Manama, Bahrain, July 2015 –
Standing amidst scores of lawyers at The Supreme Court of Appeal (Ja’afari Directorate) F.A, 28, waited for her turn as drops of sweat ran down her face.
The heat of the sun drained her, but more so was her daily frustration as her divorce court case, filed in 2012, keeps getting postponed.
Her case is similar to thousands of women in Bahrain who are unable to plan their future or that of their children’s because of lengthy complicated procedures at these courts, following the Ja’afari law named after the sixth Shi’ite Imam Ja’afar Al-Sadiq and organizing marriage, divorce, custody and alimony.
“I’ve been attending those court sessions since 2012. It’s been two years of living torture; my husband beats me profusely to the point of losing my consciousness. He is impossible to live with, not even for one day. Despite all that, I will keep fighting to the end”.
Her lawyer waves her through, as the session was about to start. She continues repeating: “God is my only savior”.
F.A. works at a flower shop in the morning and a local restaurant in the evening, so that she could provide for her four children. Her husband stopped supporting them, as a result of a court case verdict.
The building of the Court is busy, crowded with lawyers, each searching for a way out of those failed marriages, custody and alimony cases. They are faced with lengthy court procedures at the “Ja’afari Courts” — looking after family matters of Shi’ite Muslims. Some of these cases have been going on for 10 years due to the absence of a a personal status law regulating this component of the Bahraini people, and an insufficient number of judges. In addition, the judges refuse to look into the evidence provided by women who are seeking divorce after being abused by their husbands or separated from them.
Courts with No Regularized Law
In Bahrain, the “Shia” denomination abstained from having their courts adopt the Personal Status law, according to Shia religious scholars, on ground the draft law had to be looked into first by the Supreme Court of Iraq, looking after affairs of Shiite Muslims.
In 2009, a Personal Status bill was drafted with the aim of combining the two sects; the Sunnis and the Shi’ites. However, the Al Wefaq National Islamic Bloc in parliament – close to the trend that refuses the adoption of the Ja’afari Doctrine, delayed this decision. This was due fear of interference by the state in the affairs of Shi’ites by using the personal status law as an excuse. Hence, only the chapters that deal with the Sunni sect under this law were endorsed.
The idea of issuing a law dates back to 1984. But since Bahrain then had no parliament, the idea was shelved. In 2002, the idea was re-examined after hundreds of women staged a strike at the Justice Ministry, demanding the law be issued. In 2003, the Shi’ite sect, and after a lot of back and forth negotiations, objected to transferring the draft bill to parliament. A march was organized against accepting it and leaders of the Shi’ite sect put up several conditions before accepting it. In the end, the law was passed but only dealing with aspects of the Sunni sect.
This reporter checked a document that proves that rules of the Ja’afari Doctrine are issued with no set of controls. The attached document shows that a request for divorce took two years at least before a verdict was issued, while such verdicts should not take more than a year, according to the personal status law and as confirmed by women’s rights activists.
A Storm of Statistics/Figures
This reporter noticed an obvious contradiction in numbers at Sharia Courts under the Ja’afari Doctrine. There was also a huge disparity between official documentation and Sharia Court statistics. This was proven by an official document released four months ago by the Family Office in charge of solving inter-family problems at the Ja’afari courts and obtained by lawyer Fawziyya Janahi. The document has been made public on more than one occasion. The reporter managed to get hold of that document in a research paper presented at a conference entitled: “Women, Rights not Advantages”  The paper includes 11,000 cases, a third of which have been on hold, awaiting verdicts for tens of years. The cases deal with alimony, custody, and divorce
According to the Family Office dealing with family issues at the Ja’afari courts (alimony, custody, divorce and “Khole”), there are around 12,000 cases awaiting verdicts since 2009. These include 3,000 Sharia cases that have been pending since 2011. The figure includes 500 delayed divorce cases since 2011. The average life span of a case to be resolved at the case is between four and 11 years.
