By Horia Al-Shraim
The people of Qatar have undergone major shifts in the past few decades. A nation was born, institutions were built, and laws were constituted. The settlers of Qatar, whether Bedouin or city-people, had to give up some of their entitlements in order for the nation to be formed. The people went from being semi-autonomous tribes people, to people governed and controlled by one-man’s nation state. In this paper, I question, the extent to which ‘urf is used in the laws and by the people of Qatar, and how they came to accept the shift of authority from the authority of tribes over its people, to authority of one body, embodied in the government of the state. I also question the way in which legal codification affects the private lives of the people of Qatar, in regards to the concept of citizenship by looking at a recent case study of the murder of Mohammad Abdullatif. Overall, the paper looks at the question of gender, women, and institutionalized patriarchy, and how the state of Qatar takes the role of the patriarchs in order to control and regulate the lives of people within the family, especially: women.
Methods and Methodologies
The research is analytical. Through the use of existing laws, I aim to question the ways in which members of families have a say in the laws that govern them with focus on family laws, and the constitution. The research is a feminist research, since it deals with the concept of family, while a special focus will be given to women and their issues within these laws. The paper will question where people and women in particular are positioned within these laws. Access to family records prior to codification is not possible, since the family of the late jurist who conducted most of the court hearings, told me personally that they had the case records sent to the United Arab Emirates, for reasons unknown to me. I will look at Qatari family cases through the official governmental juridical site, which is “al-meezan”. But most importantly, I rely on making a closer analysis on articles of the family laws and penal codes, to understand whether if customs of the people of Qatar is included in the laws or not, and what kind of customs are included, and whom do they benefit. The theory of intersectionality will be used, especially during the case study of the murder of Mohammad Abddullatif, since the case deals with the issue of race, gender and nationalism, all in which interest and influence the final decision of the judge on the murderer of Abdullatif. Intersectionality recognizes that one aspect of an identity cannot be separated from the remaining aspects; since they are connected, they influence the way people identify themselves, but also the way they are governed (Maynard, 2001, p. 154). For example, African Americans do not have the same rights as white Americans, therefore male African Americans are subordinated, yet female African Americans are discriminated upon more, due to the intersection of their race and gender. Therefore, to understand a complex issue in modern times of identity politics and citizenship rights, one has to apply the theory of intersectionality in order to reach an overall understanding of the ways race, gender, age, ability and other aspects of identity influence everyday situations.
Review of Literature
The book, Gender and Citizenship in the Middle East, edited by Suad Joseph (2000) is one of the remarkable books on the issue of women, and citizenship. The book has various articles by scholars specialized in the topic of gender in the Middle East, such as “Becoming a citizen: Lineage versus individual in Tunisia and Morocco” by Mounira M. Charrad and “Gender and citizenship in Jordan” by Abla Amawi that deals with the same issues in this paper, such as gender, lineage, hegemony, patrilineality, and patriarchy. In her article, “gendering citizenship in the Middle East”, Joseph (2000) divides her article into main themes such as: state, family, religion and nation. Through doing that, Joseph aims to see how these factors intersect and influence the way in which gendered citizen is shaped in the Middle East. On the other hand, in “Becoming a citizen: Lineage versus individual in Tunisia and Morocco” Mounira M. Charrad (2000, p. 71) argues that “lineage and kin-based social formations” remained a crucial part of society during codification, therefore the patriarchy that existed in some parts of the Arab world was translated into law. What is problematic about this argument is that it ignores the fact that the laws these countries have adapted are actually Ottoman and European in origin (Sonbol, 2003, p. 19-23) and instead she focuses on proving a historically culturalist argument, which even if correct, is always lacking in terms of discussing an overall view on the issue of codification, culture, politics and historical facts that are tied to the Middle East.
