Shar'i institutions in the transitional period23

Post-Oslo developments in the shari'a court system are distinguished by what appears to have been a markedly proactive approach by the members and leaders of that judiciary and in their serious take on the significance of ‘institution­building’ in the emerging state.

Shaykh Abu Sardane immediately commenced his efforts to protect and pro­mote the status of the shari'a court system and other ‘Islamic agencies’ of the Palestinian state-to-be. He reports criticizing an early draft constitution for the absence of reference to these institutions — the shar'i judiciary, waqf and ifta. In relation to the first, he emphasized the fifteen-century history in Palestine of the shar'i judiciary ‘which was applying the principles of Islamic law long before man-made laws were borrowed from the West’ (Abu Sardane n.d.: 42—7). As is noted in the following chapter, explicit provision for the establishment of shari'a courts, with jurisdiction over matters of personal status, is included in Article 92 of the Basic Law.

In the meantime, arriving in the Gaza Strip to take up his position, Shaykh Abu Sardane was welcomed by the Justice Minister, Freih Abu Meddin, who described the former’s post as both important and sensitive (Al Qιιds, 9 August 1994). Once in place, Abu Sardane set about upgrading the shari'a court system, according to his own claims doubling the number of employees in the first ten months, introducing new training and qualification requirements, and overseeing the production of standardized forms for use in the Palestinian Authority shari'a courts of the West Bank and Gaza Strip (Abu Sardane n.d.: 247-8). At the same time, he was dealing with the considerable complexities of the post-Oslo arrange­ments for the shari'a courts in EastJerusalem.

Relations between the Palestinian Authority and Jordan were increasingly strained by Jordan’s insistence on its ‘special role’ in Islamic sites in Jerusalem, a role specifically singled out for Israel’s ‘respect’ in the July 1994 Washington Declaration signed between King Hussein and Israeli Prime Minister Yitzhak Rabin.²⁷ Palestinian sensitivities over the status of Jerusalem were inflamed by the implication that Jordan might be involved at Israel’s insistence in the ‘final status negotiations’ in regard to the future status of the city EastJerusalem was excluded from Palestinian Authority jurisdiction under the Oslo Accords, and the fact that the shari'a courts there remained part of the Jordanian system was more than a symbolic institutional link. In September 1994, Jordan announced that it would be cutting administrative ties with the shari'a courts and the Waqf Department agencies in the West Bank as of 1 October, with the exception of those in EastJerusalem.

There remained the question of the first instance shari'a court in East Jeru­salem, and the Shari'a Appeal Court for the West Bank which, as noted above, had been convened in Jerusalem since the Israeli occupation. In memoranda forwarded on this matter, the Palestinians formally proposed that the existing connection be maintained, with the Jordanian government mandating the Shari'a Appeal Court in Jerusalem to work in the Palestinian shar'i system in the West Bank until the political future of Jerusalem was determined, and thus to hear appeals from the West Bank shari'a courts (Abu Sardane n.d.: 68). A petition from Palestinian shar'i judges to Yasser Arafat supported this position, and further sought the establishment of the post of Qadi al-Quda in the Palestinian Authority (Al-Quds, 4 October 1994). Abu Sardane’s position was duly upgraded to Qadi al- Quda with the rank of minister, independent from the Palestinian Ministry of Justice and answering directly to the President of the Authority; this set him on the same governmental level as his Jordanian counterpart. The year closed with no response from the Jordanians regarding the arrangements for the Shari'a Court of Appeal proposed by the Palestinians.

InJanuary 1995, with cases building up in the West Bank courts, Yasser Arafat established a Shari'a Court of Appeal in the Palestinian shar'i system; the court was to have its permanent seat in Jerusalem, while provision was made for it to convene elsewhere.²⁸ In practice, the Palestinian court sits in Nablus to hear appeals from all the West Bank first instance shari’a courts except Jerusalem. In Jerusalem, the first instance court hears cases and registers deeds from East Jerusalem, as before, while the Shari'a Court of Appeal still situated there hears appeals only from that one court, both still being administered by the office of the Jordanian Qadi al-Quda.

Israeli-established and administered shari'a court of first instance in Jerusalem to be ‘foreign judgments’ coming under the terms of Law on the Execution of ForeignJudgments 1952, issued by the Jordanians and applied in the West Bank, which requires such rulings to be processed for implementation through the regular court system.²⁹ In the case of the Israeli-administered Jerusalem court, the Pales­tinian Court of Appeal has held that such rulings ‘at the current stage fall outside the competence of the [Palestinian] Execution Department’.³⁰ In regard to Jor­danian courts, the Court of Appeal has held that a decision issued by a shari'a court in Amman ‘has been issued by a court outside the territorial jurisdiction of Palestinian land, and is consequently considered a foreign judgment’ which was therefore outside the competence of the Palestinian Execution Department ‘before the measures set out in the said law [of ForeignJudgments] have been followed’.³¹ Thus, decisions from Jordan may be properly processed and implemented as foreign judgments, but those issued from the Israeli shari'a court in Jerusalem may not. By contrast, rulings of the Jordanian-administered shari'a court in Jerusalem are routinely executed by the Palestinian Authority’s execution offices in the same manner as they execute rulings from the Palestinian administered shari'a courts (Bakri 2000: 37).