). Also, the first wife’s consent to enter into a second marriage can be extorted in many ways. For example, if the wife does not give consent, her husband can simply divorce her24 and go ahead with another marriage, which often leads to the problem of successive monogamy instead of simultaneous polygamy (Serajuddin 1991, p. 169). Similarly, the wife, although given the right to seek divorce on the ground of polygamy, seldom exercises this right for fear of being left without financial support and protection. In this context it is important to note that although in other Muslim countries, notably in the Middle East, divorce does not carry a stigma, in the Indian Subcontinent it does (Sobhan 1978, p. 23). Studies have highlighted some of these problems. One study has shown: firstly, that women entirely dependent on their husbands have no choice but to give consent; secondly, that refusal to give consent may well result in torture and other forms of violence; thirdly, that since it is the children who suffer most if the husband is punished by law, the wives are reluctant to take their husbands to court (Kamal 2001).

The Tunisian Code has notably prohibited polygamy altogether following progressive interpretations of the Qur’an.25 Tunisian lawmakers based their arguments on recognition that a husband cannot treat his wives equally. Also, a basic principle of Islamic law is that actions ‘permitted’ as opposed to ‘obligatory or recommended’ can be justly restricted on grounds of public interest. Thus, say Tunisian lawmakers, since polygamy is only permitted by the Qur’an—as opposed to obligatory or recommended–it can be regulated or even abolished by the state (Kelly 1996, p. 89, quoting Borrmans 1963).

A significant change in Moroccan law after the recent reform concerns polygamous marriages. Although the new law does not prohibit polygamy, it makes polygamy difficult to practise by subjecting it to judicial authorisation and strict legal conditions.26 According to this law, the judge must ensure that there is no inequity in authorising a second marriage and must be convinced that the husband can treat the second wife and her children on an equal footing with the first, and that they enjoy similar living conditions. Moreover, a woman may impose a condition in the marriage contract requiring that her husband refrain from polygamy. In the absence of such a condition, the first wife must still be informed of her husband’s intent to remarry and the second wife must be informed that he is already married. This would also give the first wife valid grounds to seek divorce due to harms suffered.

Divorce

There are generally three ways to dissolve a marriage under Islamic law: (1) by mutual agreement of the parties (khula or mubarat),27 (2) by the husband’s act (talaq) and (3) by judicial process (faskh).

Islamic divorce law is often criticised for granting arbitrary power to men and for perpetrating injustice against women. The most controversial aspect of Islamic divorce law is perhaps talaq, a husband’s freedom to terminate the marriage unilaterally (Serajuddin 1991). While Islamic law grants men the unilateral right to divorce, the wife’s right is strictly conditional. Bangladeshi law provides a list of specific grounds which a woman must prove to obtain a divorce.28

Furthermore, Bangladeshi courts can grant judicial khula, allowing a woman to obtain a divorce by waiving her financial rights or dower, if the court is satisfied that the differences between the parties are irreconcilable. This has been applied in cases such as Balqis Fatima v Najm-ul-Ikram Qureshi,29 which established that the courts are empowered to grant judicial khula if satisfied that a harmonious married life, as envisaged by Islam, is not possible. This view was supported in later cases such as Mst. Khurshid Bibi v Muhammad Amin30 and Hasina Ahmed v Syed Abul Fazal.31 There is also an option for the husband to delegate the right of divorce (talq-e-tafweed) to the wife in the kabinnama or marriage contract. The wife, if power is delegated to her in this way, can initiate divorce extra-judicially.

Bangladeshi divorce procedure is regulated by the MFLO. Men wishing to divorce must give written notice to the Chairman of the Union Council and their wives after pronouncing talaq.32 Divorce will not be effective until the expiration of 90 days from the day on which notice was delivered.33 Within 30 days of receipt of the notice, the Chairman must hold an Arbitration Council to attempt reconciliation.34 The Ordinance also makes it an offence to divorce without adhering to the prescribed legal procedure.