In Gulf women, which is one of the few sources that deals with Qatari women and Gulf women statuses, Amira Sonbol shows how, pre-codification and pre-modern era of the Gulf, witnessed the view of mothers as well as fathers as sources of tribal pride, while the role of the mother as giver of this sense of pride was lost with the introduction of the concept of genealogy and codification (Sonbol, 2017, p. 315). Sonbol (2017, p. 315) also argues that “gendered division of labor, based on biological function, developed, which became established as part of social norms backed by state actions, and legal court systems.” Therefore, based on her collection of oral narratives, she argues that gendered division of labor was minimal in Qatar prior to nation state building, while other factors such as state formation, and capitalism, made gendered division of labor apparent. In the same book, and in an article titled “Women and the economy: pre-oil Gulf states,” Hoda El-Saadi (2017, p. 147-166), many of the labor that men did pre-oil era, women did too. In fact, women did more labor than men did back then. While men’s gendered labor was limited to pearl diving, women had more gendered and non-gendered labor than men, such as achafa (beautician), khayyata (tailor) and muftya (religious teacher) (El-Saadi, 2017, p. 155, 157, 160). But, what happened with codification, is that it has limited the role of women, and therefore gendered division of labor became enforced by customary laws that are translated into the Human Resources policies of many organizations in the country. Women engineers and architects are given office jobs, because there are certain companies that prevent women from going to construction sites and factories. Unlike Jordan though, the state of Qatar does not have one law that prevents women from working in such fields, yet it is more complicated than that, because customs (that are backed by the state) and individuals are the ones controlling these women’s mobility.
History of Personal Status Codification
Since its independence from the British in 1971, Qatar has undergone a long process of codification which ended with the permeant constitution being codified in 2004, penal codes codified in 2004, and the family laws being codified in 2006. The family laws of Qatar promulgated in 2006 were put together by a committee of religious scholars and lawyers. Both have worked together to put the only existing laws in the country that have their basis on Sharia. That is why, family laws and the constitution of Qatar conflict in many areas. Article 35 of the Constitution calls for equality of all citizens before the law; it states, “there shall be no discrimination whatsoever on grounds of sex, race, language, or religion.” (Constitution of Qatar, 2004, p. 6). At the same time, conversely, family laws clearly demonstrate inequalities based on age and sex. The family laws deal with issues concerning marriage, divorce, custody, inheritance, among other things, which has direct influence on the way women are treated by the state and their families.
The process of modern codification of family matters in the Middle East started in 1917, with the Ottoman Law of Family Rights. The Ottoman Law of Family Rights followed the Hanafi school of thought (Welchman, 2017, p. 368). Though the law was abandoned by the newly founded Turkish state, it did not stop Egyptian and Syrian lawyers from taking it as basis for codifying family laws across the whole region. That is why, even though the family laws of Qatar follow the Hanbali madhab and the Emirati and Bahraini laws follow the Maliki, while the Omani laws follow the ‘Ibadi madhab, huge similarities can be seen through these four codes (Welchman, 2017, p. 372-373). While states claim that the laws codified have their basis on certain Islamic schools of thought, there are also various historical, cultural and political variables that have influenced and found their way into the laws. Codification is a process, it is influenced by internal culture and religion, and by regional and international factors. Therefore, pinning the family laws of Qatar to one factor, which is religious does not help achieve an overall understanding of the issues that these laws discuss.
Qataris, and the Right to Private and Family Life
In early July 2018, a Sudanese bodybuilder by the name of Mohammed Abdullatif was killed by his Qatari brother in-law in the state of Qatar. The family of the wife stated that it is because the wife has married a man that is not kufu’. Kafa’a (competence) has many interpretations in Islamic legal traditions, but it is set to prevent a woman from marrying beneath herself (The Quran Al-Nisa’ 4:13). The wife and the father of the wife have the authority to sue for divorce, if the husband appears to not be Kufu’. According to the jurisprudence of Ibn Hanbal, which the state of Qatar adopts as the official madhab of its family laws, a man who is kufu’ to marry a Muslim women, is: a Muslim, Arab, does not drink, and is not a slave (if she is not) (Spectorsky, 1993, p. 14-16). Abdullatif was a Muslim Arab, yet he was not Qatari. In the modern state of Qatar, and most importantly, in majority modern nation states, what is more important than lineage is the nationality that people hold. Today, Qataris view nationality as a basis for kafa’a, when nationality is newly constructed and doesn’t exist in the jurisprudence of Muslim scholars. What is prevalent about this case is the fact that it deals with nationality as a kafa’a rule. Nationality and citizenship are what determine the value of humans today and what determine if they are kufu’ or not. Citizenship determines if people are placed up the hierarchal system of humanhood or at the very bottom, and if their lives are worth saving or not. One can see the effect of nationalism as kafa’a clearly in the ‘urf laws and citizenship laws of the country, where men can easily marry non-Qataris, it is hard for Qatari women to do so, and if she does marry a non-Qatari, her children will not be able to be granted the citizenship of their mother.
