11:51am , Saturday 18th August 2018

Frozen Hopes and Harsh Laws

10 October 2016

By : Suad Abu Ghazi
Cairo, Egypt, Date (Mada Masr) – On June 3, women and men decided to speak out against the Coptic Orthodox Church of Alexandria’s personal status law, especially clauses relating to marriage and divorce, to help resolve thousands of family cases stuck in legal limbo..
The mutiny of these youths against the disputed law was a turning point in ties between the head of the largest church in Egypt and Northeast Africa, and the faithful, who have been protesting internally for seven years against rules that only allow divorce in cases of adultery or converting to another religion.
“Our lordship, we are your children”, shouted Said, 30 standing amidst the youth who were protesting to draw the attention of Pope Tawadros 11 of Alexandria as he performed his weekly church sermon.
Said has been in legal limbo for five years after his wife left him five months after they were married. He wants a church-sanctioned divorce, to confirm the civil divorce he obtained in March 2013.
Said said: “The bishops around the pope told us we would meet him. But they took our cards and turned us into the police, accusing us of inciting riots.”
Adel Fikri, another youth in the same group, said he had tried to meet with the pope before the incident. “But meeting with President Sisi is easier than meeting with the pope,” he says.
Fikri claimed that his friends tried to meet with the pope but to no avail. These included Magdy Kamel, member of the Coalition for the Victims of Personal Status Cases, “but the pope kicked him out and told him he had no time for such matters,” Fikri said.
“I wish that the state has mercy on us and works to spare us from the injustice of the church by allowing us to divorce,” said Youssef, who has been suffering since the first month of his marriage in 2010. “I would be born again if I get a divorce ruling,” the diabetic father of two continued. He refused to lodge a complaint with the Clerical Council, saying this is futile. At the same time, he brought a case of “obedience” against his wife before the Family Court, but his wife responded with three lawsuits demanding alimony for her and her children, and alleged that he beat her.
Origin of the problem
The complex divorce procedures started in 1971, when the former pope Shenouda III (died in 2012) limited the admissible grounds for divorce to adultery, excluding nine other grounds that had been included in the personal status laws issued by the Coptic General Congregation Council in 1938.
This disrupted the lives of tens of thousands of families, many of whom had to wait for church rulings to settle cases among disputing couples. At the same time, the irreconcilable differences between couples are having a toll on the lives and the future of their children.
Although the government declared its neutrality regarding the issue, the security services intervened to break up the June 3’s protest, arresting participants. This reflects underlying bias against individuals seeking to reform church laws, according to lawyers and activists.
After 2008, the Ministry of Justice did not express any position to resolve the gap between the church and civil courts, according to lawyers. The only exception for divorce admissible by the church and civil courts was the introduction of the definition of adultery as “any behavior that can be explained using clear evidence as marital betrayal by any of the two parties”. However, the gap continued because no unified personal draft law has been implemented since Christian sects agreed to it from 1980 to date.
Since 2008, the Orthodox Church, and after amending 38 clauses, has refused divorce requests exceed under two conditions: adultery and change of denomination or religion. None of the spouses can divorce unless one accuses the other of adultery or one confessed to adultery, which would ban him or her from remarrying, according to church laws. The other solution that costs a lot of money is to obtain a certificate saying one has changed his/her religious denomination, or converted to another religion.
It is estimated by lawyers and people who went along with this solution that the cost of a single certificate stating change of denomination costs between 30 and 40 thousand pounds ($4,000-5,300).
Faced with this impasse, they live in tension. Some divorce cases even escalated to murder; or sedition, when one of the spouses changed her religion to get rid of a failed marriage, this reporter uncovered.
The Orthodox Church estimates the number of its followers to be around 98% of the 15 million Copts. But an official from the Central Agency for Public Mobilization and Statistics told local media that in their last census of 1986, the number of Christians stood at five million or 5.5 percent of the total population of Egypt. The church, however, rejects this figure.
Murder and sedition
Samah has been languishing in the Minya General Prison since her papers were referred to the mufti on 14 November 2012, after the Minya criminal court sentenced her to death. She was convicted of murdering her husband and dismembering him after disputes that lasted two years, during which the church rejected her request for divorce.
Samah confessed to the murder three times: before the police, the prosecutor, and then during the re-enactment of the crime. She did not change a word in her testimony, as her lawyer Yutab Yacoub said.
This journalist also documented the increasing complexity of Orthodox personal status matters which have become a cause for crimes or religious sedition.
In 2011, Abir, a Christian woman living in Imbaba, in Cairo, found no other way to split from her husband than to convert to Islam. This caused sectarian strife that led to the death of 15 and the injury of 242 with one church burnt.
