Notes to Part Il

Raw polling data

Center for Palestine Research and Studies (CPRS): December 1995. Survey of Social and Political Attitudes-Jerusalem Center for Media and Communications JMCC): 1995 on Attitudes Towards Legislative Council Elections.

Institute of Women’s Studies, Birzeit University, Comparative Islamic Family Law Research Team: May 2000 Survey.

1. From 1962 this legislation was passed by a Legislative Council and approved by the Governor General, in accordance with a Basic Law issued for the Gaza Strip by the Egyptian Prime Minister (Shehadeh 1997: 77).

2. Robinson (1997: 54) considers ‘the divergence in the legal codes and traditions of the West Bank and Gaza Strip’ to be ‘the single most important obstacle’ to legal reform in Palestine. He discusses at some length the ‘considerable rifts’ that have arisen as a result of the ‘politics of legal reform’ between the legal communities in the West Bank and in Gaza.

3. See Welchman (2000: 30--45) on shari'a court jurisdiction under the Ottomans and the British.

4. Bisharat (1989: 121) further observes that the relatively more ‘familial’ ambiance of the shari'a court and the formal religious attire of the qadi ‘associates the qadi with an indigenous rather than an alien tradition’.

5. The issue of the application of Israeli laws to the Muslim Palestinians of East Jerusalem is not considered in this review: see Welchinan (2000: 56-67).

6. Articles 103 and 105 of the Jordanian Constitution specify as exclusive shari’a court jurisdiction over questions of personal status where the parties are Muslim, issues of diya where the parties are Muslim, or one is a non-Muslim but agrees to shari'a court juris­diction, and matters relating to Islamic waqf.

q. These include marriage, divorce, dower, jihaz, maintenance, paternity, child custody, guardianship, and ‘all that happens between two spouses the source of which is the contract of marriage’, as well as matters such as the property of orphans and missing persons (Article 2).

8. Published in the Palestine Official Gazette (Al-waqa'i' al-fιlastiniyyd) no. 35 6/15/54 as Order no. 303 of 1954.

9. Published in a special issue of the Palestine Official Gazette on 22/5/65.

10. Article 183 of the JLPS; Article 187 of the Egyptian-issued Law of Shar'i Procedure in the Gaza Strip.

U. The following overview of the substance of the two laws was first published in the International Survey of Family Law (2000 edn), and I am grateful to the editor, Dr Andrew Bainham, for permission to reproduce here, in amended form, the relevant extracts.

12. And in certain circumstances (e.g. breach of a stipulation in a marriage contract, or a disease or physical condition preventing consummation of the marriage) by the husband.

13. Recent research (Welchman 1999: 136) indicates that this is the most common form of divorce registered in both the West Bank and Gaza Strip.

14.OLFR, Articles 4-7.

15.JLFR, Article 4.

16.JLPS, Articles 5 and 6.

17.Proxnded she meets certain conditions related to mental, physical and moral capacity to bring up children, and does not marry a man outside certain very close degrees of relationship to the child.

18.JLPS, Articles 161 and 162.

19.LFR, Article 118.

20. In which case he must pay for the children’s maintenance and pay his ex-wife a fee or wage for her services in undertaking custody.

21. For example in Morocco: Mir-Hosseini (1993: 102).

22.The agreements include: the Declaration of Principles, 13 September 1993; the PLO-Israel Agreement on the Gaza Strip and Jericho (also known as Oslo I) of 4 May 1994, superseded by the Interim Agreement on the West Bank and Gaza Strip of 28 September 1995 (also known as Oslo II). See Shehadeh (1997) for a rigorous legal analysis of the agreements.

23.Some parts of the following section were first published in Welchman (2000); I am grateful to the publishers, Kluwer Law International, for permission to reproduce here, somewhat amended, the relevant extracts.

24.Published in Al-Quds, 24 May 1994, reproduced in Palestine Yearbook of International Law, 4 (1992).

25. Decision no. 17 of 6 May 1994 appointing Abu Sardane Wakil to the Ministry of Justice for shari'a courts (Abu Sardane n.d.: 93 and 42).

26. For a short while there were two muftis in EastJerusalem, the other appointed by the Jordanian authorities; see Welchman (2000: 81).

27. Reproduced in Palestine Yearbook of International Law (ι994-1995). pp. 277-9.

28. Decision no. 6 of 2 January 1995.

29. Law no. 8 of 1952, Articles 3 and 4 (Bakri 2000: 37).

30. Appeal decision 521/1996 (Bakri 2000: 37).

31. Appeal decisions 451/1996 and 620/1996 (Bakri 2000: 37 8).

32. As reported in: Al-Quds, 2, 5 and 14 April 1998, and Al-Hayat al-Jadida, 1 May 1998.

33. Administrative directive no. 15/481 of 15 April 2000.

34. Or, if it had been registered at some point but the document was no longer available, the details of that contract. Administrative directive no. 15/1358 of 11 September 2000.