Since the case of the murder of Mohammed Abdullatif has gained a lot of global attention, the state of Qatar had to act fast when it came to punishing the murderer. The murderer got sentenced to years in prison for killing the man, when article 300 of the Qatari penal code specified that “whoever willfully kills another person is punishable by death … if such murder occurs as a result of the use of a poisonous or explosive material.” (Penal Codes of Qatar, 2004, p. 60) And for the case of Abdullatif, he was stabbed to death. Therefore, the penalty as per article 300 presents complications. The murderer might have been sentenced to death, if the person he had killed was a Qatari national, but he was not. Abdullatif held another nationality which gave the country the right to reduce the sentence of the murderer. In this case, we observe the penal code functioning in two ways. On the one hand, the penal code treats non-Qataris and Qataris differently. If the victim was a Qatari, and the murderer was a non-Qatari, the penalty would not have abided by the penal code specifically. Also, since the victim and the murderer were both non-Qataris the penalty of a reduced sentence sheds light on how the victim is perceived by the state. In this case, the murder did not merit an execution. The murderer would have experienced more penalties and repercussions for harming a national, and a citizen of the state. Here, the penal code does not act on its own. However, we see the notion of Qatari national identity, social perceptions on the higher status of Qataris as opposed to other nationals, and also the perception of this act of murder as a crime not only committed on the national, but also committed against the tribes, kin, and nation to which the Qatari belongs to, all play a significant role in shaping the outcome of the sentencing. Therefore, although the penal code presents lenient sentences, the role that cultural identity and threats to it, determine the outcome of the sentencing.
While analyzing Qatari public opinion on the murder, I found out that most of the responses of Qataris consisted of them saying that the case is a familial case and no one should interfere. One Qatari twitter account by a women by the nickname of Bint Al-Ada’am (daughter of Burgundy “in referring to Qatar”) states, “alkhilafat al’asriat daymaan maytim altakatum ealayha kustar lileawayil”/”family disputes should be kept secret to protect families.” The state did try to keep the case secret by not allowing any governmental channel to report the incident and by not disclosing the names of the family members. On the other hand, it did not try its best to disclose the name of the murdered person, simply because he was not one of the citizens that needed familial protection. Therefore, one could see how state reaffirms family positions within the nation and their rights to protect their honor by not saying the name of the wife.
The above mentioned case also shows how Qataris solve familial issue or disputes by their own hands, which then the state translates as state matter by not punishing the offender severely, but instead justifies the actions by attaching whatever the person did, to some existing laws to help him/her get reduced sentences. This means that even if crimes of honor are not codified—like majority Arab nations—they are yet practiced as de facto. Therefore, one can see the division of private and public, family and state, exists in Qatar even with it being a modern state that has to follow laws instead of local customs. The state of Qatar allows room for the private to negotiate its position, or mediate, therefore allowing walis (head/guardian) of the family to fulfill some of their patriarchal roles over women, by practicing their ‘urf or customs by letting it appear as if it is part of the law.
Today, the state is the patriarch, it is no longer the father or the leader of tribe. This is not only the case of Qatar, but the case of every modern nation state. French philosopher Michel Foucault, notes how every personal matter belonging to individuals has become a state matter when he says that individual life today is the “duty of the state” (Foucault, Martin, Gutman & Hutton 1988, p. 147) and for the state. The state dictates the way individuals live by legitimizing and codifying patriarchy. The state did not fully take the role of the traditional patriarchs (fathers, grandfathers, religious or tribal leaders), but it has put them in a position where they act as mediators for the state. Therefore, the patriarchs have not lost their position as power holders over women and children, but their role has been re-defined through the state. One might argue that it is true that laws are discriminatory against women and give walis the space for control over women. Yet, what is even more discriminating is ‘urf system, of families and tribes, that controls women’s mobility.
There are no official state laws that require women younger than twenty five to get their wali’s permission in order to obtain their driver’s license, nor are there laws that force women to not work at factories until their walis sign an agreement report, or laws that persist on getting wali’s permission before undergoing surgeries that are related to women’s reproductive parts, yet these forms of prejudice against women exist because of communal ‘urf that deals with women’s honor. Women’s honor and her body do not belong to her, but to her family and therefore if a woman acts what is considered a shameful act, then the whole family is seen as having done the act (Abu-Lughod, 1999, p. 85). One famous Qatari proverb speaks of such system, that is “alrayyal shayel aiba,” which translates as “man is responsible for his honor.” What this proverb means is that, while men’s shameful acts do not harm the family, women’s shameful acts on the other hand do. Therefore, women’s mobility and their rights to their body is controlled by ‘araf (plural of ‘urf) that affect women every day of their lives. They are sets of uncodified laws that families enforce, society tries to keep in check, and the state regulates.
