By Ihsane Elidrissi Elhassani
By Ihsane Elidrissi Elhassani
Rabat – “The adoul (notary) examination results for the year 2018 were unveiled July 21; 299 women candidates passed, making up 37 percent of the 800 successful candidates.”
Behind this seemingly anodyne announcement hides one of the most controversial and bold decisions of King Mohammed VI of Morocco, a decision made on January 22, 2018, in his religious capacity as the commander of the faithful to allow women to become adoul. The profession until then had been reserved to men.
The Supreme Scientific Council, the highest religious authority in Morocco, concluded that women could practice the profession of adoul, based on the legal provisions relating to testimony and the rules of the Maliki School of Islamic thought, the religious doctrine adopted in Morocco.
As work began on the reform of Law 16.03 governing the adoul profession, controversy arose. In its text, there is no explicit provision limiting the profession to men, but some consider allowing women to be adoul would be inconsistent with Sharia. Others believe that it is a step forward for women in society.
The decision and the journey to reach it opened an age-old debate surrounding the ability of women to be competent witnesses and plunged the country into a jurisprudential crisis, bringing to the forefront glaring contradictions and discrepancies.
Debates on the subject ranged from the sublime to the ridiculous as the intellectual, psychological, and physical abilities of women were put on trial. A quick search on the internet gives a taste of some of the reasons invoked to justify the perceived inherent inability of women to be competent witnesses: “forgetfulness.”
One celebrity scholar, an “improvised” neuroscientist, explained that men have a gland in their brain which women apparently lack that allows them to be able to speak, listen, and remember information at the same time. The scholar had to announce in the middle of his explanation that he had forgot the name of the gland.
Adoul, the plural of adl, is a word engraved into the Moroccan psyche as the two religious men who conclude marriages. They work in tandem because two are needed for a testimony to be valid in certain instances. The word’s literal meaning is “just,” a shortening of the full phrase, “shahid adl,” or a “just witness.”
“Shahid adl,” or adoul as it is commonly referred to in Morocco, is not a profession or function that finds its roots in religion. In the Qur’an, it is used as a description of the qualities that a judge or a witness should have.
Even if the profession of adoul in Morocco borrowed its name from the Qur’an, it is in essence a legal, not religious, profession. Somehow the solemn aspect of the adoul’s traditional gear, age, and often white beards, combined with the ceremonial aspect of the role, caused confusion.
The religious marriage in Islam does not require the blessing of a religious figure. The conditions that make a marriage conform to Sharia or not are consent, witnesses, and a dowry. It is not very different from what is recognized in the West as a civil marriage. It is simply a contractual agreement.
If the bond between husband and wife meets the legal requirements, the two can exchange property and share marital assets. The religious validity lies in meeting the contract’s requirements. There is no other religious protocol, and certainly no blessing from any religious figure.
Adoul can perform several tasks, such as drawing contracts, including contracts of marriage and divorce settlements; making certification; approving wills; and adjudicating inheritance.
So why was the profession of adoul off limits for women in Morocco, especially since women can take office as judges, public notaries, lawyers, and expert witnesses? Even more absurd, the adoul job classification is “court aide or assistant,” and by law, it is lower in hierarchy than a judge.
Even if the adoul is a liberal profession, the adoul is auxiliary to the court and could report to a judge which could be a woman. Further, a woman lawyer can opine on a marriage contract drawn by adoul; a woman judge can issue a judgment on the validity of a marriage contract, drawn and witnessed by adoul; and a woman expert witness can be called to testify on facts surrounding a contract drawn the male adoul.
On the surface, the function of adoul is based purely on legal abilities, and Moroccan women were allowed to practice all sorts of legal professions decades ago. It is surprising to learn that what stood as a hurdle on the way of women and the adoul profession is simply the testimony component.
Testimony (shahada) is an attestation with regard to a right of a party against a third. So why can’t women testify? Why can’t they be trusted with firsthand knowledge of something? Why is their perception of things deemed inherently flawed? Can’t they remember what they perceive and retell it?
The only verse of the Qur’an that evokes the gender of a witness and has been interpreted by some as equating the testimony of two women to that of one man, is the verse about debt. In Surah 2, verse 282, it says “Call upon two of your men to act as witnesses; and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses.”
The verse goes on to explain the reason for seeking testimony from two women in place of the testimony of one man, by saying “…so that if one of them should make a mistake (errs), the other could remind her.”