The reporter gathered some information from various lawyers regarding the nature of the cases and duration it takes to be finalized:
|average duration||reason for divorce|
|3 years||Drug addiction|
|4 years||Psychological disturbance|
|2 years||Sexual issues|
|3 years||Prison sentence|
|2 years||Aggressive behavior|
|4 years||2-year abandonment|
|2 years||Stealing form the wife|
|1 year||Sexual abuse|
On the other hand, the Supreme Court of Justice presented new statistics that showed even further contradictions. It also included comments of lawyers, specialists and women’s organizations. There at 1,486 divorce cases being looked at by Sunni courts and 1,385 by courts following the Ja’afari Doctrine. There are 4000 cases at the Court of Appeal though some inside sources put the figure at 5000.
The latest figures presented by the Ministries of Justice and Islamic Affairs put the number of divorce cases in 2014 at 1,795.
Dr. Abdallu al-Maqabi, Psychological Consultant at the Ministry says that the years 2013 and 2014 saw an increase in the number of divorces issued by the Ja’afari court – 700 from a total of 2,500 requests for divorce.
This alludes to the fact that the Ja’afari courts issued verdicts for less a third of the cases presented during those two years. Men of Religion hold the Ja’afari legislative body responsible for the delays. They believe the problem is not due to the lack of a firm decision on the part of the Ja’afari sect, but is caused by the insufficient number of courts, as well as a delay on the part of the judges in issuing verdicts.
Dr. al-Maqabi- who supports the Ja’afari Doctrine – confirms the issue of insufficient number of judges. He informs the reporter that out of 17 judges, only 9 are actually registered and could assume their positions. On average, they receive 20 cases a day.
Worse, a new law, issued weeks ago, allows judges to have two extra days off a week, reducing their working days to three. In “Khole’” cases, when a wife asks for divorce, the Ja’afari court conditions this to having to give up custody of her children and based on the personal recommendation of the judge. As for the Sunni courts, whose reference is the personal status law, the case is different. Giving up custody of her children, in exchange for divorce, is not permitted. The custody remains with the mother. The father is obliged to pay alimony for his children, as per article no. (98) of the law. [Frame 3]
Ja’afari courts do not consider as reason for divorce if a husband abandons his wife or stays away for a long period of time. The Sunni Courts, however, set one year as an acceptable duration whereby the wife has the right to ask for divorce, according to article no. (110). The Family Affairs law grants the wife the right to divorce in the “Khole” system, provided the wife gets a sum of money no more than her dowry (article no. 97.) The Ja’afari courts do not set a limit to the “Khole” divorce. That is why a number of husbands exaggerate their demands, with some husbands asking for thousands of Dinars in order to divorce their wives. In some cases, the judge refuses to grant the divorce even if the husband gets the required sum.
“Z.”… awaiting death… at the hands of the Court
Despite the fact that many women fail to get their divorce sorted out within the Ja’afari courts, “Z” faced atrocious circumstances. That lady is awaiting the unknown. The husband had asked to have his wife back- based on the fact that she is “Nashiz” i.e. her behaviour is out of line.
Having a paranoid husband, Z., 28, is terrified of the prospect of going back to him. She has to wait for the verdict, for a month. The husband who has been diagnosed with paranoia, according to Dr. Sherifa Sewar, therapist at the Batelco Care Center for Victims of Domestic Violence, had threatened to kill his wife more than once.
Z. lives in a conservative neighborhood where people are easily influenced by the voice of religion. She recounts: “I accepted my fate. I agreed to marry someone with modest education and finances. He had no apartment. My dowry was Bahraini Dinar 100 ($140). Even the gold, I had to borrow from my aunt. I didn’t realize that my life would be turned into a series of suffering”. At this point her father says: “We took our case to the Batelco Centre. There, the specialist confirmed that the husband, 30, suffers Paranoia and needs a life-long treatment. The father of the husband refused to be interviewed by this reporter and accused him of deliberately seeking to tarnish his son’s reputation.
According to Sharia lawyer Fawziya Janahi, Ja’afari courts do not acknowledge any reports or recommendations issued by social affairs centres on the refusal to give the mother custody over the children, regardless of the damage he might cause them. Hence, the courts still grant custody to the father, despite all the reports presented. Z.’s father says: “The judge refused our request to call in a therapist as a witness. In addition, the husband’s lawyer raised the court’s doubts as to how biased the therapist is; siding by the wife, despite the former’s long professional experience. When the lawyer asked the court to summon another therapist to appear as a witness, the judge refused and provided no justification.