Despite efforts by the Ordinance to regulate and restrict the abuse of divorce, it can again be seen to fall short of granting women the necessary protection against the abuse of this right by men. First, instead of referring the issue of divorce to a court, the Ordinance refers it to a non-judicial body, i.e. the Arbitration Council, as seen in the case of polygamy. Secondly, the Ordinance simply postpones the effect of the talaq for attempts to bring about reconciliation between the parties (Serajuddin 1991). But interestingly, the reconciliation effort prescribed by the Ordinance follows rather than precedes the pronouncement of talaq. According to the Ordinance, if the reconciliation process fails (which usually depends on the husband’s will), divorce automatically proceeds 90 days after the notice. Thus, the husband’s unilateral right to divorce still remains intact under the Ordinance, except for a procedure of notice and attempted reconciliation to which he must adhere (Serajuddin 1991).

Along with eliminating polygamy, progressive divorce law is another well-known aspect of Tunisia’s Personal Status Code. Unlike some Muslim countries (e.g. Bangladesh, Pakistan), in Tunisia extra-judicial talaq has no validity as divorce is subject to judicial proceeding under the Code: no divorce may be decreed until a judge appointed by the court has tried and failed to reconcile the parties.35 Moreover, in Tunisia both men and women have equal rights in initiating divorce. The individual seeking divorce petitions the lower court after paying a fee. According to Article 31, the court may grant divorce based on (1) mutual consent or agreement of the spouses; (2) a petition from one spouse because of injury caused by the other; or (3) a petition from the husband or wife.36

In Morocco, according to newly reformed law, the right to divorce is a prerogative of both men and women.37 As in Tunisia, verbal repudiation is no longer valid in Morocco; divorce is subject to judicial authorisation. Before the reform, the Moroccan situation was the same as in Bangladesh: divorce was left to the husband’s discretion, allowing him to exercise this right arbitrarily. To protect the wife against arbitrary divorce, the new law enhances the scope for reconciliation through the family and the judge before a divorce can be granted.38 The new law has also established divorce by mutual consent and requires any monetary dues owed to the wife and children to be paid in full by the husband before the divorce is registered.39

The Possibilities for Reform in Bangladesh

No discussion of personal laws and their reform in Bangladesh is complete without some appreciation of the unique socio-political context in which they operate. Although in Bangladesh religion plays a vital role in socio-cultural life and Islam is critical to both individual conduct and institutional development, an equally strong pull is exerted by secular values and ideals (Murshid 1996). This unique dichotomy is also reflected in discourses around religion and gender equality, in the way in which the whole issue of gender and law reform is viewed and debated in the country.

Two opposing groups are debating reforms of Islamic personal law and women’s rights in Bangladesh. On one side, Islamists hostile to any changes in religious-based laws advocate strict adherence to Islamic norms and laws as interpreted by classical jurists. Opposing them are secular and modernist women’s rights activists, demanding replacement of religion-based personal laws with a uniform and secular legal regime based on equality. This group includes Western-educated academics and activists in NGOs (foreign aid-based non-government organisations) representing radical and modern segments of Bangladeshi society. They base their claim on relevant Constitutional provisions guaranteeing gender equality. There is also a middle position, sceptical about gender equality as a strategic goal in a Muslim society, but unsupportive of conservative arguments that Islam requires women to be kept subordinated, disadvantaged and secluded. Proponents of this view insist on proper implementation of rights and duties guaranteed to women under Islamic law instead of bringing substantive change based on equality (Monsoor 1999, p. 57).

To understand the origin of the two major strands in gender equality discourse in Bangladesh—secular-based reform and Islam-based legal conservatism—we need to consider Bangladesh’s unique political history, largely dominated by struggle between these two apparently opposite ideals. After independence in 1971, giving effect to the ideals and aspirations leading the nation to the liberation movement, the first Bangladesh Constitution (1972) affirmed the equal rights of women and incorporated ‘secularism’ and ‘social justice’ as two fundamental pillars of the state. During 1975–1990, however, when Bangladesh was under military dictatorship, the Constitution underwent major surgeries and the principles of secularism and social justice (vital for the development of a uniform, equality-based family law regime) were replaced with diametrically opposite principles such as “absolute trust and faith in Almighty Allah” and the declaration of Islam as the state religion (Hossain 1994).40

This shift away from secularism and the process of gradual and forced Islamisation has arguably had disastrous consequence for women’s rights in Bangladesh, tampering with the Constitution’s basic structure and strengthening the hands of Islamic fundamentalist forces. Since Islam has been declared the state religion, Islamists have argued that the idea of a secular, uniform personal status law threatens the values and ideology of an Islamic state. However, the move away from secularism or gradual Islamisation in Bangladesh was effected under successive military regimes. Rather than any public demand to move away from secularism or declare Islam the state religion, the move created grave concerns and sparked protests from various citizens’ groups (Alam 1991).

