ISLAM MEETS WOMEN’S RIGHTS IN MOROCCAN FAMILY LAW

ROME – A family law ”in harmony with the founding principles and the spirit of Islam”, for which any ‘Ijitihad’ (interpretation of the Koran) was ”more than welcome”. And it the end it proved how ”Muslim identity and universal human rights can coexist”. It is the Moudawana which in 2004 replaced Morocco’s old and patriarchal family law, in the words of Nouzha Guessous, a researcher and bioethics advisor who took part in the Royal advisory Commission charged with the task of drafting the new code law. During a recent meeting set up in Rome by Reset Dialogues on Civilizations and the Lelio e Lisli Basso Foundation, the researcher stated that ”There is no intrinsic contradiction between the principles of Islam and human and feminine rights. Morocco carried out a ‘de facto’ secularisation of family law, but held on to certain procedures and made partial use of traditional jurisprudence to solve current problems”. Consequently this was an internal rethink by Islam to also rediscover in its roots the origin of fundamental human rights now decreed by international law: an alternative path to that followed by other Countries such as Tunisia, whose family law is more advanced in some ways, but which has also been viewed as an act of secularisation imposed from the outside. Of course Morocco’s law still allows polygamy, and its final elimination is one of the objectives of future reforms. ”It would have been equally easy to justify its elimination starting from the Koran itself”, added Nouzha Guessous, who pointed out that Islam’s holy text, considered in its development through time, goes from stating the possibility for a man to marry up to four women to denying it in fact, given that from a human standpoint a husband cannot be fair to all of them as required. But the path chosen by the Commission was more pragmatic, since polygamous relations in Morocco ”are less than 1%”, she said. However in the meantime the new family code raised the minimum age for marriage to 18, abolished the figure of male legal guardian to get married and the duty of obedience, and introduced the possibility of divorce being consensual or driven by ”irreconcilable differences”. The female researches emphasised that all of the above is possible thanks to a law-making process – entrusted to a commission which also comprised seven theologians and three women – based on the method of hearing all social parties (including 75 female NGOs), on transparent debate and support by society at large. A process which also allowed for the outline of a ”Muslim feminism” that is clearly distinct from the ”Islamist feminism” which instead rejects the code law and anything connected to the West. Nouzha Guessous concluded that the challenges which have to be met are however still many. Not only because of the need to watch over the application of the code law and to ”translate the principle of equality in all laws” (starting from article 8 of the Constitution, which does mention equal rights between men and women, but only political rights), but also in the social action against poverty and female illiteracy, and in the culture as well to achieve a major change in mentality.