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.
Hend, great arfticle. It is something that i have been thinking about for a while. Divorce laws are not quite fair for women… I am not sure if it is Sharia… or if we could take the Sharia law as a guid and create new laws that are more appropriate… but for me it is almost offensive how men want to control women in this culture. You are right, This law causes extreme damage for women!
Thank you, Hend. This is tragic.
but aren't relegious text enablers to such injustice? Lets not bury our heads in the sand..call a spade a spade.To choose one thing that isn't “clearly” stated in relegious texts and represent it as a more serious injustice than,say, forcing hijab or inheritance is misleading to say the least.
Keyword: enablers.
[…] Women and children suffer from easy-divorcism and lack of sufficient financial support in the US too, but there are laws against such blatant gender-bias. Most of my Jordanian friends who have divorced have done so due to an unacceptable level of domestic violence directed toward them, and to their children. So it’s either live with rage and eat, or live in peace and starve? Read it all here. […]
[…] Discriminating Law; Legalizing Injustice […]
I thought jordan lifted all reservations on the CEDAW, no?
see: http://www.jordantimes.com/?news=16860
thanks for positing the article. it seems they lifted reservation on mobility and property ownership rights but not the rest of the reservations. I was struck when I read the following piece from the article:
“Families in Jordan face the threat of total collapse under CEDAW,” warned the Islamic Action Front (IAF), the political arm of the Muslim Brotherhood.
According to IAF activists, the clause contradicts the teachings of Islam, under which authority over women's mobility is in the hands of their husbands if they are married, and in the hands of brothers or fathers if they are single.
I can't believe a rational person who lives in the 21st century would even say something like that. It is truly disappointing.
as noted in the article…some reservations have been lifted…not all
here's the thing about the IAF and the muslim brotherhood at large – they're not idiots. quite the contrary.
we have to put such comments in larger contexts, which means factoring in where they're coming from. to the IAF and other conservative groups, there seems to be an onslaught of conventions and various social reforms that are “imposed” or “dictated” to by the international community, and the jordanian state, in the name of reform or showmanship, happily adopts them (financial aid usually follows).
hence these conventions lack any form of public debate and conservative groups are left out of the process. from their point of view, it feels like someone comes over to your home and tells you exactly how you should live. that's how they see it. whether they're right or wrong is another ballgame. however, my main point is, if such groups are continuously left out of the process, they will continuously feel further alienated and provide greater opposition.
in my opinion that should be the discussion when it comes to the IAF.
1) i don't think they were idiots, they are smart but some criminals are super smart too.. smart is not a virtue on its own, when combined with sound judgment it becomes a virtue.
2) they feel alienated because they don't agree with the changes, if they saw them as positive developments they would not feel the need to jump in just to contradict. They actually believe that a woman should be governed by a man. Now that is not excusable no matter what way you look at it, in my opinion at least
it's not excusable, but the issue here is that when you're left out of the debate, you shift further to the right. there's no wiggle room. its the slow boiling of hard eggs, battling it out.
if a national debate was created, if this was part of a much larger advocacy and awareness-raising approach, if they were brought in to the folds, you'd have better and more moderate results.
let them in. have the debate. raise awareness. let them disagree. at least they're at the table. sell it well. and if they're convinced or if there's a reached consensus, the IAF alone brings in the support of their enormous constituency.
this is where the state fails to see the benefit. they approached cedaw like everything else. shut out the opposition in hopes that they shut up.
i would argue that this approach works in certain circumstances and not all. That is what the west fails to see sometimes, the approach of consensus and democracy in general works if there is a liberal and freedom-protecting base to begin with. If you apply this approach when the majority of your audience is radical, you will end up with a disaster. Do you actually think that this reservation would have been lifted if it was voted on? i really doubt it.
I found the following two books especially great in addressing this issue: “World on Fire” by Amy Chua and “The Future of Freedom” by Fareed Zakaria.. they both address it on a state level but I think you can apply the same logic to smaller debates like this.
thanks for positing the article. it seems they lifted reservation on mobility and property ownership rights but not the rest of the reservations. I was struck when I read the following piece from the article:
“Families in Jordan face the threat of total collapse under CEDAW,” warned the Islamic Action Front (IAF), the political arm of the Muslim Brotherhood.
According to IAF activists, the clause contradicts the teachings of Islam, under which authority over women's mobility is in the hands of their husbands if they are married, and in the hands of brothers or fathers if they are single.
I can't believe a rational person who lives in the 21st century would even say something like that. It is truly disappointing.
as noted in the article…some reservations have been lifted…not all
here's the thing about the IAF and the muslim brotherhood at large – they're not idiots. quite the contrary.
we have to put such comments in larger contexts, which means factoring in where they're coming from. to the IAF and other conservative groups, there seems to be an onslaught of conventions and various social reforms that are “imposed” or “dictated” to by the international community, and the jordanian state, in the name of reform or showmanship, happily adopts them (financial aid usually follows).
hence these conventions lack any form of public debate and conservative groups are left out of the process. from their point of view, it feels like someone comes over to your home and tells you exactly how you should live. that's how they see it. whether they're right or wrong is another ballgame. however, my main point is, if such groups are continuously left out of the process, they will continuously feel further alienated and provide greater opposition.
in my opinion that should be the discussion when it comes to the IAF.
1) i don't think they were idiots, they are smart but some criminals are super smart too.. smart is not a virtue on its own, when combined with sound judgment it becomes a virtue.
2) they feel alienated because they don't agree with the changes, if they saw them as positive developments they would not feel the need to jump in just to contradict. They actually believe that a woman should be governed by a man. Now that is not excusable no matter what way you look at it, in my opinion at least
it's not excusable, but the issue here is that when you're left out of the debate, you shift further to the right. there's no wiggle room. its the slow boiling of hard eggs, battling it out.
if a national debate was created, if this was part of a much larger advocacy and awareness-raising approach, if they were brought in to the folds, you'd have better and more moderate results.
let them in. have the debate. raise awareness. let them disagree. at least they're at the table. sell it well. and if they're convinced or if there's a reached consensus, the IAF alone brings in the support of their enormous constituency.
this is where the state fails to see the benefit. they approached cedaw like everything else. shut out the opposition in hopes that they shut up.
i would argue that this approach works in certain circumstances and not all. That is what the west fails to see sometimes, the approach of consensus and democracy in general works if there is a liberal and freedom-protecting base to begin with. If you apply this approach when the majority of your audience is radical, you will end up with a disaster. Do you actually think that this reservation would have been lifted if it was voted on? i really doubt it.
I found the following two books especially great in addressing this issue: “World on Fire” by Amy Chua and “The Future of Freedom” by Fareed Zakaria.. they both address it on a state level but I think you can apply the same logic to smaller debates like this.
[…] Discriminating Law; Legalizing Injustice […]
[…] Discriminating Law; Legalizing Injustice […]