5 reflects on the findings of this study with regard to the significance and limitations of the new family courts and the khul‘ law as legal pathways to gender reform. The chapter also reviews the initiatives that were being put forward in the period from 2005 to 2010 by different state and non-state actors to legislate new comprehensive, gender-sensitive, substantive personal status laws. I examine how the proposals for a new substantive family law were speaking to the gaps in the already introduced legal reforms and building on them. I also briefly shed light on why and how the pursuit of religious reform became ever more relevant and intertwined with the gender-sensitive reform of family law during this period.
I conclude with final reflections on the trajectory of seeking gender equality and justice through reforms of family laws in modern-day Egypt, with the unfolding of the January 25 Revolution of 2011 and its aftermath.
The New Family Courts: Actors, Agendas, and Goals
It [family court] is about a different legislative and judicial philosophy that is implemented in separate premises, where it is quiet, friendly, and reassuring for families and children.
—Laila Takla, Mahakim al-usra: qadaya shaghalatni (Family Courts: Causes that Preoccupied Me), 2004.
In 2002, Laila Takla—a prominent Egyptian lawyer, academic, former politician, and public thinker—published the first edition of her book on family courts. In it, she laid out her vision and passionate arguments for establishing a specialized and unified court system that would handle all family disputes. Takla argued that such a court system was based on a philosophy that foregrounds the well-being of the children and family through participatory, collaborative, and mediation-centered legal processes. The publication of Takla’s book was part of her initiative to promote the establishment of specialized, mediation-based family courts in the country. Takla had also proposed the initiative earlier through a series of articles in the daily newspaper al-Ahram.1
The Association for the Union of Egyptian Women Lawyers, the nongovernmental organization that Takla was directing, presented a proposal for the new family courts to the Committee for Recommendations at the parliament. Takla also lobbied the National Council for Childhood and Motherhood (NCCM)2 and the National Council for Women (NCW),3 specifically the legislative committee of the latter. In 2001, the NCCM was the first governmental organization to take the lead in supporting the initiative. It organized a meeting where Takla presented her arguments for the new family courts. The meeting was organized for an audience of women’s rights activists, other civil society actors, judges, lawyers, legislators, and government officials. Another speaker in this meeting was the Australian senior judge of family courts Alyster Nicholson, who gave a presentation about the Australian model of family courts. As a result of this meeting, a joint committee was established to take the initiative further. The committee members were selected from the NCCM, the NCW, the Ministry of Justice, as well as the Association for the Union of Egyptian Women Lawyers. The committee consisted of two task forces that were entrusted with organizing further meetings to study the initiative from both social and legal perspectives and propose specific ideas for the new legislation and the requirements of the new courts system.
In addition, a number of influential public figures lent support to Takla in pushing the initiative forward by organizing a series of expert meetings and workshops. These figures included Mohamed Fathy Naguib, chief judge of the Supreme Constitutional Court (SCC); Adel Sadek, the well-known Egyptian psychiatrist; Abdel Aziz al-Guindi, the attorney general at the time; Judge Mahmoud Ghoneim from the Judiciary Unit at the SCC; as well as the prominent lawyer and women’s rights activist Mona Zulficar. The latter two were also members of the legislative committee at the NCW, which led the coordination and monitoring work during the period of drafting the new law and presenting it to the parliament.
On March 15, 2004, PSL No. 10 of the new family courts was published in the Official Gazette. That same year, Takla published the second edition of her book on family courts with a detailed commentary on the new law, as well as her critiques of public and legal opinions that perceived the new courts system simply as a mechanism of modernizing and making efficient the legal procedures in personal status cases, or as a legal tool of expanding and strengthening women’s rights (Takla 2004).
This chapter traces the efforts of the main actors who spearheaded the establishment of the new family courts. I examine the vision and goals of Laila Takla, the key figure who led this initiative.4 I also shed light on the goals and roles of other actors who adopted Takla’s initiative and pushed for the promulgation of PSL No. 10 such as the NCW, the NCCM, the Women’s Committee at the National Democratic Party (NDP), and prominent lawyers and women’s rights activists who worked closely with state actors to pursue legal reforms with the goal of strengthening and expanding women’s rights in the family domain. My aim is to shed light on the varied (and sometimes divergent) understandings and aims of the different actors who were involved in these efforts, as well as the rushed and top-down process through which the new law was codified, resulting in the establishment of a court system with challenges and contradictions. I draw on data collected from interviews with key actors who lobbied for or facilitated the establishment of the new family courts. The interviewees were, for example, members of the legislative committee at the NCW, the Women’s Committee at the NDP, prominent lawyers and judges, women scholars and politicians, and women’s rights activists.
Therapeutic and Problem-Solving Family Justice: A Global Trend
Laila Takla’s vision of family courts is situated in a global trend in the legal field toward mediation-based resolution of family disputes. The global movement to promote mediation as an alternative mechanism of dispute resolution dates to the 1970s (Liebmann 2000). In the subsequent four decades, mediation has played a role—in varying ways—in different legal systems in Europe, North America, Australia, and South Asia (particularly, India and Bangladesh). In Australia, for instance, mediation is widely promoted as a legal option that is provided by different private organizations. Moreover, state courts arrange ‘settlement weeks’ in which free mediation services are provided. Furthermore, Australia paved the way for specialized family courts with the establishment of its own mediation-based family courts in 1975. In the UK, mediation was voluntary and provided by private organizations in the 1970s, whereas in the 1980s the state, through its courts, also started to provide ‘conciliation’ services. While mediation is not mandatory in the UK, courts have the jurisdiction to obligate potential disputants to attend a compulsory mediation session. Also, British lawyers are required to tell their clients about the option of mediation. In Canada, mediation has also been made an available option, whereas in the USA it has become an integral part of the legal system (Shaffer 1988).
But it was in the 2000s that the paradigmatic shift to specialized and unified mediation-based family courts took center stage. Jane Singer, professor of law at the University of Maryland, lays out a number of premises on which this new paradigm is based (Singer 2009). One premise is that a participatory, mediation-based approach rather than an adversarial, litigation-centered one is suited for the resolution of family disputes because of the distinct nature of these disputes. This is because an adversarial approach tends to make disputants more contentious while parties in family disputes need to work together because of their family bonds, such as in the case of co-parenting a child. Another premise is that what underlies family disputes are not only legal factors but also social ones, and hence, the roles that family courts need to play in such disputes and the services they should provide are both social and legal. A third premise is that the role of judges in these family courts is multilayered, extending
