JURIST Guest Columnist Ohud Ali. Alzahrani of the University of Pittsburgh discusses the overdue abolition of a long held guardianship system for the women in Saudi Arabia …
Women have recently gained some rights in the Kingdom of Saudi Arabia (referred to hereafter as KSA). Currently, the women of Saudi Arabia do not have full independent freedom from the guardianship requirement. However, in a great step forward, the king Salman ibn Abdul-Aziz has approved several documents that provide conditions under which adult women do not need a man as a guardian [in Arabic] in accordance with a royal decree passed in April 2017. These are provisions not specifically designated under Islamic law. It should be noted that the abolished provisions were not under Islamic law, but rather they were accumulated via previous tribes’ generations. This represents a significant step towards the independence of women.
To fully understand the problems posed by the guardianship system as it currently stands in KSA, it is imperative that the practices of the guardianship system are understood. In the most basic form, the guardianship system employed in KSA relies on the consent of a guardian for decisions in relation to various life events for a woman. In this regard, Wali is the term referring to the man who acts as a guardian for a woman. Accordingly, who may be eligible to hold a guardianship? The succession of common guardianship for an unmarried woman in KSA would start with her father, and default to her brothers, sons, uncles, or grandfathers respectively in the event that a relationship previously in the chain does not exist. Once a woman is married, the guardianship is transferred to a woman’s husband. In the event of a divorce or widow, a once-married woman’s guardianship would refer back to the original chain of succession, with primary guardianship determined by a judge based on her best interests [in Arabic]. In some cases, a woman may have the right to transfer the guardianship to a judge [in Arabic] if her guardian prevents her from marriage by refusing to sign her marriage contract. As the marriage contract is an obligation under Islamic law, without it, the marriage will be null and void. Marriage is an important issue in regards to the debate on guardianship of women because this is a condition that is included under Islamic provisions.
The recent developments made by the king’s resolution have now created a series of conditions [in Arabic] under which a woman does not need a guardian: enrolling in higher education for some universities, receiving treatment at hospitals, procuring jobs, conducting bank processes, renting homes and apartments, receiving issuance of a commercial register, managing financial transactions such as the purchase and sale of real estate, receiving issuance and renewal of national identification documents, interacting with government departments, and raising cases in court.
However, for some other procedures, a woman still has to have her guardian sign off to provide permission for issues such as the following: matters relating issuance and renewal of passports, receipt of travel permits outside the country including for scholarships (study abroad), marriage, and release from prison. Notably, the king has already brought these conditions to the Council of Ministers [in Arabic] for review to seek approval for a waiver. This decision is still in process, as the cabinet considers how this may affect tribal communities.
One important point should be clearly understood: Some women are significantly suffering from tribulations due to their male guardianship, since not all male guardians are truly fit to hold this responsibility. One such common instance of this would be guardians who are addicted to drugs or likewise. Other circumstances can also arise with guardians that further threaten the deprivation of women’s freedom and rights. Such circumstances might be where a brother takes the guardianship of his sister and mother after his father’s death. Under such a case, severe repercussions could follow if the new guardian is inclined to extort the women at issue. This may take the form of a guardian forcing a woman to forfeit her salary or inheritance to him, threatening that if she does not, he will deny her permission for continued employment, travel, or marriage. This clearly acts against human rights and creates an obstacle for women’s full freedom.
Saudi women activists present many exemplary cases to further advocate for women’s freedom. One such example consists of an older woman waiting extensively for her guardian to pick her up or drop her off somewhere. In other cases, (e.g. especially in tribal communities), women may be forbidden from going outside alone, even just to be seen in public without a guardian, due to the belief that women traveling alone invite shame. Also, in cases where a woman’s son becomes her guardian due to divorce or widowing, it is considered dishonorable for a woman to beg for permission from her son. Beyond these cases, there are others, remaining unseen. In response, a new campaign has come up with a hashtag used on social media, #Iammyownguardian, accompanied by narratives of oppressed women sharing stories of the miserable circumstances created by their unfit guardians. Thus, the campaign argues that many men are not worthy of the power required of a guardian.
Given the conservatory society in KSA, the new resolving procedures are of course facing multiple challenges. In light of that, is it possible to have these rights for women in the near future? This answer is complicated due to issues presented by tribal communities, where chieftains of various tribes may oppose these rights, alleging that the guardianship right of a man is traditional and therefore cannot be relinquished. This situation is reminiscent of a situation with the former King Abdullah, where he agreed to change the restrictions for woman and driving, but traditional families and tribes held out [in Arabic]. There is a risk of a similar result happening with the current decision, as it hinges on public approval.
Nonetheless, the rights of women from all walks of life in KSA are affected by tribal arguments in favor of guardianships, alleging that it must be followed as under Islamic rules. This is despite the fact that in actuality Islam gives women the same rights and equal status with men. Indeed, the rights of women are outlined in the Quran and Sunna [in Arabic], including mention of education, the right to choose a husband, the right of managing finances, such that a woman can rent, buy, and sell property, as well as many other rights that allow women to exercise their freedoms.
To conclude, women in KSA are glad for the new resolutions that have been issued by King Salman and to be at least working step-by-step to find a way to support women’s independence from the oppression created by the guardianship requirement. However, the remaining conditions still under review are at odds with women’s rights because they affect many aspects of their lives. Whether women will receive the full rights designated to them in Islam will be determined soon by council decision, with tribal communities opposing based on tradition.
In response to these issues, appropriate measures can and should be taken to combat abuses inherent in the current system. One such proposed action might be in the form of allowing women older than 25 to have a waiver for the guardianship conditions that are not stated under Islamic law. This would include waivers for all of the conditions shared above, except for marriage, which is addressed under Islamic law. This would allow women to be more independent and able to take care of their responsibilities without need for guardianship approval.
Obviously, the KSA has a history of being a conservative country, making efforts to preserve its traditions. During King Saud’s era [in Arabic], when schools for women were first opened, the change was regarded as threatening for families and tribes. Indeed, women’s education is not forbidden in Islam, but at that time, women seeking education experienced shame. Yet, once people coexisted with the change for a while, it came to be accepted. As with this example, the issue of guardianship will take some time to change and be fully accepted.
Ohud Ali. Alzahrani is an S.J.D candidate at the University of Pittsburgh School of Law. Ohud received her LLM from Pace University School of Law and held a position as a lecturer at Taibah University College of Law, Saudi Arabia.
Suggested citation: Ohud Ali. Alzahrani, The Abolition of Male Guardianship (Wali) System in the Kingdom of Saudi Arabia, JURIST – Student Commentary, Jun. 28, 2017, http://jurist.org/student/2017/06/Ohud-Alzahrani-wali-system-abolition.php.
This article was prepared for publication by Henna Bagga, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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