Before that, there were two famous cases involving Camilia Shehata, wife of a bishop in Minya, and Wafaa Constantine, wife of a bishop in Wadi al-Natroun.
In the province of Assiut alone, where 25% to 35% of the population of four million are Copts, a total of 1,002 cases of divorce or annulment of marriages was registered between 1999 and 2004, 55 of which involved a spouse converting to another faith, according to the Egyptian Women’s Issues Association, which focuses on Christian personal status issues.

Dispute between the church and the civil courts
Amid disputes between the church and civil courts regarding the admissibility of divorce grounds, many of the couples who obtain divorce documents from the church, are unable to get the same from personal status courts of the Ministry of Justice, especially in the cases of “presumed adultery”. This is because the amendment of the 2008 regulations accepting presumptive adultery as ground for divorce by the church was not matched by an amendment in the personal status law that relies on Islamic sharia to rule in matters of adultery, which requires actual sexual intercourse and four witnesses to prove it, rather than phone messages or electronic messages. In these cases, the couples are de-facto divorced by the church but remain married before the state.
Wael said he discovered his wife’s “betrayal” three years earlier with a Christian cleric. Wael has phone recordings that allowed him to file an adultery complaint before the misdemeanor court in south Cairo. The case lasted a year and a half, but the wife was exonerated in the end because she was not caught in the act. The ruling accepted that the calls were sexual and authentic, but that the husband does not have enough proof to have her convicted.
Wael and his wife are facing off each other in the court in two different cases. He filed for divorce while she filed for khulu [forced divorce], after she converted to a different Christian denomination. This means that Islamic sharia becomes applicable in accordance to Article 3 of the 2000 amended by-law No. 10 of 2004. This means that the law is applicable to personal status disputes between Christian spouses of different denominations.
However, the family court dismissed the forced divorce case because it found that the date of changing the wife’s denomination was after the case was filed. The husband filed a case against the bishop accusing him of incitement to immorality and debaucher. He is not optimistic as he said that the “church and the courts both let me down”.
Roumani,43, resorted to filing a case of “renouncing the Orthodox faith” before the administrative court. But the latter did not rule that this fell under the “change of religion” category stated in Pope Shenouda’s amendments. Hence, it rejected the divorce case.
Roumani went through martial problems eight months after he married in 2006. His wife left him when he contracted Hepatitis C. He has so far been unable to obtain a ruling from the church to divorce for lack of grounds related to adultery or changing religion.
The author could not obtain approximate figures on the number of people who took church-related disputes to the Administrative Court, but since Pope Tawadros 11 assumed his post, there have been cases like Ashraf Anis. The latter is the first Christian to renounce the Orthodox Church in March 2013, hene becoming Christian without a denomination. Anis asked the court to compel the church to issue an admission to prove the end of his affiliation, but the church declined to respond. Nearly 19 months later, the court ruled that the church was not an administrative entity that could be compelled by the court to take measures, and dismissed the case while noting that the litigant had the right to leave his denomination according to the principle of freedom of religion enshrined in the constitution.
The story of Mariam
Mariam, 26, was kicked out of her marital home six months after marrying. She said, “There was never any peace. There was constant fighting, beating, and insults.” But she said that going to the Clerical Council would be futile.
After a marriage that lasted three years, her husband left her in 2012. Mariam cannot divorce herself from him, however, through a divorce lawsuit or forced divorce from the court, unless one of the parties changes his/her religion. She is also facing an “obedience” case from a husband who left her with two children and no alimony.”
Osama’s problem
Osama problem has been ongoing since 2008. He said that reinstating the list of 38 could be a solution. “We need a list like 38 for which courts can rule on as the basis of,” he said. He specifically referred to the article that states: it is acceptable to request divorce if one of the spouses abused the other, or did not perform his/her duty towards the other…leading to alienation and separation between them for three consecutive years.”
The differences between Osama, 55, and his wife started in the first month of their marriage in 1995. After they had two children, his wife presented handwritten diaries showing she had agreed to marry him under pressure from her mother.
Osama did not seek divorce from the Clerical Council until 2008. However, the council rejected his request citing multiple reasons including: “failure of the husband to establish presumptive adultery”. Furthermore, a marriage may not be annulled on the basis that the wife was forced to marry years later, as the maximum period according to the regulations of the council for this is sixty days
Conflicting numbers and withholding of information
It is difficult to obtain official statistics on the number of people affected by Christian personal status laws. The estimates vary between the church, NGOs, and the movements created by those affected.
This journalist tried to obtain data from the Ministry of Justice more than once over a month. The attempts ended with the head of the Judicial Information Center at the Ministry refusing to give her the data.