Also, compared to other Muslim countries (e.g. Iran, Pakistan), official attempts to ‘Islamise’ the Bangladeshi legal system have been much more low key. There has been no attempt to bring criminal laws into line with Islamic penal law by introducing traditional Islamic modes of trial and punishment (Anisuzzaman 1991). Furthermore, there has been a marked absence of any sustained attack on women’s rights, for example, regarding dress, forcing the wearing of headscarves or hijab. Despite pressure from fundamentalists, the more drastic step of declaring Bangladesh “an Islamic Republic”, in place of its present denomination as “a People’s Republic”, has not been taken (Kabeer 1989).

In light of the above, it can be argued that the best possible approach to legal reform in Bangladesh would be to follow Tunisia’s example and pursue a uniform and secular personal law regime consistent with the spirit of the Constitution. Whether this can be achieved is, however, doubtful given Bangladesh’s present socio-political situation.

The demand for a unified family code gained momentum in Bangladesh in the 1990s when various women’s groups took steps to unify various personal laws. Since then, a series of draft codes have been proposed by various organisations. While these drafts reflect differences in approach in addressing issues of unification and reform, they share common propositions such as banning polygamy, allowing inter-faith marriages, and providing equal rights in the areas of divorce, custody of children and inheritance. Proposals for unification and reform of personal laws, however, have not met with much enthusiasm, either from the government or the judiciary. The government’s view in this regard became apparent in 2005 when UNESCO and Women for Women (a prominent women’s rights organisation in Bangladesh) submitted a joint report to the Law Ministry, suggesting that personal laws of all communities should be reviewed to frame a Uniform Family Code. The Ministry referred this to the Law Commission for its opinion, which rejected the idea outright. The Commission adhered to a very strict Islamist position, stating that Qur’anic laws are “immutable and beyond jurisdiction of any human being to amend or alter” and that “the Muslims of Bangladesh would rise in revolt as one man if they are asked to give up a basic tenet of their faith” (The Law Commission, Government of the People’s Republic of Bangladesh 2005).

The position adopted by the Law Commission in this regard is consistent with the scepticism of the upper tier of the judiciary, as reflected in a number of important Supreme Court decisions. For example, in Eva Sunanda Chowdhury v Subir Sardar/Sarker,41 the High Court recommended that Parliament should enact a “unified Marriage and Divorce Act for all citizens to keep in pace with the modern time”. After the judgment, various fundamentalist Islamic organisations organised violent protests, even declaring a price on the head of the presiding judge. Eventually, the Appellate Division of the Supreme Court expunged the recommendation from the judgment upon the filing of a petition by an organisation called Islamic Law Research and Legal Aid Bangladesh. It seems doubtful, therefore, whether an attempt to adopt a secular-based model of legal reform, in the form of a Uniform Family Code applicable to all religious communities, will be successful in the near future.

This article argues that while the ultimate objective of legal reform should be to ensure a uniform and equality-based personal law, different strategies can be pursued to achieve the same goal. One such strategy might be to reform the personal laws through progressive interpretations of religious sources and doctrines. The benefits of pursuing such a strategy are twofold: it can serve to broaden the base of support for women-friendly legal reform and will be less susceptible to accusations of westernisation and a political backlash; and it can help to create the necessary atmosphere in the future for advocating a uniform personal status law based on gender equality.

