The status of women in Lebanon
Women and Lebanese women,
partial advances and traditional burdens
Conference on Zoom onNovember 17, 2021
By Nada Nassar-Chaoul
Professor at the Faculty of
Law and Political Sciences at
Saint Joseph University, Beirut
First of all, I would like to thank the “Change Lebanon” Association in the person of Dr. Ghada Hatem, its President Mr. Karim Hatem and all its members for the precious work of solidarity that they are doing in favor of our country, much tried the last two years, and especially for their faith in the possibility of change in Lebanon -change of mentalities and change of practices- concretized by the beautiful name that they have chosen: “Change Lebanon”.
I would like to thank you for your trust – which I know I owe primarily to my legal colleague and lifelong friend Marie Sfeir-Slim – trust that will allow me to present the current status of women in Lebanon in terms that are, I hope, clear and, as far as possible, far removed from the technical legal jargon that lawyers are usually fond of.
From a methodological point of view, it is impossible to speak in Lebanese law (as one would in French law, for example) of the status of THE woman, one should rather speak of the status OF women, since there are as many distinct rules as there are community regimes of personal status, the demand of civil society for a unified personal status having not yet been achieved. It is therefore necessary to note the scattered and fragmented nature of the various legal rules applicable to women in Lebanese law, given that there are currently 19 officially recognized religious communities. There are, however, civil laws applicable sometimes -by default- to specific community groups (e.g. the Civil Law of 23 June 1959 on inheritance (i.e. inheritance) applicable only to non-Muslims), sometimes to all Lebanese citizens (e.g. Law No. 293/2014 of 7 May 2014 for the protection of women and other family members against domestic violence).
In the course of this presentation, I will opt for an approach that I will call socio-legal, since society with its rites and practices, its culture in short (which we lawyers call custom), always precedes the law. Indeed, even if it happens, quite rarely, that the legislator plays the role of a pioneer of change, generally, he intervenes only after the fact in order to consecrate the rules on which there is a consensus in society, to express them in an intelligible way, to organize them and to regulate life in common for the good of all. Hence the importance of a dynamic sociological approach to the issue of women, alongside the classic technical legal approach.
General
Women obtained the right to vote in Lebanon in 1953, before Switzerland, which is said to have obtained it only in 1971. In 1969, the judiciary welcomed the first woman judge, in 1974, the Lebanese woman obtained the right to travel without her husband’s authorization and in 1994 (Law No. 380 of 4 November 1994) the right to practice commerce without his authorization. In 1996, by virtue of Law No. 572/96, Lebanon ratified the CEDAW Convention on the Elimination of All Forms of Discrimination against Women, while making reservations with regard to personal status and the granting of nationality to children. Since 1998, there has been a National Commission for Lebanese Women working to establish national mechanisms to improve the status of women.
1. Privacy Policy
1.1. Partial progress
Thanks to the relentless activism of feminist associations (notably the association
“Kafa
(Enough is enough) and some jurists (let us salute here the remarkable work done by a pioneer, the late lawyer Laure Moghaizel), thanks to the pressure exerted by the civil society and relayed by the
Thaoura
Since October 2019, and with the support of international organizations, especially the UN, and NGOs working for human rights and the improvement of women’s status, some progress has been made in Lebanon over the years in terms of women’s private lives. The main ones, belonging to the field of criminal law, are the following:
a-Honour killing :
This crime, rightly qualified by the late Laure Moghaizel as a “crime of dishonour”, allowed a man who discovered his wife, his daughter, his sister, his ascendants (his mother or even his grandmother!) with a man in a so-called “suspicious” situation
“mouriba”
He had the right to kill her in order to clear his honour, while benefiting from an absolute excuse, as he was exempt from any punishment (art. 562 of the Penal Code). In 1999, a first reform granted only mitigating circumstances, before a law of August 5, 2011 abolished purely and simply the said crime of honor. Since then, since it no longer has any specificity and does not benefit from any favour, this crime has fallen back into the common law of criminal acts and has become assimilated to any other criminal act and punished by the same penalties.