35. Administrative directive no. 15∕7∏ of 11 May 2000.

36. Administrative directive no. 15/1366 of 12 September 1999.

37. Yasser Arafat signed the Basic Law at the end of May 2002, following a prolonged Israeli military offensive into the West Bank including the siege of his Ramallah head­quarters.

38.A new draft constitution was published on 8 February 2003, prepared by a com­mittee headed by Dr Nabil Shaath, apparendy in consultation with a wide range of advisors. Its Article 7 returns to the ‘principles of Islamic shari'a^, as a main source of legislation, but otherwise adheres to the text of the earlier draft’s Article 5.

39. For an extended discussion of the different positions see Hammami and Johnson (ⁱ999) ^and Othman (1998).

40. Due to lack of space, it is possible to make only a few general comments about the problems of polling data used in the following discussion. I have used the data very conservatively — this means both in assessing the sampling and in taking a critical eye to the ways in which questions were posed.

41. Given the consistency of the socio-economic indicators between the GPRS and the FAFO surveys, the difference cannot be attributed to sampling error.

42. ‘Islam is the solution’ is a common rhetorical means of expressing a belief in and desire for an Islamic social system and political system. The specific constituents of such a socio-political order tend to remain vague unless elaborated or constructed by specific Islamist movements or states. As for ‘making the highest sacrifice for the Islamic Umma’, again this is a measure of commitment to political Islam in the abstract. It is a measure of abstract primary loyalties, since it is usually asked in relation to family, clan, and secular nation (i.e. the Palestinian people).

43. Voter exit polls showed that while a large percentage of men and women had voted for female candidates, the regional and first-past-the post electoral system was unfairly stacked against them.

44. This was a survey undertaken by JMGC on behalf of the Palestinian Working Women’s Society (PWWS) in March 1999.

45. Note that our study of the use of shari’a courts in Chapter 8 included not only cases but also administrative transactions; thus the registration of marriage was the most com­mon interaction with the courts.

46. The account of events of the parliament is mainly taken from Hammami and Johnson (1999). See also on this, and on other legal issues addressed in the various docu­ments and in the plenary discussions, Welchman (2000: 360-73).

47. The following information and analysis of the fatwas was contributed to this section by Lynn Welchman.

48. Supreme Fatwa Council, no. 66/2000/5 of 4 May 2000.

49. In the provisions of the JLFR 1951 and, for the female at least, in the JLPS 1976, legal majority Jushd) (and full competence to marry) is achieved at seventeen and eighteen years by the lunar calendar for females and males respectively. In the Jordanian Civil Code 1976 (Article 43/2), the age of legal majority is set at eighteen years by the solar calendar for both (Welchman 2001: 250).

50. The term has resonance with fiqh writings: for Muslim jurists such as Ghazali and Shatibi, the ‘five maqasid’ of the shari’a (‘the five fundamental universals for the protection of which the shari’a was instated’) are ‘the principles of protecting life, private property, mind, religion and offspring’ (Hallaq 1997: 112 and 166).

51. Except for those in Ihejurisdiction of special tribunals such as, these days in Jordan, the State Security Court.

52. Writing in the early twentieth century about customary law processes following a murder in the Hebron district, Haddad (1920/21: 105) observes that ‘Peace cannot follow directly after hostility’.

53. Haddad (1920∕2r. 104) uses ‘armistice’ to translate 'atwa, and identifies 'atwa as an older word meaning hudna ‘in modern Arabic’. Hardy (1963) refers to 'awta as ‘the truce’.

54. Awa (1982: 74) notes two hadiths of the Prophet setting a hundred camels as the diya for homicide, with forty of these pregnant in the case of the ‘heavier’ diya. Most schools accepted payment of the equivalent amount in gold or silver.

55. Information from an interview with Advocate Naser Amro, a member of the jaha.

56. Watt (1968: 7) notes that ‘in Mohammad’s time the blood-wit for an adult male was a hundred camels, and for a woman fifty’. Awa (1982: 76) states that ‘among the points of universal agreement in Islamic law is that the blood money of a woman is half that of a man’. See also Anderson (1951: 815). On the other hand, Hardy (1963: 84) reports a tribal judge from central jordan as stating that there was no difference between a man and a woman in this matter: A neck is a neck.’