Just as customs dictate and regulate the way in which women live, so do codified laws. Just as previously mentioned, the family laws set out rules for the way in which a modern Qatari family should be. Through taking a closer look at these laws, one can see how the articles regulate the way women live and deny them their basic human rights. The laws guarantee men rights of inheritance double that of women, they also guarantee the father custody over children. In cases of divorce, mothers stand to lose rights to custody if they remarry a man who is not a close relative, and non-Muslim women lose custody of their children after the children turn seven years old.
on the other hand, there are laws that Sharia does not deal with, yet are regarded as religious in the laws. For example, the right to pass on citizenship is not granted to Qatari women, yet men pass their citizenship to their children, and can easily pass their citizenship to their foreign wives. In her article Becoming a citizen: lineage versus individual in Tunisia and morocco, Mouna Charrad (2000, p. 77) notes how patrilineality is what determines citizenship, which religious scholars and lawyers have based on religion. It is clear that in Qatar, women are treated as half citizens. They are discriminated against due to their sex, which the laws legitimize by giving these discriminations a religious backing.
As Amira Sonbol (2003, p. 17) states in her book, Women of Jordan: Islam, labor, & the law, “as long as women are not empowered within the family, then there is little hope of their playing a role outside of the sphere determined and dominated by male authority.” During an interview with channel France 24/4, a Qatari entrepreneur by the name of Maryam Al-Subaiey spoke to the channel reporter about all the rights and accessibilities available to Qatari women (Al-Subaiey, 2016). While her example of Qatari women’s success might be true, it does not hide the fact that the laws of the country do discriminate against women and so does society. But, if one is born into a privileged Qatari background and has supporting family members who would not make laws be an obstacle, then she can be successful. But as long as these codified and uncodified laws (‘urf) exist, Qatari women will have to work harder than Qatari men in order to be seen as full citizens. Therefore, families can interfere and mediate, since the state has re-assured their position by not making them lose their autonomy, and by placing formal legal authority in the hands of men over women.
How Law Shapes and Constructs the New Family
The family laws of Qatar have shaped and re-defined the modern family. In order to create a nation state and control the nation, the first thing that is needed to be altered is the shape of the Qatari family. When the family is made into smaller units, more control can be exerted on it, since it is defined, boxed, and individuals are made exclusive from one another. The inter-relationship connections that people had is more controlled and redefined through the state (Joseph, 1999, p. 11). By codification, the state says who has the right over whom. And by urbanization and modernization, the state re-arranges the way in which families used to live intentionally and un-intentionally (Al-Shahabi, 2012, p. 5-7), from having grandfathers, grandmothers, sons and their wives and children living in one house to houses consisting of nuclear families. The shape of the Qatari family is defined not only through laws, but through governmental posters, awareness campaigns and hospital advertisements. The nuclear family is the shape of the family that is almost always advertised and discoursed for. The state uses the tactics of smart power, in order to promote for a certain shape of family structure (Ernest, 2008).
When it comes to laws, the shape of the family is promoted through articles that discuss custody, guardianship and inheritance. Article 75 of the law states that, “support for the young Child who has no property shall be upon his father” (Family Laws of Qatar, 2006, p. 34), while article 77 states that “the father shall be responsible to pay for the costs of his Child’s fostering” (Family Laws of Qatar, 2006, p. 34). Since custody deals with physical care and upbringing, while guardianship deals with public duties with regard to financial affairs, education, and travel, article 169 guarantees custody to the mother (Family Laws of Qatar, 2006, p. 63), while guardianship is seen as the fathers duty (Welchman, 2017, p. 369-399). The family laws clearly place the father as the agent through whom the state can exert its powers over all of its citizens. In the state of Qatar, there are patriarchs and there is the ultimate patriarch. The ultimate patriarch is embodied in the state, while the patriarchs are embodied in older male heads of families.
 Information about the murder were taken personally from a family member, who is a judge and have worked closely with this case.
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