b-Adultery :
Adultery is still considered an offence under Lebanese law and is punishable under the Penal Code by imprisonment of between three months and two years, unlike modern legislation which has decriminalized it. Previously, the Code had been particularly macho, since adultery by the wife was punishable, regardless of the circumstances, by imprisonment for a term of three months to two years, whereas the husband was punished only if he committed adultery in the marital home or if he had a known concubine, and then only by imprisonment for a term of one month to one year. However, progress was made in the area of adultery by Law No. 293 of 7 May 2014, which instituted a kind of “equality” in adultery by imposing the same penalty on both spouses in case of adultery.
c-Theft :
It is worth noting the repeal by a law of 16 August 2017 of article 522 of the Penal Code, which allowed a rapist to escape punishment if he married his victim. In addition, Article 3 of the Law of 7 May 2014 recognises the offence of “use of moral, sexual or economic violence or threats exercised with the aim of forcing the wife to have sexual relations”, which constitutes a form – albeit attenuated – of consecration and punishment of the offence of marital rape.
d-Sexual harassment :
In December 2020, a law criminalizing sexual harassment, whether verbal, physical, or cybercrime, was passed by the Lebanese Parliament. The penalties are 1 to 12 months in prison and a fine of 3 to 10 times the minimum wage (currently 675,000LL). They are increased if the harassment is carried out against a minor, a disabled person or in the workplace, which, as we know, is the preferred area for sexual harassment.
e-Domestic Violence :
Law No. 293 enacted on May 7, 2014, aims at the protection not only of women, but also of other family members, from domestic violence. This is achieved through, on the one hand, a broad definition of domestic violence including the omission of certain obligations and threats and, on the other hand, an equally broad definition of harm, including not only physical and sexual harm, but also psychological and even economic harm. This is achieved, on the other hand, thanks to a modern protection system: appointment of public defenders in each mohafazat to receive victims’ complaints, establishment of investigations using social workers, creation of a unit specializing in domestic violence within the General Directorate of the F.S.I. (equivalent to the CRS), including women trained in conflict resolution, submission by the judge of the aggressor to rehabilitation programmes in specialised centres, temporary ban on the aggressor’s access to the family home or sequestration of the latter, specific measures for the protection and shelter of victims in the event of imminent danger with, if necessary, care for the victims of violence, if necessary, coverage of the medical and hospital care required by their condition, measures to protect the family home and its contents, informing the victim of his or her rights, including the right to be assisted by a lawyer, setting up a special fund to help and support victims of domestic violence, etc. In the wake of this, a hotline has been set up by the ISPs to receive complaints from victims or even witnesses of domestic violence.
Unfortunately, the protective device of the 2014 Act is defeated by Section 22 of the same Act which reserves the personal status rules of the various religious communities as well as the jurisdictional rules of their courts. To put it more clearly, if any of the provisions of the new law are already regulated by Community legislation or if they fall within the jurisdiction of their courts, the latter shall prevail. Thus, in practice, the civil law against domestic violence has only a subsidiary and residual role, the texts and the community courts being, in practice, hierarchically above it and, benefiting from an exclusive competence, they can, in the most legal way, put it in check. As is often the case in Lebanese law, one takes away with one hand what one gives with the other!
1.2. Traditional weights
They reflect a patriarchal society in which a woman moves from the authority of her father before marriage to that of her husband after marriage.
a-Equal inheritance :
An attempt to unify Lebanese inheritance law for all communities, which had already begun during the Mandate period, was pursued after independence with the draft law tabled in the House by Decree No. 16198/K of 7 September 1949. It gave rise to several grievances on the part of the Muslim religious authorities concerning, on the one hand, a possible modification of the rules of the Chareh of divine essence and, on the other hand, the fact that the project deprived the Charhi courts of their jurisdictional competence to the benefit of the civil courts (bearing in mind that the judges of the Muslim courts are civil servants of the Lebanese State, receiving their emoluments from the latter, which is not the case for the clerics of the various Christian courts). As a result, the civil law of June 23, 1959, which established the fundamental rule of equality of inheritance between men and women, is only applicable in positive law to non-Muslims (i.e., Christians and Israelites, a recognized community in Lebanon). Thus, since 1959, Christians have no longer been subject to the famous Chareh rule that ”
As for your children, God commands you to give the boy a share equal to that of two girls” “Wa lil zakar mithla hazz al ounthayn”
(Surah IV, Women-An-Nissa, verse 11)
.
