Shar'i establishment positioning on personal status law

At least two efforts to draft a Palestinian personal status code came from within the shar'i system during the transitional period. In 1995 Abu Sardane announced that he was establishing a committee made up of himself and the heads of the two Shari’a Appeal Courts in Gaza and the West Bank to unify application of Muslim personal status law in the two areas.

Abu Sardane recognized that some existing provisions were no longer appropriate, and that the public interest should be realized by selecting from among the rules of ‘the four well known fiqh schools or from other recognized schools’. Generally, however, he declared an inclination towards the Jordanian model applied in the West Bank, considering it better ‘developed’ than the Gazan law. IIe expected a draft to be swiftly completed and ’presented to President Arafat for constitutional approval to be given in accordance with the Proclamation and in light of the independence of the shar’i judiciary’ (Abu Sardane n.d.: 180, 49-50). In terms of process, he was of course speaking before the election of the Legislative Council in 1996, but, at the same time, his action clearly asserted the right of the shar'ijudiciary to be the prime resource in the drafting of any state-issued codification of shari'a law.

In the meantime, at the end of 1995, Abu Sardane himself proceeded to issue an administrative decision on a matter of substantive law - the minimum age of capacity lor marriage in the Gaza Strip, setting the minimum ages of capacity at fifteen hijri for females and sixteen hijri for males, the ages applicable in the West Bank under the JLPS. After Abu Sardane returned to Jordan, his efforts were taken up by Deputy Qadi al-Quda Shaykh Taysir Tamimi. The latter was similarly vigilant of the status of the shan'a court system, notably when confronted in June 1998 with a draft of a Judicial Authority Law being considered by the Legislative Council’s Legal Committee, which omitted any mention of the shar'iJudiciary.

A memorandum signed by Shaykh Tamimi and a number of other senior officials in the shar'i system recalled the presence of the shar'ιJudiciary in Palestine since the Islamic conquest, referred to Article 92 of the draft Basic Law, and called on the Legal Committee to draft a law for the shar'i judiciary (Al-Quds, 9 June 1998). In a meeting between members of the shar'iJudiciary and members of the Legal Committee, the press reported that it was agreed that ‘not mentioning the shar'i judiciary was an oversight’. For his part, Shaykh Tamimi reportedly declared that the draft Judicial Authority Law was unconstitutional as a result of the omission, and himself presented to the committee a draft Law of Establishment of Shari'a Courts in Palestine. He described ‘the attempt to wipe out the shari'a courts’ as ‘aimed at dealing a blow to our national struggle and our historical battle with those who deny our rights’ (Al-Quds, 10 June 1998). The link being made here between the shari'a court system and the national struggle is clear in its assertion of legitimacy.

Issues of substantive law similarly preoccupied Shaykh Tamimi in 1998, the year of the culmination of the efforts of the model parliament, discussed below. A newspaper interview with Shaykh Tamimi indicated some of his basic positions, including the title summary: ‘Humans may not try to prohibit what Allah has permitted: the scholars of shari'a and the PLC members are the only party empowered to set the law of personal status’ (Al-Quds, 8 March 1988). In the interview, Tamimi was reported as criticizing a number of particular points in the various proposals being discussed while conceding concerns on certain matters, including underage marriage of females and the exclusion of women from their lawful inheritance entitlements. In response to the discussions at the model parliament on matters of personal status, Shaykh Tamimi announced the establishment of a preparatory committee to work on the drafting of a personal status law.

Shaykh Tamimi described the motivation as a need to unify the West Bank/Gaza laws ‘as a basic step in establishing the state and establishing the principle of unified and inalienable Palestinian sovereignty’. The draft would be drawn from ‘the Qur'an, the Sunna, and the recognized schools offiqh^, and would in time be presented to the Legislative Council’s Legal Committee for discussion. The committee was of broader membership than that constituted by Abu Sardane, although confined to those with ‘establishment’ experience in fιqh and religious studies.³²

A number of issues are referred to or involved in such reports. First it might be noted that Shaykh Tamimi continues to assert for the WzarVjudiciary a certain measure of control (through claiming the right to the drafting function) over the content of the law they are to apply, subject to discussion and promulgation by the Palestinian Legislative Council. Second is the linkage between shari'«-related matters and the process of state-building and the principle of national unity: here, the appeal is to pre-occupation and pre-colonial history and the sense of continuity represented by the shari'a courts - a suggestion oi 'authenticity which is expressed directly in arguments about the nature of personal status law. At the same time, this appeal is based on a system that is premised upon the communal distinctions between Palestinians of different religions, and the 'unity referred to in this framework can thus legally only really mean ‘unifying’ the laws in the West Bank and Gaza. Third, there is the insistence that persons working on drafting a personal status law are to be (suitably') 'qualified'. 1 he clear implication is that they should be qualified in Jiqh and ‘religious studies’. The status of the shari'a as the sole source of legislation for personal status issues is not open to discussion.

That said, besides working on drafting a Palestinian personal status law in the above committee (reportedly complete in draft form by early 2002).

Shaykli Tamimi has responded to certain practical concerns within the sphere of his current competence, through proceeding with the issue of a number of administrative directives to the qadis and other officials in the shari'a courts. These have included an attempt to tighten up registration procedures of marriage, with strict instructions regarding the functions and conduct of the official marriage notaries (zzza W/zzzzzs)³³ and regarding the procedure to be followed by the qadis, in registering a deed of 'acknowledgement (Iasaduq) of marriage’. The latter requires the detailed questioning of the parties regarding the circumstances and exact procedure (or ritual) of their out-of-court marriage, including their ages and anyone else involved in it, and the reasons why it had not been properly registered at court; all the information is to be passed to the Qadi al-Quda’s office for verification.³⁴ Given the concern he had articulated about attempts to marry off underage females being discovered in the shari'a courts, it is likeh∙ that this was a major target of these instructions.

Another administrative directive requires mandatory blood tests for couples planning to many (another concern raised during the debates on personal status)³⁵ and a fourth concerns the allocation by the shari'a courts of inheritance portions between the various heirs to an estate.³⁶ In the latter, the preamble notes representations made to the Qadi al-Quda’s department regarding problematic circumstances in which some heirs get others to waive all or some of their portions, including through fraud (impersonation), ignorance and threats. The instructions set out the detailed information that has to be taken from the persons in∖-oh∙ed, including the personal representation of all those involved (or their guardians if they are minors or do not have legal capacity'), to be verified by' official identity' documents and by persons qualified to identify them to the court. If real estate is involved, precise details of the property in question are to be registered and its monetary' value included in the documentation taken down by the court. The final document is to be signed by' all parties as well as the qadi and the court clerk, and the implications of the diλ^rision to be explained to all those involved, including the monetary' value of their portion 'especially' if it involves real estate, a company' shares or such like’. Again, all the documentation is to be sent to the Qadi al-Quda’s office for verification. Here the Deputy Qadi al-Quda is likely to be seeking to address, though a set of procedural safeguards, his publicly articulated concern over women not receiving their shar'i inheritance entitlements.

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Source: Welchman Lynn. Women's Rights and Islamic Family Law: Perspectives on Reform. Zed Books,2004. — 328 p.. 2004

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Shar'i establishment positioning on personal status law

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