The work of Sharia and spiritual courts in Lebanon has largely remained outside the scope of public or scholarly debate. To many secularists, these courts are a reactionary phenomenon through which a group of men of religion tightly control women and families. These secularists believe that the most appropriate way to deal with these courts is to abolish them and replace them with civil courts when political circumstances allow.

In contrast, many religious figures and their followers consider these courts to be sacred establishments. Consequently, any attempt to discuss the efficiency of these courts, their type of work or the extent of their respect for individual rights, is deemed by this group as a flagrant and unacceptable violation of religious principles or a transgression against the historically-acquired privileges of the group. The privileges are sometimes considered more sacred than the religious principles themselves.

The common denominator between these two apparently contradictory positions is that they have rendered the debate surrounding these courts absent from Lebanon’s judicio-social history. On one hand, [the secularists feel] no need to discuss what is considered reactionary given that it is temporary and transient (that is, it belongs to another era). On the other hand, [the religious group feels] no need to discuss what is sacred as it is permanent and not subject to amendment (that is, it is outside time). As a result, the theoretical nature of family courts aspired to (do we want them religious or civil?) has completely prevailed over the issue of their actual and daily work in Lebanon. This completely obscured the negative or positive practices within them. It also rendered the only discussion about them –should it ever take place– hostage to premeditated ideological positions (e.g., the position toward the religious phenomenon irrespective of its practices on the ground) or to out-of-context depiction in media outlets.

 

No Legitimacy Except for…Which Sharia Courts?
 

With this ideological baggage in mind, and as part of my field research, I attended a seminar in the fall of last year held by the Charitable Islamic Guidance and Reform Society (CIGRS) in Beirut under the title “No Legitimacy Except for Our Sharia Courts”. I was expecting to hear a “judicial” discourse that rejected any criticism of Sharia Courts and their judges and laws, and attacked the advocates of draft laws dealing with the rights of women and children. From the first encounter, however, I found myself among a group of women who were discussing the issue of Sunni Sharia Courts from a perspective that was far from the secular/religious binary one mentioned above.

 

The attendees raised the following questions: Why are our religious courts and laws attacked in this manner? What prompts some to resort to international and other agreements that are against our religious traditions and institutions? What if some of that criticism is true? What does this criticism tell us about ourselves, the courts, and the legal and family system? How can we make Sharia Courts a better place for us and our families? The importance of this intellectual position lies in how the traditional equation of ‘us and them’ is undermined by invoking the other's criticism –whether right or wrong– as a means of exploring the truth about the self (that is, about Sunni Sharia Courts). This self-discovery is in turn used to reform and improve the self.

The women of CIGRS did not resort to ready intellectual or religious systems of thought to provide answers to these questions concerning the judicial arrangement under examination. The approach is different here as the answers are not readily available. Given that the courts and their methods of work on the ground are unknown to many of them, they refrained from criticizing or defending or suggesting ways to improve what they did not know. Thus, an objective and tangible rather than abstract knowledge of courts was the basis of any discussion or initiative regarding Sharia Courts. The process of acquiring such knowledge was achieved through the following central question: “How do our Sharia courts really work? How are things run at these courts? How do Sharia judges work on a daily basis?

The Right to Question Sharia Courts
 

The first step was to organize a workshop on this issue by inviting Sharia judges to present their work at the courts in several sessions. The participating women posed several questions which were sometimes close to interrogation. Some of these questions were technical and focused on the role and work of the judge. Others dealt with issues such as corruption, the qualities of a good judge, and the status of women and men before the court. In addition to this frank and bold discussion with the judges, which I had never witnessed between litigants and judges in civil courts, the participants visited Sharia courts to watch how judges deal with litigants and lawyers. The first session reached the conclusion that research regarding courts has to be developed through forming committees that deal with legal, procedural and formal issues that pertain to texts and practices. The aim is to work out a methodological plan of action to intensify the monitoring of these courts in order to develop a clear picture of what takes place within them.  Such a step would facilitate serious reform and defense plans derived from real life situations.

 

Given the type of research at hand involving the actual work of judges, lawyers, and civil and religious courts, the ability of CIGRS members to obtain information on the workings of the courts was not guaranteed. Many legal personnel might question the reasons behind such methods: Why do CIGRS members have to be present? Why do they wish to examine the world of law given their ignorance of it? Why are the testimonials and opinions of legal experts not sufficient? The suspicions become twofold if the sacred religious dimension of these courts is added to the legal one, and threefold when we take into account the male chauvinism confronting public action by women in this country.