However, the Egyptian Women’s Issues Center, an NGO, recorded 1449 divorce issues in Cairo between 1999 and 2004. As for Luxor, it counted 35 cases of divorce based on “alienation, adultery, and abandonment” and 51 cases of objection to “obedience” warnings.
The church downplays the problem
Bishop Boula, who is in charge of the Christian Orthodox personal status matters, told Al-Watan newspaper in January: “All divorce and second marriage cases that reach us involving Copts inside Egypt and outside do not exceed 800 cases annually. A large number are requests for second marriage permits.”
Magdy Kamel stressed that up to 200,000 personal status cases have accumulated before civil courts from 2008 to date.
Ramsis Najjar, the church’s lawyer under Pope Shenouda III, puts the number of affected people between 6,000 and 8,000 families, according to statistics he collected from personal status courts.
Hani Izzat, founder of the Coptic Personal Status Victims’ League, an entity active on social media but with no legal recognition, puts the figure at 8,000.
Bishop Daniel – head of the Clerical Council in Cairo – told Al-Ahram newspaper in June that the number of cases he received in Cairo was 100 since 2010.
However, he told Al-Masri Al-Yawm on July 21: “The councils of Cairo and Giza are the largest regional councils. The old Cairo council sorted the cases and then gave them to us in two batches, the first including 100 dossiers and the second 107 in Cairo. These dossiers include some that had rulings issued by the Clerical Council since 2011. The Giza Council only has 54 cases, representing all old dossiers since 2011.”
In other words, the number of cases which received rulings from the Clerical Council since 2011 stood at 261 in Cairo and Giza alone.
Attempts to find a solution
The first attempt to address this situation began when the representatives of the three major Christian communities (Orthodox, Catholic, and Evangelical) met in 1979. They agreed to a unified draft personal status law for non-Muslims.
Journalist Karim Kamal, in her book Personal Status for Copts, said that the draft law included a chapter on divorce grounds that are accepted by the church while committing to the text of the bible. The draft law added to “actual adultery” “presumed adultery” as grounds for divorce.
The draft law was submitted in 1980 to the President of the People’s Assembly then Dr. Sufi Abu Taleb. But it never saw the light of day because of the assassination of Anwar Sadat in October 1981.
The same thing happened again 1998, when the three communities presented an amended version of the 1980 draft law to Saif al-Nasr, then Minister of Justice. However, this draft was not presented to the People’s Assembly at the time and was shelved. The draft law completely closed the door to converting denominations within the Christian faith in order to obtain a divorce.
The third attempt was in May 2010, when the three main communities met to write a unified draft law for personal status. This came two years after a dispute erupted between Pope Shenouda III and the civil court, when the latter ruled to sanction the marriage of a Coptic citizen. As a result, the pope officially modified the list of 38 and reduced divorce grounds to actual or presumed adultery as well as converting the denomination or religion. An implicit agreement ensued among the three main churches to stop issuing certificates of denominational change, according to Ramsis al-Najjar.
The deadlock returned after the revolution of January 2011, and in November 2014, when President Abdel Fattah al-Sisi urged the Ministry of Transitional Justice to prepare a draft personal status law for non-Muslims.
Expanding the grounds for divorce
Munsif Suleiman, member of the Congregational Council and representative of the Catholic Church in the committee preparing the draft law says that it provides concessions regarding the grounds for the annulment of a marriage. For example, it adds new grounds such as mental, nervous, or psychological problems or illness. Under this new category, grounds such as wife-beating are added, as a form of psychological abuse. Another ground was abandoning the marital home for three consecutive years without the consent of the wife.
Nader Sobhi, founder of the Christian Youth’s Coptic Orthodox Movement, said that the new draft list resolved 99.9 percent of personal status issues for Copts, and is far better than the list of 38 because for the first time it contains an article allowing the marriage of those divorced on ground of repeat adultery, if they declare their repentance.
Civil marriage
Social movements founded by people affected by the personal status laws are hoping to have a law passed allowing civil marriage in isolation from the church. This could resolve thousands of issues involving second marriage cases, and also help people in limbo who have obtained divorce rulings from civil courts but not churches or vice versa. It could also end sectarian sedition resulting from these marital problems.
This was the last effort made by people affected from this situation. The Christian Personal Status Victims’ League last June sent a telegraph appealing to President Sisi to enact a civil law for Christians while ensuring no constitutional challenge would ensue, according to Hani Izzat.