The foregoing discussions on Tunisia and Morocco have highlighted that it is possible to improve women’s legal status in a Muslim society within the framework of Islam. Reforms introduced in Tunisia, and especially in Morocco, explicitly took a reform approach consistent with the values and spirit of Islam. They can thus serve as examples to follow in the reform of Islamic personal status laws in Bangladesh. For example, drawing on provisions in Tunisia and Morocco, it could be argued that the MFLO regulating the divorce procedure in Bangladesh should be amended to make all divorce subject to a judicial process instead of leaving it to the non-judicial Arbitration Council. The difficulty and expense of going through a judicial process to obtain a divorce may thus serve to reduce the number of arbitrary divorces by men. Moreover, such a move would bring the issue of divorce within the ambit of judicial interpretation, which in turn might serve to create an environment for the development of personal laws in this area through progressive reinterpretation of the relevant texts and provisions. In Morocco, after the recent reforms were announced, steps were taken by the government to arrange adequate training for judges entrusted with these cases. Judges in Bangladesh might be subject to a similar training process.

With regard to polygamy, the High Court Division of the Bangladesh Supreme Court in 1997 examined the issue of whether Islam truly approves of polygamy. In Jesmin Sultana v Mohammad Elias,42 the High Court, by citing a number of Qur’anic verses and hadith, affirmed that “to be able to deal justly” is a condition precedent to marriage with more than one woman and the impression implies equality in love and affection. Since this essential condition for polygamy cannot be fulfilled because of the “weakness of human nature” and “modern social and economic conditions”, the Court accepted the argument put forward by reformists that polygamy is against the principles of Islamic law. The Court also made specific reference to the Tunisian Code while recommending abolition of polygamy. The judgment was referred to the Ministry of Law to bring about necessary reforms in the existing law, but no action has yet been taken on it.

However, direct use of the Tunisian Code by a Bangladesh court evidences a judicial perception of some compatibility of legal regimes; on that basis it could be argued that the Tunisian example should be followed directly in Bangladesh to abolish polygamy outright. Alternatively, if that proved to be difficult due to fear of a political backlash from religious fundamentalist groups, Bangladesh might at least follow the Moroccan example and make polygamy subject to prior court authorisation. If, following Morocco, the requirement of doing justice between co-wives and equal treatment of them is made a pre-condition to a polygamous marriage, the abuse of polygamy can be effectively curtailed, if not obliterated altogether.

Problems Associated with Reform

Tunisia and Morocco

It has been argued that reform is desirable and possible in various areas of Islamic personal law in Bangladesh, drawing upon the examples of reforms adopted in Tunisia and Morocco. However, it must be acknowledged that taking Tunisia and Morocco as models for reform in Bangladesh is not devoid of problems.

It has been observed above that reforms initiated in these two jurisdictions have to an extent challenged the prevalent gendered rights and roles prescribed by Islamic law and shown that certain aspects of Islamic law are reconcilable with a notion of gender equality. This notion insists on equality between the sexes in terms of spirituality and equal worth as human beings, while acknowledging that sometimes it is necessary to ascribe men and women different social roles. For example, in Islam, women generally get half the share of men in inheritance because they have no formal obligation to contribute towards household expenses; the actual guardianship of children lies with the father as he is ultimately responsible for providing for the child’s needs. These underlying notions of Islamic law reinforce stereotypical assumptions about women’s dependence and powerlessness, and contribute to their subordination. However, such assumptions may arguably be reconciled with notions of ‘gender equality’ if one accepts that the overarching aim of Islam is to eradicate disadvantage and ensure overall justice between the sexes, which sometimes requires treating women differently. Viewed thus, Islam seems much less contradictory, if not closer to the substantive approach to equality.

However, changes in the legal status of women through legal reform do not automatically confer social and economic improvements, or indeed substantially enhance women’s overall status in society. When we seek to use the law to effect social change, we invariably express our optimism in the law’s ability to be above culture and transform deeply rooted social institutions and foundational values (Larson 1993). This approach, however, overlooks the cultural and social contexts within which laws are formulated, enforced and interpreted. Given the record of the feminist law reform movement, it becomes questionable whether the law by itself has the ability to address societal inequalities.43 Therefore, joining in what has been called a ‘third wave’ of feminist efforts to re-evaluate the way law is conceived and applied,44 increasingly, social scientists and legal scholars are turning their attention more to the social and cultural contexts that surround the application of law. It therefore remains to be seen whether recent reforms initiated in Morocco will substantially improve the experience of women. In Tunisia, too, due to insufficient data, it is difficult to confirm how far reforms to personal laws have changed women’s overall position in society.

