Amid the political and social stirrings in the wake of the Tunisian revolution, the country’s Code of Personal Status (CPS) became a signifier for the country’s civilizational specificity. It established a first line of defense for national unity and the gains of social modernity against a cultural backlash. The same CPS is considered by advocates of such backlash as the leading cause of family disintegration and moral decadence as it deviates from the methodology of the Righteous Predecessors (al-Salaf al-Salih).

In fact, Tunisian Family Law has taken on a significance beyond its legislative framework of regulating family-related matters. It has become a common rallying point for social forces who believe in the modern state and have come together to defend the law and proactively shield it from threats. These threats arise as the political currents and civic associations maneuvering to change the community’s ways in accordance with their fundamentalist salafi-imbrued views, grow in influence.  

 

The CPS, promulgated on August 13, 1956 is considered one of the first laws drafted by independent Tunisia. The code is not lengthy. It is comprised of 169 chapters. Yet the principles it consecrated had a far-reaching effect which explains the depth of the dispute revolving around it.  

 

In fact, drafters of the original family law have rearranged the affairs of the Tunisian family. Forced marriages were abolished and marriage age was set at 17 full years for girls and 20 years for boys. Customary marriage, i.e. a marriage based on a simple unwritten verbal agreement, was also banned. Official marriage was set as the only valid form of marriage and failure to abide by marriage rules became a criminal misdemeanor. Complete equality between spouses in all matters of divorce was acknowledged, polygamy outlawed and any infringement of said rules was criminalized. Tunisian Family Law has therefore reformed family affairs, eliminating injustice to women and children.

 

With the CPS coming into force, an end was put to the clerics’ control of family-related affairs. Prior to that, the family used to follow the religious identity of the husband. The Jewish minority was to refer to rabbis councils, i.e. religious courts, in regard to family matters, and the Muslim majority to Sharia courts. However, thanks to the CPS, family affairs became a civil matter.

 

The handling of family-affairs by the judicial system, shielded from the clergy’s control, had the immediate effect of unifying the judiciary. The CPS’s enactment effectively put an end to the discrimination usually occurring between litigants, who depend on the religious legal system in which their family falls under. On September 25, 1956, subsequent to the promulgation of the CPS, a law unifying the Tunisian judicial system was issued, substituting the role of Sharia courts and successfully scoring the first CPS victory.

 

The CPS in itself is an act of power, defying socially-inherited beliefs and domestic relationships’ patterns where the realm of the sacred, customs and traditions all meet. In order to guarantee abidance by the CPS, its provisions needed to be well founded by ensuring none of these provisions stood in contradiction with the provisions of Islamic law (Sharia), i.e. namely in relation to abolishing polygamy and verbal divorce. The sheiks of Tunisia’s most prominent religious institution, al-Zitouna Mosque, had a major role in ensuring such concordance.

CPS Under Review
 

The doors of Islamic jurisprudence opened up again for Islamic jurists in Tunisia as the CPS underwent review. The majority of jurists agreed that polygamy was only allowed in Muslim communities for the purposes of propagation of Islam in its early days, and that polygamy does not constitute a constant of the Islamic creed. They concluded that it would be permissible to abolish polygamy since initially it was only allowed on the condition of treating all wives justly, with an explicit assertion of the impossibility of imparting such a just treatment. Also, ordinary people who looked up to these jurists were convinced that legal divorce serves Sharia goals of safeguarding the family unit better; they reasoned that a divorce should happen only in stable family conditions and not under the influence of impulse, lust or anger. A matter well ensured by statutory divorce.           

The strict criminal provisions included in the CPS and its supplement laws show a reliance on intimidation more than on persuasion. This strict approach helped enforce the law in practice. Under the law, men who marry outside official arrangements or take a second wife are subject to one-year imprisonment. Women who agree to marry an already married man face the same punishment. In addition, extenuating circumstances would not be applicable.

Gender equality regarding family affairs and marital rights as consecrated by Tunisian legislation came in line with the Tunisian modern lifestyle. Such a lifestyle witnessed girls’ schooling and women’s contribution to the family’s finances, which helped in the social integration of women. The dynamics of social progress pushed gender equality beyond the cadre of relationships, and established it in the CPS legal context. A much needed legislation was therefore promulgated in 1993, giving Tunisian Family Law a more progressive dimension. The [Quranic] concept of male guardianship over women (Qawamah) was excluded and it was decided that a woman having financial means should contribute in the household. Adolescent marriage was abolished as well by raising girls’ marriage age to a minimum age of 18 years, just like boys, 18 being the civil adulthood age.

 

Half a decade has now passed since the CPS’s enactment. Its laws have been reinforced with similar progressive legislation, such as the legislation enacted on March 8, 1958 regulating custody of minors and permitting adoption. After many legislative interventions aiming to reinforce gender equality in domestic affairs, the revolution came on January 14, 2011 to oust the political regime that officially billed itself as the sole protector of Tunisian women’s gains. The question that presented itself then was: What if a counter wave washes it all away?