On the other hand, the Muslim woman, regardless of her place in the family, wife, sister, daughter or other, receives only half of the man’s inheritance. In addition to this discrimination, in Hanafi law, i.e. in the Sunni community, in the absence of a male heir, the daughter receives only one third of her father’s inheritance, the rest going to the male branch of the family. However, this is not applicable to the Shiite community where the daughter can receive the entire inheritance from her father even if there is no male heir. This explains, on a sociological level, the fairly high number of conversions to Shi’ism (about 350 Sunni families per year) in order to get their daughters to escape this unfair fate.
b-Discrimination related to marriage :
b.1-Conditions of marriage :
*Legal age of marriage:
It is a matter for the law of each community, which does not always set it down in its texts, which gives rise to early marriages (6% of women are married before the age of 18, the scourge affecting above all Syrian refugees married by force for economic reasons). Women’s associations have carried out numerous campaigns to raise awareness of the issue, and for more than three years have been submitting a draft unified civil law setting the age of marriage for all Lebanese boys and girls at 18 years, motivated by the need to bring Lebanese legislation into line with the New York Convention on the Rights of the Child of 3 September 1990, which Lebanon ratified in 1991. If this project is still lying in the drawers of the Assembly, the pressure seems to have borne fruit – even if partially – since Dar El Fatwa, the highest Sunni religious authority, has just taken, on 22 April 2021, a measure fixing the minimum age of marriage at 18 years, with exceptions allowing marriage at 15 years, provided that favourable reports from doctors, psychologists and judges are submitted, which is regrettable and opens the door to possible abuses.
*The forms of marriage :
-Monogamy and polygamy : Polygamous marriage (4 wives) is still a positive law in Muslim law, although its number has decreased significantly due to changing mores and economic pressures, especially in urban areas. On the other hand, it is sometimes used as an instrument of fraud against the law by married Christians who convert to Islam in order to secure legal status for their mistress. It should be noted, however, that the Christian ecclesiastical courts refuse this abusive diversion and continue to grant the first Christian marriage all its effects. The same position of protecting the first family in terms of inheritance is generally adopted by the Lebanese civil courts on the legitimate basis of the adage
“fraus omnia corrumpit”
or fraud corrupts everything.
-Civil Marriage: The optional possibility of civil marriage in Lebanon, without having to travel abroad (usually Cyprus or France), is seen as a way for Lebanese women to escape the discriminatory rules of the various community personal statutes and their application by religious judges, who are often untrained in the resolution of marital conflicts and whose mentality may lack modernity. It is also a fundamental civil right, that of freedom of conscience, enshrined in the Universal Declaration of Human Rights of 10 December 1948 and in article 9 of the Lebanese Constitution. In law, this option is based, by analogy, on the possibility for Lebanese to marry abroad for civil purposes, such marriage being expressly recognized in Lebanon (article 25 of Decree 146L/R) and being subject, as regards its effects, to the foreign law of celebration, which allows, in case of divorce, recourse to the Lebanese civil courts. A first attempt was made in 1998 with the optional civil marriage project, known as “President Elias Hraoui’s Project”, whose text was sent to Parliament, before an outcry from all religious authorities, both Muslim and Christian, put it to rest. Civil marriage activists have nevertheless continued their fight and, forcing the legal system in force and the social and religious customs and exercising what could be called “a pressure of fact on the Law” according to the word of Professor Marie-Claude Najem, couples have contracted marriages – inevitably and highly publicized – before a notary in Lebanon, having previously crossed out the mention of their community from their civil status documents. After the first of these marriages, that of Nidal and Khouloud -mixed as it is often the case- it is the marriage of two high level jurists Abdallah Salam and Marie-Joe Abi-Nassif which made the headlines, because of their long fight for two years to have their notarized marriage certificate registered on the registers of the civil status. Recently, the Ministry of Justice headed by jurist Marie-Claude Najem issued two letters confirming the validity of marriages concluded before a notary and their registration in the civil registers, thus putting the ball back in the court of the Ministry of the Interior.