In Morocco, although women’s groups and activists have supported reform, they have also raised concerns and identified some factors which in their opinion may limit or obstruct the realisation of women’s rights in practice, such as the Moroccan judiciary’s lack of training and the lack of institutions to monitor their performance. Since the new law still allows judges to use religious principles in deciding matters not covered in the code, this leaves scope for them to apply conservative religious interpretations (Gomez-Rivas 2008; Bordat and Kouzzi 2001). The new law also assigns to judges the role of overseeing mandatory reconciliation in divorce cases. This has also raised concern among women’s groups that judges may prioritise reconciliation in the interest of “family harmony, even at the cost of women’s right to divorce” (Bordat and Kouzzi 2001).

Moreover, high illiteracy rates among women in Morocco45 and the propaganda of various extremist religious groups may serve as major obstacles to the realisation of the rights conferred. Therefore, while it is evident that recent reforms in Morocco have succeeded in improving women’s formal position with respect to their legal rights, it remains to be seen how far this actually benefits women and how far the rights granted therein may be realistically achieved.

Malakis versus Hanafis: Dilemmas of Comparison

Since this article makes a cross-national comparison of how different reform approaches are invoked in other Muslim countries to explore the possibilities for equality-enhancing reforms of Islamic law in Bangladesh, a major dimension of this article is, therefore, comparative. In the context of the present study, this approach is particularly useful because it traces various conceptual developments in the analysis of Islamic law which can help to break away from the narrow confines of the traditional approach to Islamic law as perceived and applied in Bangladesh. This highlights new possibilities for ‘reform within Islamic law’ as an approach as well as a strategic goal for the women’s movement in Bangladesh.

Although the benefits of such a cross-national comparison may be considerable, so are the limitations. Since the study involves comparison, it therefore invariably encounters all the dilemmas associated with comparison. One such dilemma can arise from differences between the values and practices embedded in the socio-cultural norms of different societies. Islamic law is understood and operated in different societies in many different forms, because variables of socio-cultural values and norms, patriarchal attitudes and practices, that shape women’s roles and experiences within a society, contribute significantly to the process of developing these rules. Although Shari’a has traditionally been perceived to provide fixed norms against which women’s rights and roles must be weighed, the actual practice of Islamic law in different societies is thus acknowledged to diverge in significant respects.46

As such, in the context of the present research, there remains the problem of whether reforms initiated in one socio-cultural context can be readily transplanted into another with divergent socio-cultural values and practices. The question seems particularly pertinent given that while Tunisia and Morocco belong to the Maliki tradition of Islamic thought, the dominant thought in Bangladesh is the Hanafi. Can reforms introduced by the Maliki school of thought be adopted in a Muslim society adhering to a different school?

While aspects of these questions involve queries that are broadly socio-legal and therefore difficult to address fully given the scope of this paper, they also involve issues related to Islamic legal discourse in general. As such, the answer to the question of transplantation may partly be found in the tools and devices developed within Islamic law itself.

While it is accepted that Islamic law is not unified and static and varies in its application in different societies, we also need to bear in mind that all Shari’a matters refer back to the Qur’an and Sunnah which are the overriding authority on any individual or institutional opinion. In other words, all Islamic scholars are obliged to be guided by the Qur’an and Sunnah and not according to any specific school of thought. From this point of view, how the primary sources (Qur’an and Sunnah) are interpreted and applied in one Muslim society becomes an issue of particular interest and importance for Islamic jurisprudence in general.

It can therefore be argued that although the reform approach undertaken in Tunisia and Morocco, and the concept of equality emerging as a result, is not immune from criticism, whether in an Islamic context or more broadly, this study is nevertheless useful in successfully demonstrating that (1) it is possible to have a unified personal status law; (2) in the absence of such a unified law, a strategy of incremental reform remains possible; and (3) the pursuit of gender equality-enhancing reform in a Muslim society is an issue worth considering even within a context of rising religious fundamentalism.