There has never been a unanimous opinion as to the religious stance on the value of women’s testimony.
Some scholars categorized the verse as a recommendation or merely instructional and without legal import. Others opined that the recording of debts, witnessing, and all other matters dealt with in the verse may be categorized as obligatory. Hence, in financial documents, two men or one man and two women are needed.
Some Muslim countries adopt this rule across the board and equate women’s testimony to half that of men’s as a general matter. Opinions also diverge on whether women’s testimony is not accepted in all matters including marriage, or whether the prohibition is confined to matters of punishments for serious crimes.
There are some views claiming that all Muslims can be witnesses, with a few exceptions. The divine guidance makes no claim that a woman’s testimony is worth half; in any case, it is only a recommendation. It would be for the court judge to decide what kind and whose evidence will be enough on a case by case basis.
Regarding the prophetic narration that is used to prove the half-testimony status of women, there is some doubt surrounding its reliability, and above all, the narration cannot be used in all general cases because it relates only to financial matters.
Some scholars have engrossed themselves in studies emphasizing the biological and psychological differences between men and women, thereby attempting to derive evidence from divine revelation to support their opinion.
It seems that women’s natural tendency to be forgetful, to fall into error, to be cajoled or to be forced to give false testimony are connected to women’s inherent inequality to men, and the predominance of cold and wetness in their physical constitution.
Psychology was not spared as a justification either: mental fragility, temperament, and what women lack prevents them from submitting their testimony on such subjects as land boundaries, marriages, or divorces.
Some scholars chose the flat rejection route, believing the rule does not need an additional sanction over and above the law of God as revealed in the Qur’an. The divine command sufficed to give the rejection of women’s testimony momentum and a sacred orthodoxy.
The debate surrounding the numerical value of witnesses’ testimony, including the probative value of women’s, is not unique to Morocco or to the Muslim world. In civil law, the process of proof rested fundamentally on a numerical system. A single witness to a fact was not sufficient; specific numbers of witnesses were in certain cases required. The weight to be given to each witness’s testimony was measured and represented in numerical value, even by counting halves and quarters of a witness.
Common law used the numerical rule in perjury. In Roman law, the general rule was that one witness alone was insufficient. The ecclesiastical law developed the numerical principle freely and elaborated many specific rules as to the number of witnesses necessary in various situations.
The rules surrounding testimony were a natural reflection of the fixed popular probative notions of each period of time, notions that saw the value of a witness increased, decreased, or neutralized depending on the social ranking, slavery, freedom status, or gender. Women’s testimony, too, obeyed the popular belief which excluded women or attributed a lesser numerical value to their testimony.
The legal life experienced a multitude of stages including the divine, the formal, and the intellectual stages, but the transition from one stage to the other did not occur abruptly and immediately.
Now the principle of evidence is largely acknowledged to be unsound and deleterious, nonetheless a form of history worth examining. The flaws that were attributed to women proved to be valid for women and men. The world realized long ago that the palest ink is better than the best memory and has moved from the oral tradition to the written one, minimizing the need for witnesses.
What is on trial in Morocco is not the testimony per se, but women themselves. This is the common denominator for all the topics involving women’s rights in Morocco. An overwhelming sense of deja vu reminds the public of when the family code was reformed, the first woman MP, the first woman minister, and when women were allowed to serve in the police forces.
They were trials with prejudice and one goal: establish women’s inferiority. So many theories were called upon, the tutorship of men over women, women’s financial dependence on men, and the right of women to half of the inheritance that men are entitled to.
The reasoning seems to be done in total abstraction from the real context; it is completely theoretical and does not take into consideration the new factors.
Forgetfulness was debated as if we were still stuck in the oral tradition, and the agreement of the parties cannot be recorded in writing. Then there was the erroneous perception of the adoul as a religious figure giving religious weight to the marriage.
Stripped from the dogma, adoul is a legal profession established by law, classified as auxiliary to the court. To practice as adoul, you need to meet the eligibility criteria, including having the appropriate degree, succeeding in a competition, and completing training.
The functions of adoul are set by law. On drawing contracts of marriage, the adoul do not need to have a supernatural memory because they have written contract templates.
Recording the spouses’ identities when they present their ID cards, filling the dowry amount and the date of the contract and authenticating the signatures are hopefully things that a graduate male or female with lengthy training can do.
Ihsane Elidrissi Elhassani is the principal solicitor and founder of Sterling Stamp Law Firm in the United Kingdom.