 

In an impressive turn, Tunisia’s most prominent Islamist party, Ennahda Movement, emphasized its commitment to CPS provisions and praised the jurisprudence work it encompasses. Ennahda’s stance reflected the success Tunisian Family Law has achieved in becoming a fixture of the country’s culture. In fact, the Islamic Movement was pressured by its supporters to preserve and publicly declare support of said law. This is indeed an impressive turn in the Islamic movement’s culture in Tunisia.

 

This public declaration was not enough for the feminist movement that mobilized itself to protect and reinforce women’s gains. Thereby, defending women’s rights became the defining feature of the period. Civil society and political players all came together. Elections for the National Constituent Assembly (NCA) offered them the opportunity to emphasize their commitment to the CPS and their will to reinforce it and not simply preserve it. They have succeeded in securing a 50% quota for women among electoral candidates, in order to protect women’s right to access decision-making positions.

It was initially expected that things will surely move towards achieving reinforcement of women’s rights. However, deliberations of NCA members and statements of parliamentary blocs proved that continuous vigilance is needed to protect the Tunisian family’s attainments and safeguard the well-balanced Tunisian model of authenticity and openness.

For instance, the Islamist parliamentary majority succeeded in passing their bill regarding Chapter 28 of the draft Tunisian Constitution within the Committee for the Respect of Liberties and Human Rights. The chapter was devoted to constitutionalize the rights of women. The proposed bill spoke of “protecting women’s rights and backing their gains, women being real partners of men in building the country and having a complementary role within the household”. However, modernist defenders of women’s rights noticed the proposed “complementarity” wording as opposed to “equality”. They were able to mobilize their popular base on August 13, 2012 to get the majority to accept the clear and exact wording of gender equality in the awaited Constitution.

After being repeatedly accused of hostility towards women’s rights and their attainment in Tunisia, the parliamentary majority had to wait for National Women’s Day on August 13, 2013, to make its public stance. Its members marched along with feminists on Habib Bourguiba avenue in Downtown Tunis, in remembrance of the CPS declaration. It was a clear message to the different parties, including supporters of Islamist-based Ennahda ruling party, that no talk of relinquishing CPS will be acceptable.

The socio-political tug of war in Tunisia shows that women’s rights are now part of social awareness. After initially being introduced as a social reform project imposed by political authorities, women’s rights have become a social gain defended by society’s players, in fear of the politico-cultural authorities’ orientation.

In fact, civil society used to refrain from celebrating August 13th National Women’s Day and only acknowledged the March 8th International Women’s Day. In 2012, however, August 13th was celebrated as a popular holiday during which the authorities were simple observers. They had been isolated because of their stance on women’s rights and have since reviewed their strategy. In 2013, they decided to participate in the celebrations taking place on Habib Bourguiba avenue, the avenue named after the president who promulgated the CPS, and who as a consequence was accused at the time by Islamists of westernizing Tunisian society.

Today, CPA’s supporters successfully defended the Code and established it as an unquestionable Tunisian constituent in their fight for Tunisian women’s freedoms. However, achieving the reinforcement of women’s rights as promised in the draft Constitution will require moving forward on two levels. The first level involves achieving gender equality in social practice. A survey conducted on a population of 2,000 women by the National Board for Family and Population revealed that 47.6% of Tunisian women are victims of physical, sexual, economic or psychological abuse, and only 17.8% of them filed a legal complaint. Also, the media -which became censor-free after the revolution- uncovered social facts of the ongoing gender-based discrimination in the workplace. The right approach to combat such negative social phenomena would require raising women’s awareness of their legal rights.

On another level, efforts should be intensified to review all laws in contradiction with gender equality. However, such quest seems arduous under the current circumstances. The ruling majority is holding back on the review request of adoption law under the pretext of clear contradiction with Sharia. The request to review inheritance laws based on Islamic Jurisprudence (Fiqh) was faced with the same firm rejection.

Even though some of the political parties in Tunisian society -represented mainly by religious extremists- have openly stated their hostility towards women, the transition phase has demonstrated that it would be impossible to backtrack on women’s rights. This firmly-set freedom has been gained thanks to Tunisian women’s awareness of their attainments. Such stability was also achieved thanks to Tunisian society’s unwavering commitment to its historical patterns of social values, despite the effect of the rising tides of right-wing conservatives.

Nevertheless, the transition experience has also revealed the hardship of improving the status of women’s rights at the legislative level. Such progress can only be achieved if society’s liberal forces come together to form a counter weighing power; one that would be able to push towards the reinforcement of women’s rights in order to achieve total discrimination-free equality. Reinforcing women’s rights is the way to move forward from the stage of defending women’s existing gains to that of securing new achievements. That is the veritable safeguard for women’s rights.

This article is an edited translation from Arabic.