Two particular devices recognised by Islamic law can be useful for the initiation of reform grounded within the culturally appropriate values of a particular Muslim society: eclecticism and ijtihad. ‘Eclecticism’ (takhayyur) as a term of jurisprudence means a process of selection. It is a device for searching for precedents, not only in the four orthodox schools of Islam but from a range of juristic opinions on a particular point of law, to seek less restrictive legal principles regarding the issue at hand. Takhayyur has been of enormous significance in initiating a number of women-friendly reforms and family law codes in various Muslim societies.47 Serajuddin (1991) observes that an effective use of this method was seen in the enactment of the Dissolution of Muslim Marriages Act (1939)48 that brought substantive changes in the divorce law applicable to the Muslims of Bangladesh, India and Pakistan, regardless of the school to which they belonged. This device might serve as a useful tool to incorporate into the Hanafi-dominated Islamic law in Bangladesh aspects of the reforms introduced in different areas in the Maliki doctrine-based Islamic law in Tunisia and Morocco.

Another important device is ijtihad, or juristic interpretation and reasoning of texts. The power of ijtihad is open to all qualified Muslims, whether male or female, having the necessary knowledge of the sources of Islamic law. Ijtihad provides Islamic jurists with the scope to develop Islamic jurisprudence in light of the changing conditions of the society and, where necessary, with local custom, socio-cultural values and familial ideologies, so long as they do not conflict with Islamic sources (Schacht 1964).49

In Bangladesh, the judiciary is vested with the power to exercise ‘judicial’ ijtihad through case law (Serajuddin 1991). In a recent case, the High Court reaffirmed the position that the power to interpret law is vested with the Court.50 As a result, two very important rights are asserted which, in practical terms, have profound implications for women’s rights and Islamic law reform in Bangladesh. These are, as Serajuddin (1991) notes: (1) the right of the courts to independent interpretation of the Qur’an where necessary; and (2) their right to differ from the doctrines of traditionally authoritative legal texts which are not based on any specific injunction of the Qur’an and Sunnah. For the purpose of Islamic law reform in Bangladesh, and particularly in relation to the application of reforms introduced in other Muslim countries such as Tunisia and Morocco, this device may be useful as it allows the courts to interpret, develop and apply Islamic law in line with the values and needs of Bangladeshi society.

Conclusion

The Tunisian and Moroccan experiences of law reform show that it is possible to improve women’s status in a Muslim society, whether in the form of a secular family law regime based on the principle of equality, or within the framework of Islamic law by invoking egalitarian principles of Islam.

As the experiences of Tunisia and Morocco clearly illustrate, approaches to legal reform in a Muslim society often rely on the interpretation of Islamic sources to reinforce their position, either to support or condemn the notion of gender equality. In this regard, the experience of Morocco becomes particularly valuable for reforms to personal laws in Bangladesh, as it shows that the legal position of women can be substantially improved within the framework of Islam although, as pointed out above, how far this will advance women’s rights in reality remains to be seen.

While it is accepted that the ultimate success of the newly reformed law in Morocco will depend to a large extent on how the problems and concerns discussed above are addressed and resolved, it is nevertheless evident that the reforms mark a step forward for women’s rights. Judicial ijtihad has been successfully used in the past to achieve important rights for women in Bangladesh and it still holds real promise in reforming provisions of Islamic law that are clearly disadvantageous to women (e.g. polygamy and divorce) and can play a key role in defining the experience of women in Bangladesh.

This study has also illustrated the clash of approaches related to the issue of personal law reform in Bangladesh, where patriarchal practices disguised as religious norms are seen to be in conflict with the constitutional guarantee of gender equality. Although orthodox Islamic views may appear as a strong force acting against reforms to the personal laws at present, opposing forces of modernist views of Islam, equality and secularism, that in the long run may facilitate personal law reform, are also becoming stronger as a result of socio-economic and political transformation in Bangladesh. In this context, the progressive reforms in Tunisia and Morocco can serve as examples for Bangladesh and in the long run may serve as a stepping-stone towards replacing the prevailing patriarchal order and ensuring a family law regime based on substantive equality and justice.

Footnotes
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.

 
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.

 

Acknowledgement

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

Copyright information

© Springer Science+Business Media B.V. 2008