Discriminating Law; Legalizing Injustice

الأربعاء 25 تشرين الثاني 2009

Written by Hend Fayez Abuenein

Amid the growing debate about narrowing the gap between genders and how we’ve climbed up the scale of narrowing gender-discriminating practices, a number of questions emerge about gender related legislation in Jordan.

Being members of the Organization of Islamic Conference, we draw our definitions of human rights, from Islamic Shari’a law, hence our reservations about the CEDAW convention. Elimination of all forms of discrimination against women faces barriers in our religion, as well as our paternalistic mindsets. But unlike matters regarding women’s single accommodations and solo traveling, there are some articles in our laws that are inexplicably discriminating, and cannot be referred to any clear part of the Shari’a, but rather rely on male-empowering customs.

One of the least discussed of these laws is article number 165 of the Jordanian Civil Code Law. This article states that if after divorce a male child opts not to join his custodian after coming of age, he is still entitled to receive financial support from his custodian. Whereas, if a female child reaches puberty and opts to stay with her mother or her mother’s successor, she is denied that right, in which case her mother has to support her.

I have searched and asked for interpretations behind this legalized form of blatant discrimination against female children, but the answers I have received were far from convincing, just as they weren’t sourced from Shari’a. An attorney at law told me that it is a way to make girls opt for what our customs accept as the more secure for her: in the hands of a male custodian, not her mother or aunt.

This is a form of oppression against the child.

If she was used to certain standards of living and her mother was not very well to do, the girl will be severely harmed, as if punished for the separation, in ordered to be forced to join the father, regardless of her will or sense of security.

Another told me that the law reacts to the possibility of the child refusing custody, but not in favor of living with the mother or her successor in care.  The text of the article generalizes all forms of refusal, without specifying what the child chose as alternative. Thus the law generalizes that she will be considered disobedient, a defector from the paternalistic order, no matter what her reasons or alternatives were! And since the sources of the Civil Code fall under Shari’a law and custom, the community cannot give its girls an open ended law that could encourage girls to remain unsecured.

On a talk show that discussed this law among other gender-related matters a lawyer went to the extreme of suggesting that if a little girl, the victim of a separated family, chooses not to accept her male custodian’s care, that means she is rebellious against our customs and might have intentions of delinquency! This takes passing preconceived judgment against women to the next level.   It implies that just because a little girl refuses to join her father or uncle she is under suspicions of prostitution.

This implication, which deems a girl a potential prostitute because she refuses a male’s custody, and finds justice in generalizing that into a community-binding law, should instead consider all the cases of incest that abuse silent girls in their homes, when many a case was the reason why a mother would file for the divorce and choose to break her home but save her child. Aren’t these cases of delinquency bad enough to be generalized against, by way of protecting the community?

It is appalling to think of a girl having to choose between the grief of abandoning her mother or wherever she feels is more secure, and her right to financial maintenance, along with a wrongful judgment supported by the law, all of which befell her -in that case- because she was born a female. As if it’s not bad enough what a child goes through when her parents get separated: the emotional turmoil she lives under as the peak wells up, the tension in court visits, all in the timing of emotionally demanding adolescence.

True, that we do not live in Utopia. And true, that this law protects the community from some exceptional cases of delinquency, and protects female juveniles from perversity, but that would only be the case if all its subjects had one reason for rejecting custody, which is not the case. And the law cannot be focused on protecting the good of the community while disregarding the good of its individuals. Had this law followed the spirit of Shari’a, rather than remain uniform in all cases, it would definitely find an equilibrium that serves each case of human need as well as a regulatory form that serves the community. After all, the letter of the law killeth but the spirit giveth life. And if the law does not help in changing the preconceived judgment passed on women in our customs, it will only be serving it by legalizing discrimination.

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