It is not necessary, it seems to me, to expose, in this framework, the details of the controversy relating to the validity or not of the act of striking off one’s community from the civil status, which I consider, for my part, as legally valid, (For an exhaustive study of the issue, see Nada Nassar Chaoul, “Du mariage civil célébré au Liban”, Travaux et Jours, No. 95, Fall 2019). Once this preliminary question has been resolved, there are still many legal arguments against the validity of the contract concluded before a notary in Lebanon, with two texts, one applicable to the Christian communities (Article 16 of the Law of 2 April 1951) and the other to the Muslim communities (Order 53/LR of 30 March 1939), declaring it null and void. Moreover, the Lebanese notary has no competence to celebrate marriages, his material competence being limited by Law No. 337 of 8 June 1994 regulating the notarial profession to the acts and contracts provided for in the Code of Obligations and Contracts, which obviously does not include marriage. Finally, it should be noted that marriage is not a simple contract, it is also an institution whose effects on filiation, parental authority over minor children and their custody in the event of dissolution of the marriage, the matrimonial regime and succession are regulated by the State in all legal systems of the world. It is therefore necessary for the legislator to determine the law applicable to marriage, which cannot depend on the free choice by the parties of the law that suits them.
It can be concluded from the above that marriage performed before a notary in Lebanon is a “legal adventurism” and that only a legislative intervention regulating optional civil marriage could solve the problem by providing women with a matrimonial status that is in line with human rights and the requirements of modern life, as well as the required legal predictability and security.
b.2-Women’s obligations and rights during marriage :
*Common life: The inequality suffered by women is evident in the Muslim Chareh, which provides that the husband should live in harmony with his wife and show her kindness, while the wife is subject to the duties of obedience and fidelity.
*Money reports: The obligation to support the wife is, in principle, the responsibility of the husband in both Christian and Muslim communities. Only if the husband is poor and the wife well off will she have to pay for the upkeep of the household herself in the Christian communities. However, a very relevant and protective rule for women, originating from Muslim law, is that of the total separation of property between spouses in Lebanese law. Indeed, the notion of a matrimonial regime and a marriage contract drawn up by a notary before the union does not exist in Lebanon, which implies a complete financial autonomy of the wife in relation to her husband. As a result, the property acquired by her, from her own funds, during the marriage, belongs to her alone, only the property acquired in common being in joint ownership.
b.3-Effects of the dissolution of marriage on the rights of the woman :
*Repudiation: The persistence in the Muslim Chareh of the power of unilateral repudiation granted to the husband by uttering the customary words, without the need for justification or recourse to any judicial procedure, confines the wife in a situation of subjection. It is, however, tempered by the right of
eesmat” or “early repudiation
or “early repudiation” which can be requested by the wife before the marriage in case the husband decides to take another wife.
*Cancellation of marriage: In Catholic marriage, divorce is excluded, the only solution being the annulment of the marriage (i.e., it is considered that it never took place because of an original defect preventing its formation). Most often, a widely interpreted reason will be that the spouses did not, at the time of the celebration of the union, have the maturity to understand the effects of the marriage. Although the principle of divorce is not rejected in Greek Orthodox marriage, it is subject to certain conditions which have been strengthened in recent years. As a result, women – like men – are forced either to endure a marital life that no longer satisfies them, or to resort to various frauds to get out of the bonds of marriage, and this in return for the payment of secret money, and only if they have sufficient financial autonomy. Indeed, the fact that judicial decisions relating to personal status are not published, that those who know about them are lawyers specialising in this or that community (because of relationships of belonging, proximity or other less obvious reasons), and that influence peddling and corruption are, it seems, frequent, make the procedures obscure and the predictability of decisions uncertain. Of course, women are the first to suffer the disastrous effects of this state of affairs, not to mention the vagaries of custody of minor children (sometimes granted to the father) and the payment of maintenance.
In this regard, it should be noted that women separated from their husbands are currently suffering as a result of the collapse of the national currency and the position of the courts, which in all matters and for all financial obligations, has been to limit itself to the official rate of 1,500LL per $1 without updating, which prevents women from meeting their most basic needs, despite isolated courageous decisions by civil judges imposing an upward reassessment of maintenance payments.
