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What will happen to article 400 in the future new version of the Moudawana? For the moment, the fate of this article, which refers to the Maliki rite and which is not unanimous, is still unknown. What we do know is that it is strongly criticized by women’s rights activists and, at the same time, considered indelible by the Ulemas. Not that Moroccan society is not of the Maliki rite, far from it. It is in the overwhelming majority. But simply because this reference is sometimes used to justify questionable judicial decisions.
Consulted on the subject of article 400, the Superior Council of Ulemas indicates that it is unimaginable to dismiss this reference to Malekism in the Family Code. But, in the presentation made by the Ministers of Justice and that of Habous and Islamic Affairs, no allusion was made to the subject of the fate of Article 400. Will it be maintained in its current version? Will it be modified to provide for other references as proposed by the Superior Council of Ulemas? Or will this article be deleted as the feminist community expects?
We will have to wait for a more detailed presentation of the draft Family Code to know the wording adopted. In all cases, it should be noted that the Superior Council of Ulemas remains open to the introduction of other references alongside the reference to the Maliki rite. But this proposal does not satisfy women’s rights activists because it does not resolve the basic problem: the vast range of provisions of the Maliki rite, unknown to the general public and sometimes misused. Among them, Nouzha Skalliformer Minister of the Family (PPS), and current president of the Think Tank “Awal Houriates”.
Contacted by Médias24, Nouzha Skalli recalls what the article in question provides. To use its exact terms, article 400 provides that “pour anything that has not been expressly stated in this Codethere is reason to refer to the prescriptions of the Maliki rite and/or to the conclusions of the jurisprudential effort (Ijtihad)in order to give their concrete expression to the values of justice, equality and harmonious coexistence in common life what Islam advocates”.
For our interlocutor, “the last part of the article is very important because it limits the use of the Maliki rite to the objective of seeking equality and justice. But, in practice, this has not been the case. Article 400 was seen as an open door to broad provisions that are neither known to the general public nor adopted by legislatures.
“As citizens, we have the right to know the laws that govern our daily lives. Here, it is as if we had an open door to a sort of vast, uncontrollable library of ancient references. It’s a door open to the unknown,” she explains.
Furthermore, she points out that it is often considered that “any provision of the Maliki rite is good to use. And in general, it is not used wisely”.
As citizens, we have the right to know the laws that govern our daily lives
“For example, article 16 of the current Family Code brought about the regularization of marriages which could not be recorded in writing. The duration of application of this provision was planned for five years, between 2004 and 2009, then it was extended twice. In 2019, this provision was not renewed again because it was found that it allowed people who wanted to circumvent the law, for example in matters of polygamy and underage marriage, to go through the marriage of there Fatihah before regularizing it,” continues our interlocutor.
But the non-renewal of this provision was not enough. According to Nouzha Skalli, “judges began to refer to article 400 to regularize marriages by Fatihah”.
-For Nouzha Skalli, “this article 400 has no reason to exist”. She believes that “when we want to find solutions, we can look in other rites”. According to her, “the most important thing is to find solutions to the problems we are experiencing and which are serious like the problem of recognition of children born outside of marriagewho have no responsibility for the way they came into the world”.
Nouzha Skalli recalls that “Morocco has ratified the International Convention on the Rights of the Child whose first rights are that of identity and that of living as a family”.
“These are rights which correspond to Morocco’s international commitments through the Constitution and international texts through the CIDE (International Convention on the Rights of the Child, editor’s note). And we have seen that His Majesty King Mohammed VI has not stopped asking that we comply with the Constitution and ratified international conventions, as well as universal values,” she underlines while recalling that it is also a “constitutional commitment” since “the Constitution recognizes the supremacy of international conventions over national laws”.
The Maliki rite largely inspires the provisions of the Family Code without being for the benefit of women. It is rather used for refuse paternity despite the presence of DNA
For Nouzha Skalli, “article 400 can be replaced by providing a reference to the provisions of the Constitution which is the supreme law and to international conventions ratified by Morocco”. According to her, “this is how we will be in modernity, progress and values of equality and of justice which are cited in article 400 in its current version”.
Our interlocutor believes that “the Maliki rite largely inspires the provisions of the Family Code without being for the benefit of women. It is rather used for refuse paternity despite the presence of DNA”.
“Article 400 must continue to seek equality, justice and harmonious coexistence in common life. Is denying paternity to a child a harmonious coexistence? Don’t equality, justice and coexistence begin with recognition of others and their human dignity everywhere and in all circumstances?”, she asks.
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