This happened after all churches that took part in preparing the draft law agreed to reject civil marriage, with the exception of the Evangelical church, which changed its mind more than once during the deliberations. The latter ended up accepting it and notifying the Minister of Social Justice separately. Today, this is the only church in favor of civil marriage in Egypt.
The press officer at the Catholic Church Father Rafiq Jreish said the state made a mistake inadvertently when it placed civil marriage under the fifth chapter of the personal status for Christians law “despite the fact that the state knows churches are opposed to civil marriage.”
He said that if the government wanted the law on civil marriages passed, it must do it unilaterally. “But I as a bishop during my sermon say, people, if you marry in the civil manner you will be away from the church and away from God, and your marriage is not blessed.”
The Orthodox church has the same view. Father Ioannis Kamal, pastor of the Holy Archangels Michael and Gabriel Church in Giza, said those who have a civil marriage will be renounced by the church. When they die “we will not pray for him.” He said that if “the state enacted civil marriage, the church will call on its followers to reject it. Those who have a civil marriage, let the state baptize their children and let the state pray for them when they die.”
In a telephone conversation with this journalist, he said the children were faultless and the church would baptize them even if the parents had a civil marriage.
Dr. Ikram al-Lamii, head of the department of comparative religion at the University of Zagazig, and former head of the Supreme Synod of the Evangelical Church, said: “It is the right of the state to pass civil marriage, and we encourage this because it would solve many marriage and divorce issues.”
Lamii said that implementing civil marriage is a sign of progress in the personal status issue involving Christians. Lamii warned against having a final version of the law that excludes civil marriage. “That would be a disaster, because it abolishes the [clause on] change of denomination, which was an outlet for people. If there is no change of denomination or civil marriage, this will be a disaster for Christian families. Couples would only have one option, to kill each other or change their religion, which creates more problems.”
Tarek Ramadan – legal adviser to the Right to Life Movement, said that if the state passes a civil law it would be safeguarding national security, because most sectarian tensions are related to Christian personal status issues.
Ramadan further said that civil law can bring solutions to current problems, by restoring the nine grounds of divorce from the 1938 list. This would allow implementing the grounds retroactively, thus solving old problems. It would also resolve the problem of second marriages; if divorce is obtained via civil courts, husbands can marry again according to civil law.
Unconstitutionality
The draft law faces several problems, including the non-participation by the Adventists, one of the recognized Christian denominations, which may be ground to rule it unconstitutional. The Ministry of Transitional Justice invited the representatives of the five member churches under the Council of the Churches of Egypt to participate in preparing the draft.
Reverend Rifaat Fikri, head of Media and Publication at the Evangelical Church, said that the discussion included all churches that are members of the Council of the Churches of Egypt, but said that the Seventh-day Adventist denomination is completely separate. Although the state recognizes them “I have no explanation for their non-participation in the discussion.”
Father Anwas Iskandar, legal representative of the Adventists, said that the denomination has been recognized by the state since the days of Nasser. It also has the right to build churches, establish charities, and create schools.
“How would the law apply to us when we have not agreed to it and did not take part in drafting it?”
Although the state recognizes the Adventists, the draft law does not consider them Christian, stating that: “Christian men may not marry in church someone who belongs to another religion or a non-Christian faith like Adventists, Jehovah’s Witnesses, Baha’is and Mormons.”
Duplication
Bishop Boula of Tanta and Gharbiya ran the Clerical Council for 26 years and headed the Orthodox Church committee preparing the draft law.
Boula said he saw no reason for waiting for parliament to approve the new draft. He told CBC TV last December: “As long as the church has approved the draft, it is possible to implement it at the church level until it comes to force judicially following the approval of parliament.”
He had also told another program on CTV last November: “It doesn’t matter whether the state will approve it. Our previous experience shows that even though the law was going ahead it was not passed by the state”. He also cited the move by Pope Shenouda 111 to abolish the list of 38, which was in force by civil courts.
Boula’s statements are based on Article 3 of the Constitution, which gives Christians the right to use their own laws, but also requires this to be in accordance to laws in force.
In a phone call, Boula confirmed his previous statements, especially those stating the right of the church to implement internally the regulations it sees fit. “In the previous phase, the church was implementing a list that was not in force in the courts. This is its right regardless of whether it is called a list or a drat [law].”
In contrast, writer Karima Kamal argued that the church is not a legislative entity. She says that after abolishing the list of 38 in 2008, there was chaos in the courts and this continues to date.
As long as this legislative shortcoming continue, there does not seem to be a solution in the horizon, or solutions to thousands of Copts who are victims of marital disputes, even when they lead to sectarian strife and loss of life.

* This investigation was completed with the support of Arab Reporters for Investigative Journalism(ARIJ — www.arij.net


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