Gender Justice and Legal Reform in Egypt. Mulki al-Sharmani
contract was a much watered-down version of the original draft that was proposed by a coalition of women’s rights activists, legal figures, and government officials. The earlier version listed nine explicit stipulations to be read by the state notary (ma’zun) officiating the marriage to the two parties as possible conditions that they could agree on and include in the contract. The stipulations included, among other things, restricting the husband’s right to polygamy, protecting the wife’s right to work and travel, negotiating for delegated divorce, and securing the wife’s right to the conjugal home and furniture. But after a strong opposition from the country’s main religious establishment, al-Azhar, the listed stipulations were removed from the contract (Shaham 1999; Singerman 2005). Nonetheless, the new contract still kept the idea of inserting stipulations alive by including this marked blank space where conditions negotiated by the couple could be inserted in the contract.
PSLs Nos. 1, 10, and 11 are closely interrelated, and in fact they paved the way for one another. Article 10 in PSL No. 1 stipulates that all personal status cases will be reviewed by ‘first-instance’ family courts. In other words, this article calls for a unified legal system for PSL cases, which later evolved into the new courts system and PSL No. 10. In addition, Article 72 in PSL No. 1 stipulates that Nasser Bank, a government-owned fund, will implement court judgments in alimony and maintenance cases. Again, this new system was later developed into a full-fledged Family Security Fund through PSL No. 11. The interconnectedness among the new laws was the result of interrelated advocacy processes, which were undertaken by a coalition of diverse actors (Al-Sharmani 2009, 2013a; Singerman 2005; Sonneveld 2012). Interestingly, all the reforms that were introduced in these first five years of the new millennium were procedural, except for PSL No. 4. This point draws our attention to the choice of reform strategy that was made by some of the key actors seeking to address gender-based inequalities through these new laws.
Gender Justice and Navigating Egyptian Family Law
This book is an inquiry into some of the aspects of the legal reforms focusing on the new family courts and khul‘. While the advocacy and contestations around khul‘ had been well researched (Arabi 2001; Fawzy 2004; Singerman 2005; Sonneveld 2012; Tadros 2003), in-depth empirical research on the new family courts is still lacking. The existing Arabic literature on the new family courts falls into two categories. The first consists of a series of legal books that were written by judges and lawyers that explain the structure and functions of the new courts through an analysis of the written text of PSL No. 10 (Abdel Qader 2004; Abdel-Sattar 2004; al-Bakri 2004; al-Lamsawy and al-Lamsawy 2006; Mansour 2006; Sheta 2006; Zuwein 2006). The other body of literature consists, for the most part, of short papers presented in workshops by academics and women’s rights activists, which reflect on the advantages and drawbacks of the new system and its effects on female disputants. However, this literature is not based on any systematic primary research (Abdel Qader 2004; Bibars 2007; al-Menshawy 2004; al-Samaluti 2007; al-Sayed 2004). In 2007, the Egyptian Ombudsman’s Office for Women conducted a study to explore the problems that women encountered in family courts, drawing on data collected from the complaints of female disputants that were reported to the Ombudsman’s Office as well as focus group discussions with lawyers (Ombudsman’s Office 2007). While this latter study drew on some data collected from disputants, it was also not based on first-hand empirical research.
With regard to the English literature, in 2006, Jamila Chowdhury, a lecturer in the School of Law at Bangladesh Open University, wrote an article about Egyptian family courts (Chowdhury 2006). Chowdhury’s article explains the structure and procedures of the new system and concludes that it is an advantageous legal model that is to be replicated in other Muslim countries. The author’s arguments, however, were primarily based on an analysis of the text of PSL No. 10 as well as newspaper articles on the new courts system and interview data with two disputants.
But it is Nadia Sonneveld’s book on khul‘ that presents important insights into the new courts (Sonneveld 2012). Sonneveld’s multidimensional research investigates khul‘ from multiple angles: the debates and contestations around this divorce law; the courtroom practices; and the lived realities of women who opt for this kind of divorce. In chapter 5 of her book, Sonneveld, drawing on field research, examines the role of court mediation in khul‘ cases. Her findings regarding this latter point as well as the lived realities of the women who resort to khul‘ are very relevant to this book. My research corroborates and builds on many of the author’s insightful findings, and it also sheds light on other findings that suggest a somewhat different reading from some of Sonneveld’s analysis. I will elaborate on these points in due course. But the fact remains that none of the aforementioned Arabic and English literature, including Sonneveld’s significant study, provides a close analysis of the various actors and agendas behind the establishment of this new courts system in particular.
The first aim of this book is to fill that gap. I examine how three main agendas drove the establishment of the new family courts. One agenda was led by Laila Takla, the prominent Egyptian legal expert who spearheaded the establishment of the new family courts. Takla’s agenda was shaped by a global trend toward specialized, mediation-based family courts that take into account the well-being of the family and in particular the best interests of children, and hence seek to deliver therapeutic justice (Kelly 2004; Rhoades 2010; Roberts 2014; Singer 2009). The new family courts law was also pushed by a state agenda seeking to modernize and make efficient the legal system, a goal that was linked to larger development and governance agendas (Hasso 2011; Sonneveld 2012). The cause of establishing new family courts was, furthermore, espoused by prominent women’s rights advocates whose goal was to address gender-based inequalities and injustice. Adopting a strategy of gradual and procedure-oriented reform, these advocates lobbied for the new family courts through their roles as key figures in state institutions such as the National Council for Women and the then-ruling but now-dissolved National Democratic Party (NDP). For these women’s rights advocates, the new family courts were an important step on the pathway toward egalitarian gender rights in the family domain as the new legal system was meant to provide female disputants with an accessible, efficient, and affordable justice system.
I shed light on these diverse reform actors and investigate to what extent their respective agendas were congruent. I examine how the alliance between these diverse actors and their goals played out in the process of drafting and promulgating PSL No. 10. In addition, I trace the top-down and rushed reform process, which did not adequately take into account the reservations of various nongovernmental women’s rights organizations on the proposed new courts system, highlighting how this reform process shaped the drafting of the text of the law as well as its implementation. This research shows that it is not only the content of the written texts of new laws that matters in the pursuit of gender-sensitive reforms, but also the process through which these laws are proposed and advocated, for the reform process is itself part of the discursive space where new laws take on their social meanings, and these meanings accordingly have their bearings on the implementation of the new courts system and women’s access to justice.
My second aim is to examine how female disputants use and experience the legal process in the new family courts. I provide an empirically-grounded, in-depth analysis of how the new courts system works for and against women, particularly with regard to the role of court mediation both as a compulsory pre-litigation mechanism of dispute resolution and as part of the litigation process itself. I investigate the following questions: Does the new courts system deliver speedy, inexpensive, and accessible means to justice, particularly in maintenance claims, which constitute the largest bulk of court cases in family courts? How do the premises of the new courts and their resources influence their work? How do the actors in the new courts system such as settlement specialists, court experts, and judges understand their respective roles and implement the philosophy and the functions of the new legal system? What kind of dialogues are enabled or hindered with the disputants during the legal process, particularly during mediation?
Perhaps one of the most important and highly publicized features of the new family courts is its incorporation of mediation into the legal process. Sonneveld found that mediation was useful for women in khul‘ cases because “judges and mediators in the family courts provide a dialogue between husbands and wives