Personal status of citizens should be protected by the Constitution

The Personal Status Law, currently being reviewed by the Senate, will be seen as the litmus test of the state’s commitment to the country’s Constitution and, therefore, the women of Jordan as citizens of this state. How we move forward on this law will showcase the measure of our country’s understanding of the requirements of building healthy modern families, protected by state and its law, and therefore contributing to a healthy and viable society. 

We can mince words and sweeten the messages, but the bottom line is if the government, both houses of Parliament, as well as society at large, want to prove that Jordan is the socially mobile modern state that it claims to be and that our way of life is protected by our Constitution, then this is their opportunity to prove it.

The Personal Status Law, which governs the lives of families in Jordan, including their marriage contracts, their divorce rulings, paternity, alimony, inheritance, visitation rights and other elements of family life in Jordan, epitomises all that is patriarchal about our social justice system. In its current form, it sanctions male hegemony over female relatives and denies women equitable access to financial and economic resources that would allow them independence and economic viability. 

The temporary law, which has been in operation since 2010, was hastily passed by the Lower House of Parliament 10 days ago in marathon sessions that purposely skimmed over recommendations from women, legal and human rights civil society organisations. Conservative and Islamist parliamentarians colluded to reject the recommendations that were based on studies of the injustice and suffering brought on by rulings based in some articles of the temporary law, and highlighted the dire lived reality of Jordanian families, as well as refugee families impacted by its unrealistic dictates.

In fact, even the recommendation of the minister of awqaf and religious affairs was dismissed by the legislators, and the government, as they all filed to maintain article 297 of the draft law, known as the “mandated will” or “wasiya wajiba”, which gives inheritance to the grandchildren born to male children and denies it to the grandchildren born to the daughters. Despite clear explanations from the minister that this article cannot be described as a Sharia dictate and has not been adopted by any of the four key Islamic jurisprudence schools, legislators still voted to keep it. The vote, in the opinion of most activists, showcased that legislators were more focused on maintaining the hegemony of men over the family wealth and assets rather than achieving justice or following sharia law. This move was in contravention of the Constitution’s Article 106, which clearly states that Sharia courts in Jordan will apply “Islamic Sharia”. This is understood to mean that interpretations to inform legislation, constitutionally cannot be extracted from “Islamic fiqh” as it appears happened with this specific article and, therefore, is not in line with the Constitution. 

Another contested article was Article 156 of the temporary Personal Status Law, which provides the end of marriage compensation in cases of arbitrary divorce. Civil society and legal experts recommended that the article provide for financial compensation of “no less than three years of nafaqa and take into account the financial ability of the husband, the age of the wife and the length of the marriage, and is paid in full if the husband is able or in instalments if he is not”, to replace the current article, which stipulates that compensation would be “no less than one year and no more than three years of nafaqa”, and does not take into account the wife’s age or the number of years that they were married.

Again, what is the philosophy behind not taking into account the age of the wife or the length of the marriage when considering compensation in arbitrary divorce cases. How can the compensation after one year of marriage, and if the wife is still young and, perhaps, able to find work or remarry, be similar to a divorce that happens after 30 years of marriage, when the divorced wife is unable to remarry or find a way to earn money?

It is clear that the legislators of the Lower House did not take account the legal or constitutional basis for this article and appeared to focus instead on ensuring that arbitrary divorce remains accessible to men and less financially painful, while at the same time safeguarding men’s control over the family assets and wealth, even after decades of marriage. What they legislated was a win-win situation for men and a truly damaging state for women.

There are also constitutional arguments to showcase that this article contradicts the spirit and essence of the Constitution that requires the state, as part of its sacred duty, to guarantee and protect the “social integrity” of all citizens (article 6/2 of the Constitution), and contravenes the Constitution in Article 128, which stipulates that legislators cannot contradict or diminish the rights and duties of all citizens.

