and practices within the family (Hasso 2011: 168). I agree with Hasso, and see illustrations of such a governmentalizing project in the explanatory memorandum for PSL No. 10 as well as in the NDP report on the family courts, both of which were contained in Zulficar’s folder on the NCW legislative committee work. The explanatory memorandum of PSL No. 10 began with a paragraph about how the family was the foundation of society; how the pillars of a healthy family were religion, morality, and patriotism; and how the state had a role to protect “the true character” of the family.13 The NDP report began with emphasizing the obligation of the state to enable women to partake in the development of the country, which necessitated eliminating gender-based legal discrimination against women. The report also stressed the role of the new family courts in ensuring the “stability” of the Egyptian family. Then the report proceeded to outline the gaps in the previous court system that resulted in lengthy litigation periods, inefficient mechanisms to enforce court judgments for spousal and child maintenance, and men’s abuse of the right to unilateral repudiation and polygamy versus women’s difficult access to judicial divorce. The report noted that these legal shortcomings resulted in social and economic problems that were hindering good governance and the development of society—more families became entrenched in adversarial and prolonged legal conflicts, more family households became headed by women and live in abject poverty as husbands abandon their families and take new wives, and more children end up on the streets. The new family courts were presented as an important component of the solution to this problem as they would provide efficient and family-friendly mechanisms for solving family disputes. The report also noted that the NDP had a role to play in raising societal awareness of the significance of personal status issues and in monitoring the work of the new family courts.14
To sum up, one could say that the initiative of the new Egyptian family courts came about as the result of three agendas. One was that of the pioneer of the idea, Takla, who had a vision of establishing a therapeutic, problem-solving, family-friendly justice system based on a global model. The other agenda was that of a coalition of professional women who were pursuing (through a top-down, state-centered advocacy) gender reform in the family domain by lobbying for a series of new personal status laws. And thirdly, there was the agenda of state institutions, driven by the goals of development and governance. While these three agendas may have the shared goal of new family courts, their underlying priorities and understandings regarding the various functions of the new courts system were dissimilar in some significant aspects. The outcome was a written law that fell short of meeting some of the main goals of these different actors. In what follows, I will outline PSL No. 10, describing the main structure and features of the new courts system. I will highlight and reflect on some of the gaps in the written text of the law and how they pose challenges for the various agendas that pushed this legal initiative.
Personal Status Law No. 10: Text and Process
The Personal Status Law No. 10 has fifteen articles. The main features of the new family courts system can be described as follows: First, instead of the old system of dividing family law cases between ‘summary’ and ‘first instance’ courts, the new law stipulates that all cases are to be reviewed in ‘first instance’ family courts. Second, mediation is incorporated into the legal process. Before a disputant can file a lawsuit, he or she is obligated to file for a settlement. This means three settlement specialists, with training in law, psychology, and social work respectively, hold mediation sessions with the two disputants. This process, which is to be concluded within two weeks, takes place in settlement offices that are part of the courts system. Upon the consent of the two disputants, the mediation period can extend to two additional weeks if there is hope of reaching a settlement. If mediation fails, disputants can file a court case within a week. However, if settlement is reached and approved by the disputants, it is legally binding.
Each case is reviewed by a panel of three judges who are assisted by two experts trained in social work and psychology respectively. These experts, one of whom must be a woman, are obligated to attend court sessions, meet with disputants, and submit reports to the court. The role of the experts entails two functions: to provide another opportunity for mediation between the disputants and to submit reports to the judges with information about the dispute, the disputants, and the outcome of the court experts’ mediation efforts.
In addition, a prosecutor office is established in each family court. The role of the prosecutor is to attend all court sessions and to submit to the judges a memorandum of opinion on each case. The rationale is to provide another mechanism through which the adjudication process is improved. All disputes concerning each family are also compiled in a single court file so that the judges can be well-informed about interconnected disputes. Furthermore, special departments have been set up to enforce court judgments. Lastly, court sentences in the new system can only be appealed at the Court of Appeal and not at the Court of Cassation.15
But if we examine more closely the written text of the law, we find some gaps and contradictions, perhaps due to the divergent priorities and understandings of the main actors who lobbied for the new family courts. For example, Article 5 in PSL No. 10 instructs that in each court district, an office for the settlement of family disputes will be established and it will be staffed by three settlement specialists and a director of the office. Article 6 states that disputants are obligated to submit a petition for settlement to the office before they can file a lawsuit in front of the court, and are to meet with the settlement specialists who “after listening to them are to inform them about the different aspects of the dispute and its consequences should they continue with it and are to provide them with advice and guidance with the aim of settlement.” This article does not adequately explain the role of the settlement specialists. Does their giving “advice and guidance” also entail reconciliation efforts? Are they to provide counseling services? How do these functions relate to the goal of mediation and settlement? And which functions or goals constitute the primary role of the settlement specialists? Furthermore, Article 8 in the law legislates that whatever settlement is reached by both disputants with the assistance of the settlement office is binding, but it does not spell out how this settlement is to be implemented. This has led to many implementation problems, which I will discuss in chapter 2.
The ill-defined nature and authority of the settlement offices diverge from Takla’s vision of the alternative mechanisms of dispute resolution in the new courts system. Takla (2003b) envisioned the legal process in the new courts as consisting of three distinct stages: reconciliation, mediation, and litigation. In the first stage, efforts are made to reconcile the disputants. Takla proposed that these efforts be carried out by specialists in family relations, psychology, and family law. If reconciliation efforts fail, then in the second stage the disputants are assisted to reach a resolution to their dispute through a mediated settlement. Takla suggested that this role be carried out by the prosecutor. If mediation also fails, then the disputants resort to litigation, at which point the case is referred to the court, along with the reports of the specialists and mediators. The idea of a reconciliation stage, carried out by the specialists in social work and family counseling, is to create the space for guided healthy communication between the disputants with the aim of attending to the family bond, whereas the second stage (mediation) is about helping the two disputants resolve the conflict and claim their rights through a process mediated by court personnel with legal authority (that is, the prosecutor). In other words, for Takla, the distinction between the three stages, particularly between reconciliation and mediation, is important to ensure that the alternative mechanisms of dispute resolution are robust and can yield meaningful consequences.
In earlier drafts of the law prepared by the Ministry of Justice, there was a proposal that the prosecutor undertake the function of reconciliation. There was also a proposal in another early draft that a religious scholar assist the prosecutor with reconciling the disputants. These suggestions were rejected by the members of the NCW legislative committee (as illustrated in the drafts that Zulficar shared). In an