According to the Sunni interpretation of the Family law, if you married woman is at a disadvantage, then getting divorce is allowed, especially if she is abused. According to Janahi, the Ja’afari courts delay divorce procedures, giving the husband a chance to resort to other means to claim his innocence, like using the case of “abandonment.”
In one case, the husband abandoned the wife for five years. After going through a number of sessions, over three years, the husband returned and the court dismissed the case. Janahi says that as far as divorce cases are concerned, the procedures in the Sunni sect is faster than those of the Ja’afari Docrtine, where the judge suggests that the wife should accept her fate.
Approval of The People
Sheik al-Sayyid Majeed Al Mishal, former head of the Olammaa (clerics) Islamic Council, says: “Some people try to exploit the problems we face at the courts including the suffering of women, in order to justify the need to resort to Ja’afari interpretation of the family law though the two questions are different”.
He adds: “The problem has nothing to do with the absence of the Ja’afari part (of the law). Rather it has to do with the short working hours of the judges. We sympathize with some cases that have no grounds. We do not belittle women. We need to have more judges and courts”.
Sheik Mishal, the last president of this council, says: “In cases where a bill is issued with no consent, the Shi’ite religious leadership will call the people for a street protest, in objection to the law, which should be approved of by the Higher Council in Najaf. He confirms that the Council has reviewed the draft law and studied its various articles. However, the problem lies with parliament, whose members have to approve it as they have the final say. The Council demands that the government should guarantee that this law is not to be revised unless under the supervision of the Shi’ite leadership, represented by the Council. He proceeds to say: “Family is the only solid thing standing. Family relationships are sensitive matters. This has to follow Sharia law which is related to issues of honor and heritage. We do not accept that the President of the Ja’afari Awqaf (religious endowment), Sheikh Mohammad al-Asfour, decides on articles of this law, as his reference point is a religious one.”
He adds: “Currently, we have no contact with the government and we are not pushing for a decision regarding the law. We met previously with certain government bodies. We confirmed that any changes would have to be supervised by the Higher Council in Najaf, just as the case is with the Shi’ites in Kuwait [Frame 4] who refused to have the law under the supervision of parliament, as the latter has no stance on Fiqh or Sharia and therefore, has no religious authority”.
Representatives of the Shi’ites are supportive. However, some object to the position taken by Sheik Mishal. Those Shi’ite opponents mainly come from the Awqaf Ja’afari Council, part of Ministry of Justice and Islamic Affairs.
The Council sees that the time is ripe to resolve these issues. They have called on the media and civil society to initiate an awareness campaign in order to clear any confusion with regards to issuing this bill.
Sheik Mohammad Mohsen al-Asfour, President of the Ja’afari Awqaf, confirms that issuing the Ja’afari side of Family Law, “is an urgent matter”.
He also announced his support of civil movements and all those who work towards gaining justice for Bahraini women.
Sheik Asfour is surprised by the rhetoric of “those voices that are obstructing the law” as the latter talk about guarantees in return for endorsing the law while ignoring the suffering of Bahrani women whose fate is unknown and left to the Ja’afari courts for year.
At the Awqaf Council itself, certain officials, who prefer to remain anonymous, accuse Shi’ite religious men of creating obstacles regarding the law, in order to maintain their power and control over affairs of their sect.
Those individuals also expressed concern at the continued insistence of these scholars to reject the law without offering reasonable justification as well as threats to push women to demonstrate in the streets on ground the proposed law violates Islamic Sharia.
Sheikh Mishal disagrees with these concerns. ‘Shi’ite political leaders do not seek personal gains or power. “They are not after worldly matters”
“S.”, 32, did not want to go into the details of the ordeal with her husband before the Ja’afari courts, due to family and religious considerations. She says she had been forced by religious figures to demonstrate in 2006 while carrying her burial attire “Kafan”, against the Ja’afari side of the law on ground it “contradicts Sharia”.
She recalls the big demonstration where Shi’ite women marched in support of religious figures who oppose the law. “This is torture in its true form. When you walk in a demonstration, carrying your ‘kafan’ and rejecting a law that would save your life”.
Moreover, I was forced to say “No” to the law and now I feel distressed.”
Sheikh Mishal denies the story relayed by “S”. He says that “People went out, on their own will to support the anti-law position of their religious leaders”.