A four-year review of compensation paid out by courts, 2011-2015, under this article shows that the maximum that has been paid in arbitrary divorce cases is JD2,880 at the rate of JD80 a month. So a woman who has been married for 30 or 40 years and who has been looking after the household and contributing to family wealth and assets for three or four decades, could be kicked out of the marriage home arbitrarily at the end of her “service” with only JD 2,880 to start her future life alone.

If we only treated her as a lowly employee, she would have received a compensation of half a month every year for the number of years she worked. We are not even discussing here the fact that the family house would remain with him, because, in most cases, women are not listed as co-owners of the family home, and any other assets, including land and property, would remain his. What justice is this? What social integrity is the state protecting with this clearly patriarchal and discriminatory mindset? What rights has the state guaranteed for its female citizens?

And although there are really so many articles in this temporary law that are unfair, unjustifiable and truly embarrassing for us as a country at this time and age, I am going to focus on one more article because of its urgency and relevance today. 

That is Article 10b of the Personal Status Law, which allows a judge, with sanction from the Chief Justice, to give permission for girls who are 15 years and one day old to marry. I have heard protestations from Islamist or conservative voices who seek to protect this article under the argument that the West is playing double standard by highlighting this exception as “underage marriage” in our world, while allowing girls to marry at 13 or 14 in the West.

That argument ignores the fact that marriage at this age is not only considered to be underage marriage, but actually is also a “forced marriage” in most, if not all, cases in our world. Unlike the West, where the choice of partner and decision to marry is almost always that of the couple, even if they are underage, in our world the decision is more often than not that of the male guardian.

Again and again, we see and hear of young girls being married off to “protect” them. This protection is estimated by the male guardians or mothers seeking to place their daughters in what may, at first, appear to be a “better” situation. We have seen an increase in early marriage among refugee communities in particular, where families want to place their daughters in what they think is a “safer” environment. And we understand that this provision covers a lot of emerging problems tied to registration of marriages, child paternity cases, etc.

But what we have also seen a lot of is the abuse of this article’s provision allowing girls to be used for monetary gain for their families or, even with the best intentions, effectively denying the girls the opportunity to grow into well-educated, economically functioning and socially able citizens who are able, when more mature, to choose their own partners for the lifelong journey of marriage. The numbers are also quite shocking and indicate that what we are dealing with here are not “exceptions” but truly a growing trend. In 2015, the Department of Statistics’ numbers showed that the percentage of underage marriages was 18.1 per cent, a significant rise from the 2011 percentage of 11.6 per cent.

The recommendation, not only by activists but also the Higher Population Council and the Ministry of Planning, to place further and stricter controls on the sanction of early or underage marriage, , is based on an understanding of the damaging reality of the early marriages on the social, economic, mental and physical health of the girl, as well as a requirement of the state to uphold its constitutional responsibility under Article 6/5 to protect childhood from abuse or damage.

What we always strive for in Jordan and fully understand is that we, as a country and people, are on a journey of growth and development. Our primary informer for this journey is our Constitution. This really is our contract, so to speak, on so many levels. Our Constitution specifically assigned the personal affairs of families to Islamic Sharia courts implementing Sharia justice. The Chief Justice has already declared, in a letter accompanying the temporary law and published with it in 2010, that the law also takes note of modern developments in science, thus the admission of DNA testing in proof of paternity, considers different schools of Islam and, most importantly, adheres to the Constitution. 

Under this contract, we cannot, and should not, allow subjective thinking and opinions to encroach or meddle in our personal lives, nor inform our legislators. Patriarchy, greed and the bullying of women and children to rob them of their constitutional right to social and economic viability, and close all doors, thus leading to their financial independence, are not values that are protected by our Constitution and they certainly should not be the values that the lower and upper houses propagate and protect.

The Senate, as the ultimate arbiter of justice and protector of the Constitution, should wake up to its responsibility and protect the rest of us from those who hide behind narratives of piety and tradition to rob the rest of us of our rights. To that end they need to reinstate the recommendations of civil society to the temporary Personal Status Law and return it to Parliament, where the message that the Constitution of Jordan still reigns supreme must be understood once and for all.

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