2. Public life
2.1. Nationality: The impossibility for a Lebanese woman married to a foreigner to transmit her nationality to her children (or even to her foreign husband)
This discrimination, provided for by Order 15S of 19 January 1925, has been the subject of campaigns that have been as fierce as they have been ineffective to date, with the pretexts put forward being more socio-political than legal. Indeed, the need to prevent Lebanese women married to Palestinian – and currently Syrian – refugees from transferring their nationality to their husbands and children is often mentioned, without the Ministry of the Interior having official figures on the number of such marriages, which are not all registered. According to a study by sociologist Fahmyyé Charafeddine, between 1995 and 2018, there were 18,000 marriages of Lebanese women with foreigners, 91.6% of which were with Palestinians. One can legitimately ask why Lebanese men married to foreign women can pass on their nationality to their wives and children without running major political risks for the country! In any case, the rigor of this measure is tempered by the liberality of some judges in this matter, especially in the case of children whose foreign father is deceased and who have always lived in Lebanon, without knowing the country of origin of their father (Swaydan decision of Judge John Kazzi of June 16, 2009). It is tempered, on the other hand, by the decision taken by the General Security to grant these children so-called “courtesy” residence permits, free of charge and renewable, for a period of three years, instead of the one-year period normally applicable to residence permits in Lebanon, and by proposals aimed at granting them non-political civil and social rights, such as the right to education, medical care and social benefits.
2.2. Education and work
At the primary education level, there is a gender balance, with 90% of children of both sexes benefiting from it. However, international reports point out that the more advanced the studies, the more gender disparities there are. And while the number of girls enrolled in university exceeds that of boys, this parity is not reflected in the labour market and, a fortiori, in management positions. For example, according to a report published in 2020 by UN Women, only 29.6% of Lebanese women participate in the economy, against 70.4% of men, with Lebanon occupying the 139e place out of 156 in the 2021 Global Gender Report. Moreover, the Labour Code does not provide for maternity benefits or allowances for working women. However, some progress has been made in this area: in 2002, the CNSS recognized the right of women with dependent children to receive family allowances. And in 2014, maternity leave previously limited to 40 days was increased to 10 weeks, knowing that paternity leave does not exist in our country.
In spite of this, one cannot but recognize the remarkable breakthroughs of women in teaching, medicine and the health professions in general, with egalitarian practices in middle and upper socio-cultural urban environments, while rural or lower socio-economic environments suffer from more inequalities.
2.3. Political participation
In terms of political participation, and despite the increase in the number of women (30%) in Hassane Diab’s government, the country was ranked by the latest UNDP report at the 111e The country ranks second out of 153 countries on the Women’s Political Empowerment Index, with only one woman out of 24 ministers in the current Government of Mr. Najib Mikati. As for the current Parliament, there are only 6 women out of 128 members. This state of affairs has led women’s associations to call for a female quota, at least temporarily. Thus, an Amal Party MP and former minister, Inaya Ezzeddine presented a proposal to establish a female quota of 26 seats in the parliament, and this through the amendment of Article 2 of the 2017 electoral law. This proposal was rejected by the parliamentary committees on the grounds that it was controversial and that they did not have time to examine it! In reality, political parties and the traditional leadership are opposed to the women’s quota because it threatens their political patronage on the one hand, and on the other, it overlaps in a rather complex way with the already existing confessional and regional quotas. More generally, the low representation of women at the political level is due to various factors: the system of confessional distribution of parliamentary seats, which necessarily limits the emergence of women; the cost, not only official but also hidden, of election campaigns; and the patriarchy that characterizes political parties, in which the succession to the party president is mostly passed on to the eldest son.
Conclusion
At present, although all Lebanese citizens are suffering from the financial and economic crisis, women are among the hardest hit: The most basic health rights are violated, with difficulties in securing contraception and carrying out annual check-ups, layoffs and unemployment, especially in the banking sector where they are professionally very active, tensions within the family often leading to violence against them or, at best, to a paternalistic control over their decisions, under the pretext of paternalistic protection, and this at a time when an accumulation of crises and pressing survival concerns have pushed the struggle for their rights into the background, etc.
Will the political and citizen revolution of October 2019, despite the internal and external setbacks it may have suffered, also be an opportunity for women to remove obstacles, change mentalities and traditional burdens and put an end to the legal and social discrimination that hinders their freedom, their development and their place in society and the Nation?