The Association of Bahraini Women, and the Family and Legal Solidarity Department at the Women’s Union confirm the increase in the rate of Bahraini women exposed to family abuse, including some whose cases are on-going at the Ja’afari courts. They also record a decrease in the number of women, resorting to Sunni law, to win a speedy decision on divorce, custody or alimony.
In September 2008, the Women’s Union, which is composed of representatives of Bahraini Women associations, lobbied for forming an office that would offer legal and family support to disadvantaged women.
Fakhreya Shabbar, a specialist at the office, says that a lot of women are suffering because of the lack of implementation of the Ja’afari law and delayed court verdicts.
She gave the example of a woman whose husband wanted to divorce her. He asked her to denounce her custody over the children, take care of all legal expenses incurred and pay back the dowry, even though he is the one who is asking for the divorce. The case went on for six years at the Ja’afari courts because the wife could not pay back the requested sum of money.
Reem Madan confirms that she was the defense lawyer in four Sharia cases during 2014. Two of them were under the Sunni law and the other two under the Ja’afari Doctrine. The verdict of the first two came out in a few weeks and women won the right to divorce. However, the other two cases under the Ja’fari law are still pending.
Lack of gender equality in Bahrain stands in contradiction with the Constitution which says all Bahrainis are equal before the law.
Madan adds that she stopped accepting Ja’afari cases because of the vague procedures. “I was the defense lawyer in a “‘Khole” case. However, I declined the case when two years had passed and the Ja’afari courts still had not looked into it. Unfortunately, these courts do not consider the psychological harm caused to the wives as a result of the behavior of their husbands, which is usually immoral. They only consider the financial harm”.
“These days, and in their rulings, the Ja’afari courts judges do not follow the law”, says Sami Siyad, a lawyer. He points to the lack of a solid legislative reference point which people could refer to in cases of Sharia courts including a clause that confirms that all are equal before the law.
Taqwa al-Sodour, former president of the National Security, Defense and Foreign Affairs Committee in Parilament, says the draft law presented by MP’s regarding issuing the Ja’fari Doctrine part of the Family Law was presented to the President of the Parliament in December 2013. The draft law should follow the constitutional procedures. She added that, despite its importance, this process is taking longer than it should.
Parliament has the authority to make a decision on the law in a speedy manner, just as happened in other past situations.
Mr. Salem al-Kawari, Head of High Court, made an announcement that was published on April 30, 2015. He said that the Ja’afari segment of the Family Law “has become an urgent matter when with regards to monitoring acts of discrimination.” He added that he hopes to issue one unified law for both sects; pointing out that the differences do not exceed 5% and we agree on 95%. We need one law to achieve national unity.”
During a tour of the High Court, an Egyptian lawyer was talking with a Shi’ite woman consulting him regarding her court case, despite the fact that according to Bahraini law, only local lawyers could be hired by women in Sharia cases. The lawyer addressed the reporter in a loud voice saying: “Do something for those women … This is true oppression and humiliation that is not acceptable … The records indicate that there are more than 10,000 cases.”
[Frame 5] Shia Status in Kuwait
Lawyer Mohammad Thaar al-Utaybi says that article 35 of the Kuwait Constitution guarantees freedom of belief, describing it as “an absolute freedom that should not be restricted. It also grants people to practice their religious rituals, obliging the state to protect and respect cultural traditions. Family law no. 51 of 1984 says in article no. 346:” people who do not follow the Ibn Malek sect, should follow laws pertaining to their own sect. Utaybi pointed out two issues facing the Ja’afari sect in Kuwait, including the lack of a personal status law that follows the Ja’afari sect.
[Frame 6] Law in an International context
In November 14, 2008, the Committee on Anti-Discrimination against Women recommended the urgency of issuing a Family law in Bahrain, initiating an awareness campaign in order to achieve stability within the family, according to article no. 38 which Bahrain had signed. In September 2013, international human rights organizations demonstrated their support of “the Ja’afari Doctrine”. This was clear during the participation of the Bahraini committee at a special session conducted by the Human Rights Council affiliated to the UN in Geneva. One recommendation was that of conducting a comprehensive review of the human rights and issuing a Personal Status law in Bahrain.
This investigation was conducted with support from Arab Reporters for Investigative Journalism, ARIJ: www.arij.net, and coached by Ghassan AlShehabi