The Tunisian cabinet’s approval of a draft law that provides equal inheritance rights to women has sparked controversy at Egypt’s esteemed Al-Azhar university. The debate has escalated to the extent that Tunisia is now being described as “a non-Islamic country”, whose “system is not Muslim.”
It seems that the draft law, which has not yet been put up for debate in Tunisian parliament, has kept Al-Azhar busier than even the Al-Zaytuna Mosque in Tunis. Senior Al-Azhar officials have not welcomed the Tunisian move as most of the institutions’ officials have voiced their extreme disapproval of it, according to Raseef22.
The inheritance draft law in Tunisia bases its proposal on the premise that “man-made laws set by legislators are civil laws that can be developed in their nature just like other man-made laws that are part of the internal legislative system.” The Tunisian parliament is expected to discuss the draft in the next phase.
A dissenting voice
Although the decision concerns Tunisia, several Muslim countries are observing what’s happening there, as the matter of inheritance in Islam has remained unchanged for 1,400 years, ever since the emergence of Islam.
“The male gets a share equal to that of two females,” the religion of Islam stipulates. However, Tunisia has made a bold move by trying to amend this based on its civil constitution that recognizes equality raises. This has raised apprehensions and suspicions in several Islamic capitals against such a move, including Cairo.
Saad al-Deen al-Hilali, a professor of comparative jurisprudence at Al-Azhar University, has issued a fatwa (religious edict) that permits what Tunisia is doing and has stated that Tunisia’s decision to provide equal inheritance to men and women “is jurisprudentially correct and it does not contradict with God’s words”.
Speaking to ‘El Hekaya’ (The Story) television program that airs on MBC Masr, Hilali said that “inheritance is a matter of rights and not duties like fasting and praying,” adding that in terms of rights, “people have the right to deal with them.”
In a revolutionary tone which Egypt’s liberals liked, but its Islamists disapproved of, Hilali said the jurist’s fatwas change with the development of his knowledge and intellect with time. “We will reach where Tunisia has reached 20 years from now,” he stated.
After Hilali made these remarks, Al-Azhar issued a disclaimer that Hilali’s stance is not that of Al Azhar. Local media outlets quoted Dr. Ahmad Zaria, Al-Azhar University's spokesperson, as saying: “Dr. Hilali does not represent Al-Azhar University and his opinions are his own. What he said contradicts the Quran’s text and Al-Azhar’s approach.”
“Al-Azhar University council is discussing the stance regarding the statements of Dr. Hilali, which does not represent us at all,” Zaria added.
The electronic fatwa center at Al-Azhar also issued a statement criticizing Hilali’s remarks as contradictory and noting that it’s a shame that Hilali made such “strange” statements which to those who are not experts imply that they are based on law when in fact they are not.
The statement considered Al-Hilali’s view on the Fatwa that it differed with time, place and conditions as incorrect. It stressed that “The main textual provisions, whether of prohibition or of order, do not change with time, place or people; like prayer, fasting, zakat, jihad, honesty, etc.”
The statement considered that the inheritance provisions do not come under the purview of fatwa, but it is part of the Sharia provisions that “cannot change or differ due to circumstances, people, time and place”. In short, it does not come under the purview of ijtihad.
The statement considered that ijtihad on inheritance issue is untenable and misleading and said: “what was presented by Dr. Saad El din Al Hilali, cannot be considered as knowledge or ijtihad from which people would derive thawab (reward), rather it his personal point of view or a lie about religion and knowledge.”
‘Concept of equality’ is misleading
Al-Azhar also issues a response for the Tunisian authorities’ decision to allow gender equality in inheritance. This time the response came from The Senior Scholars Council at Al Azhar, which harshly responded by saying: “We have followed with great interest the matter raised recently about some of the absolute provisions of the Shariah that some have tried to belittle and disregard. Others have sought to undermine its value, by taking them out of their provisions into the realm of suspicion.”
The Senior Scholars’ Council at Al Azhar described those who have worked on the inheritance issue as “deceptive”. They mentioned in the statement: “The deceiving ones have crossed the line over the issue, without knowledge about the necessary absolute information, about the religion, the Holy Quran’s rule of inheritance and about what was mentioned regarding woman’s share in it. This has been mentioned in two verses of the Quran in Surat An-Nisa. This time, the unjust and defaming campaign had exceeded all limits of rationality and justice.”
The statement regarded equality in inheritance as disrespect for the Sharia, stating they are “based on imagination that contradict with Quran’s absolute provisions, which such people believe is a victory achieved for women’s rights out of ignorance of the wise details of women’s inheritance in Islam, wherein in some cases, women take more than men’s share. Sometimes, woman alone inherit while the man does not. They have started demanding laws that oblige a complete equality between women and men in inheritance, in a severe violation of the absolute provisions of the Quran.”
Al-Azhar Senior Scholars council considered that some of the Sharia texts are open for ijtihad while others are not. It stated that the inheritance verses in Quran are not open for Ijtihad.”
Tunisia is not an "Islamic state"
Out of anger towards this Tunisian law, the former Mufti of Egypt Dr. Ali Gomaa, stated that Tunisia was not an Islamic country. Speaking on a TV program, he said: “The Tunisian constitution does not stipulate that it is an Islamic state in the first place. The regime is not Islamic … The regime does not recognize Islam as the official religion.”
However, Gomaa’s words contradict the first article of the Tunisian constitution, which states that “Tunisia is a free, independent and sovereign State. Islam is its religion, Arabic is its language and the Republic is its regime. This chapter may not be amended.”
The current Egyptian Mufti, Shawky Allam, did not have any view other than that of the former Mufti, when he asserted in a statement published on his official page on Facebook that equality in inheritance “contradicts with the Islamic Sharia and the scholarly consensus throughout ages.”
“There can be no Ijtihad with the absolute verses, under the pretext of the cultural change in the societies and states now,” he added.
Several Tunisian decisions about equality have stirred media debate and Al-Azhar in Egypt. Prominent among them is allowing Tunisian women to marry non-Muslims. Since its independence in 1956, Tunisia has banned polygamy and is now getting ready to expand the base of rights.