Shari'a courts: jurisdiction and laws

Until the present, the shari'a courts of the Palestinian West Bank, and the Jordanian-administered shari'a court in EastJerusalem, are governed by Jordanian law, notably the Law of Shar'i Procedure 1959.

In terms of substantive law, the West Bank courts apply BieJordanian Law of Personal Status (JLPS) of 1976, which replaced the 1951 Jordanian Law of Family Rights (JLFR). The fact that they apply legislation issued in Jordan after the 1967 Israeli occupation is an anomaly, since in all other areas the law was ‘frozen’ in its pre-occupation state, and Israeli military orders took the place of legislation. However, from the start of the occupation, the West Bank shari'a courts refused to have anything to do with the Israeli authorities, protesting at Israel’s illegal annexation of East Jerusalem, the extension of Israeli municipal law to East Jerusalem and Israel’s refusal to recognize the validity of rulings from the Jordanian-administered shari'a courts situated there, which comprised the first instance shari'a court for East Jerusalem and the Shari'a Court of Appeal. The latter reconvened under an initiative from the West Bank shar'i establishment after the occupation to hear appeals from all the West Bank courts and thus replacing, for West Bankers, recourse to the Amman-based Shari'a Court of Appeal which had been serving them under Jordanian rule (Welchman 2000: 51-76). In short, although the Israeli occupation authorities assumed all supervisory functions for the regular (statute) court system, the shari'a courts in the West Bank maintained a determined non-recognition of the occupation authorities throughout the period to 1994 and continued, in so far as practicalities would permit, to be administered by the Office of the Qadi al-Quda (Chief IslamicJustice) in Amman, through an Acting Qadi al-Quda in Jerusalem appointed by the Jordanian authorities.

By contrast, the shari'a courts in the Gaza Strip, which as noted above had not been integrated into the Egyptian system, were administered from 1967 to 1994 by the Israeli Military Governor of the Strip through the Officer for Religious Affairs (Abu Sardane n.d.: 247). In the Gaza Strip, the courts apply the Law of Family Rights (LFR) of 1954, issued by the then Egyptian Governor of the Strip.⁸ The shari'a courts in Gaza do not apply post-1967 Egyptian law, so the personal status law promulgated in Cairo in 1979 and subsequently,amended in 1985 and 2000 has not been applied; nor did the 1954 Law of Family Rights constitute a codification of the then existing Egyjjtian personal status legislation. The LFR bears a much closer resemblance to the Ottoman Law of Family Rights 1917, which was applied in Palestine but not in Egypt. Procedure in the Gazan shari'a courts is governed by the Law of Shar'i Procedure 1965,⁹ which specifies juris­diction, although in abbreviated form, in the same areas as the Jordanian law, including personal status and family law matters, waqf and dij>a.

Both the Jordanian law applied in the West Bank and the Egyptian-issued law applied in the Gaza Strip purport to draw on rulings from other schools of law, although it is to the dominant opinions of the Hanafi schools that the judiciary is directed as residual reference in the absence of a particular provision in the codified law.¹⁰ In their general sweep the West Bank and Gaza codes are as similar to each other as to those of other Arab states, and maintain certain gender specificities characteristic of ‘classical’ fiq!v. it is indeed the pattern of these char­acteristics that is presented as the ‘general framework’ within which reform may be introduced." Marriage is presented as a contract giving rise to rights and duties specific to each spouse; the husband must pay dower and maintenance to his wife, treat her well and provide a home for her; the wife is to obey her husband in lawful matters, including moving to live with him if he moves, while main­taining freedom of disposal over her private income and property.

Beyond this general picture, the separate post-1948 legal histories have given rise to different rules in a number of specific areas, as summarized below.