The IAWJ and the NAWJ Held a Joint Screening of the Documentary “The Judge”

I would like to thank the IAWJ for inviting me to comment and share the experience lived by the Honorable Judge Kouloud Elfakih.

The subject chosen is specific. It is above all an indication of the attention that the IAWJ pays to women’s rights, gender equality and women’s access to the highest positions of responsibility.

What is also different is that we focus on a reality in the Arab world, a revolution in the legal world.

This documentary appeals to all women judges in the Arab world.

I am going to cite four points that I find important in this documentary, knowing that it is very rich in subject matter to be debated between women judges and women of the law in general:

  • Can women exercise the profession of judge or not?

This reflection has been mentioned several times in the history of the Muslim world and, in several Arab countries, the majority of scholars believe that a woman is prohibited from being a judge. Indeed, being a man is one of the conditions required to access the judiciary. The reason is that the judiciary is an authority. Now, the Prophet said: “Never will a people succeed who entrusts the management of their affairs to a woman” (Bukhari). Moreover, Allah, exalted be He, says (meaning of the verse): “Men have authority over women […]” (Koran 4/34)

The Hanefites believe however that the judgment of the woman is valid in all that relates to punishments. But whoever gives her this authority commits a sin. Ibn Djarîr al-Tabarî authorized the woman to be judge based on the fact that she is allowed to issue fatwas. But al-Mâwardî responded by affirming that: “It is not appropriate to adopt an opinion that scholars have unanimously refused knowing that Allah, exalted be He, says (meaning of the verse): “Men have authority over women, because of the favors that Allah bestows on them […]” (Quran 4/34)”.

The Koran does not contain restrictions and roles and responsibilities are equal between men and women.

Despite the clarity of the Koran, this idea has remained anchored in the minds of the political powers and of the women themselves who did not advance to these positions.

A few women in the history of the Arab world have been given senior positions of responsibility, but the number remains very small.

  • This documentary also evokes the weight of traditions and customs which can often be heavier to bear than laws or political goodwill.

Indeed, in Arab countries, the courts which apply Sharia law are the responsibility of men.

And Judge Kouloud has courageously and with great will dared to ask for appointment to these courts considering that times have changed and that it is her most sacred right to be appointed for her skills and nothing else.

It can be deduced that in several Arab countries women depend mainly on customs and traditions and they must continue to fight for the achievement of equal opportunities for all because society as a whole must benefit from a climate of equality regardless of gender.

  • Judge Kouloud is of course an exceptional model for all the others.

She had the courage to ask for her rights, not to wait for a positions to be given to her according to the political trends of the moment. She went to the forefront to express her opinions freely and say what was right for her.

She faced the hardships and the obstacles they put to discourage her and she showed that she was able to do justice and deal with the various problems that came her way with great will and professionalism.

It is a model through which women judges will conceive of themselves, believe in their professional capacities and free themselves from stereotypes and will believe that these positions are for them too.

We certainly need these positive role models to encourage each other so that we can achieve ultimate change.

This issue is very important, it is to give women their constitutional and human rights, to strengthen the rule of law and prohibit discrimination in general.

  • This documentary evokes another topic of discussion which is very relevant for all judges who exercise this profession: it is the independence of judges and the judiciary.

In fact, a judge can be very competent, impartial, neutral, but if there is no political will to let him do his/her job in good conditions, this hinders the independence of the judiciary. It is not enough for the judge to be independent him/herself. We need institutions that promote and allow this independence.

Judge Kouloud suffered from people who were against her appointment and from the lack of institutions to protect her. At a certain point, cases were taken away from her to reduce her task to administrative work.

This makes her dedication and her mission of change very difficult and delicate and it is through personal and professional sacrifices that she clears for others …

FINALLY,

I want to quote the model of my country Tunisia where women’s access to the position of judge was not possible before independence and it was not until 1966 that a first woman was appointed by a personal initiative of President Bourguiba and, in the presence of retrograde opponents to this initiative, she began work in 1968 as a family and children judge.

In 1967, a law on the organization of the judiciary made it possible for judges to be recruited through a public competition in which no discrimination against women was made.

Today, the number of women judges has evolved to the point that it has exceeded 50 percent and there are no longer any courts that apply Sharia law. It is civil law that applies to all Tunisian territory.

This blog post was prepared by IAWJ Board Member, Judge Saida Chebili. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.


Sharia literary is the way and the method.

The technical definition means the code of living that all Muslims should adhere to.

The Sharia law is derived from the Koran (the Holy Book) and the Sunnah (the texts of the prophet Mohammed, may God bless him and grant him peace). The Sharia is the judiciary that applies in its rulings the requirements of the Sharia that used to address all aspects of life, including stating the rights of individuals and groups, their duties and their obligations.

Historically, the work of the legal judiciary in accordance with the rules of Islamic law has continued for several centuries, during which one court prevailed, the Sharia court, which is a court that examines all civil, criminal and commercial cases and disputes and personal status and others.

However, with the change of times, the explosion of demographic growth, the complexity of societal life, the complexity of issues, the involvement of Islamic countries in human rights projects and programs, and the ratification of several international agreements related to the rights of women and children and equality, all these and other factors contributed to the development and modernization of the judicial system, and reforms were introduced in several areas and the Sharia judiciary disappeared and nothing remains except for the personal status area in which the provisions of Islamic law are applied. Consequently, specialized courts were established, including criminal, civil, commercial and administrative courts, public funds courts, and family courts. It is noticeable that some countries, such as Jordan, Palestine and Sudan, have retained the Sharia court, which deals with personal status, including marriage, divorce, alimony, custody, inheritance, and everything related to the individual from his birth until after his death.

Despite the disappearance of the name of the Sharia court in most Islamic countries and its replacement with the Family Court, the laws applied therein are deduced from the Islamic Sharia. Nevertheless, most of the judges in it are women, unlike Palestine because the name added to it a religious character. Moreover, Palestinian law explicitly states that the Sharia court is an Islamic religious court, which makes it difficult for women to access it as a judge because religious jurists originally object to the practice of women in the judiciary, and therefore the appointment of a woman as a judge in the Sharia court represents a real change in the development of the Sharia justice system and also the availability The opportunity for a woman as a judge to prove herself and enter the arena of leadership.

Indeed the requirements of Sharia are sublime. The stereotypical image of women is from the fabric of male jurists, as they interpreted the Koran and the Sunnah with a masculine tendency against the appointment of women.

As for the civil judiciary, it applies the requirements of the civil law that derives its sources from legislation and some principles of Islamic law in some private areas. Here the question arises about the extent to which the legal judiciary respects the principles of the judiciary, especially the principle of independence?

The origin of the Sharia court is the independence of the judge, and perhaps the most important pillar in Sharia law for human rights is the independence of the judiciary. The Sharia judge does not refer in his rulings except to Sharia and his conscience and is not subject to any pressure or any external interference. In fact, people trust more in the legal judiciary because its sources are the Koran and Sunnah.

To watch the full documentary, please click here.

This blog post was prepared by IAWJ Board Member, Judge Mina Sougrati. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.