Background: The Sharia system proposes arbitration as an alternative to divorce. The court asks each party to appoint two representatives each. Two men are appointed to represent both the woman and the man, and if the two parties are unable to reach their intended purpose of reconciliation, then the arbitration should at least be employed a means of ensuring a peaceful separation. The arbitration also serves as a means to determine the fault of the failed marriage. This decision has legal and financial implications for the guilty party.
Case: Currently, Kayan’s Legal Coordinators Shirin Batshon-Khoury and Alhan Nahhas-Daoud are involved in the arbitration process of a divorce case under Sharia Law. In the case at hand, the wife filing for a divorce submitted a request to the Sharia court to appoint a woman to represent her in the arbitration. The court refuses to accept her demand due to the fact that under Sharia Law, a woman cannot be an arbitrator in a divorce case. The case went to the appellate court, where her request was denied. Consequently the woman submitted a petition to the Supreme Court of Justice asking to oblige the sharia court to appoint a female arbitrator. Kayan submitted an Amicus Curiae request, a brief filed with the court in which Kayan, although not a direct party to the case, will be able to offer information and legal explanation to assist the court in deciding the matter before it. Kayan hopes to have the opportunity to offer our recommendations to the court as feminist legal specialists in this case. On July 13, the Supreme Court submitted the request. The Sharia courts have 30 days to respond with their decision.
Why is it important for a woman to be able to choose a female representative during divorce arbitration?
“The woman’s voice needs to be heard in the patriarchal system. Half of the divorce litigants (disputants) within the Sharia system are women, and yet the system does not include any women with potential or effective positions. By refusing to integrate women in the courts, the Sharia court keeps the low status quo of women in the system, preventing the expression of women’s voices, a feminist perspective, or the allowance of any type of gender variety.”
Why is it important for the Sharia system to incorporate a gendered perspective?
“In a conservative and patriarchal society in which women are discriminated , women have a better understanding of women’s issues than men. Men are unable to adequately represent a woman’s experience because there is an obvious discrimination against women in the community. Women are more likely to understand the perspective and experience of another woman. Furthermore, the courts are dealing with very sensitive issues, such as violence against women and marital relationships. It is more convenient for a woman to express her feelings and experiences on these sensitive issues to a woman. Therefore, we are requested Amicus Curiae for this case in order to bring women’s voices to a patriarchic court system, and to bring equality. A male representative is not more qualified than a female representative. This duty of representation requires no special qualification. A woman is just as qualified. In this case, we are requesting equality.”
Do you feel hopeful that the court will take Kayan’s recommendations into account?
“I hope that the court discusses this issue. Although there has been no precedent in which a woman has challenged this position of gender discrimination, I think that our request is not overwhelmingly large. I think that asking for a female arbitrator reflects a specific need that should be addressed. It is not difficult to appoint a woman as an arbitrator. We are not asking for an impossible demand. The purpose of challenging the court is to make a change. Remaining silent for more than 50 years is no excuse to remain silent now.”