However, according to CIGRS’s member, Rand Saqr, women activists were prepared in advance to deal with these barriers that they may encounter. “We feel it is our responsibility and right to face anyone if they are doing the wrong thing, and to demand that our rights are restored,” Saqr explained. “We did ask ourselves: Do we have the right to enter the court? Do we have the right to make the court papers public? The answer was yes, we do. We have the right to enter, question, and follow up so long as what takes place inside the court affects us. This means that we have the right to intervene. Nobody can deprive us of rights granted to us by our religion.”

 

The right to follow up and question the work of Sharia courts with a view to reforming them is a unique development in Lebanon, not only with regard to the relationship between Muslim women and the religious judiciary, but even with regard to the relationship between citizens and the judiciary in general. Reform plans usually come from the highest political levels. In this case, it was volunteers, who are not legal professionals and who come from non-governmental organizations, who enter courts to demand reforms that have been long ignored by the upper political and religious classes.

 

No for Choosing Between Religion and Rights
 

There is, of course, no ambiguity regarding the ultimate goal of this activity, which is preserving the Sunni Sharia Courts. According to the advocates of this (CRGS) initiative, the efforts to explore and reform these courts are the safest and best means to support and preserve them.  What boosts this conviction is the initiative’s accurate and critical assessment of the situation of civil courts in Lebanon to which family issues would be referred, should religious courts be abolished. Initiative members believe that these civil courts are not a judicial example to be emulated.

While secularists consider the religious aspect of these courts a sufficient reason for getting rid of them, and while the traditional religious view considers the religious aspect of these courts an adequate reason to refrain from conducting any serious questioning of their work, the women advocating this initiative look at these two issues in detail through the following argument: Religion cannot do injustice to a man, woman or child. When injustice is done to men, women, or children, this means that this injustice is the result of human error and the wrong application and misuse of religion in courts and elsewhere, and not a consequence of religion itself. Therefore, it is one’s duty to intervene, question, and reform the consequences of human actions.

Breaking the Binary of Religion and Rights
 

CIGRS women reject having to choose between religion and rights. This binary is often imposed in the course of discussions between secular and religious women, as they seek to reconcile the necessities of reform on the one hand, and the language of rights and respect for religious convictions on the other. More importantly, these efforts could restore to courts, particularly religious ones, their character as a public institution running the affairs of citizens the same way they currently run the affairs of believers (a Lebanese is not asked about his/her actual belief before entering a Sharia or religious court).

If we adopt this approach, will the importance of the nature of family courts in Lebanon be undermined when they become, regardless of their religious or civil nature, subject to questioning based on a discourse of rights? Will these courts acquire the optimal conditions of a fair judicial practice?

One could see initiatives like the CIGRS as an intellectual call for advocates of civil reform to depart a little bit from endlessly discussing the nature of courts and instead, discuss the substance and conditions of justice within these courts. For these are mostly common concerns that pertain to all courts in Lebanon regardless of their civil or religious nature.

Future of Reform: Challenges and Possibilities
 

It must be noted though, that this initiative is still in its early stages and is far from achieving any of the aforementioned goals. It is not possible to predict how successful it will be in terms of improving the work of Sharia Courts or of enhancing the rights of litigants appearing before them. It is possible, however, to determine at this point the difficulties that could face such efforts. First, legal professionals including lawyers, judges, and employees may not always welcome placing their daily work under the microscope for monitoring and questioning, especially given that the advocates of this initiative are not legal experts.

 

Secondly, shifting the focus of women initiatives from the traditional sphere of social and family work into one dealing with judicial matters  -such as Sharia courts- that are usually restricted to men, might provoke a masculine reaction that would seek to push activist women back to the narrow scope of the family.

 

Thirdly, Lebanon’s religious judiciary, which is no different from the country’s Sunni religious institutions, currently suffers from sharp political divisions. Thus, it is feared that the women’s drive to reform the judiciary will be seen as targeting political patrons of some senior judges or court officials which could draw negative reactions.

 

In conclusion, confrontational secular reform strategies have negative effects on religious reform initiatives emanating from within. This is because the attack of “others” from “outside” can undermine the legitimacy or momentum of “internal” initiatives under the excuse of needing to counter “external” critique. This was the dynamic that played out when the issue of civil marriage was recently raised and when some media channels highlighted corruption in Sharia Courts.  

Of course, this does not mean that secular reformists should freeze their initiatives so that religious reformists remain at ease. However, one would benefit from thinking of the mutual damage that some reformist trends, both religious and secular, could cause to each other. While reformists from all sides engage in an apparently endless secular-religious dispute, the “higher up” guardians of the current system, with its corruption and discrimination, regardless of whether they belong to religious or secular side, comfortably hold on to their position of power.

This article is an edited translation from Arabic.