Source of authority, shari'a and legitimacy

The Council does retain, in Article 2, the statement that ‘the Palestinian people are the source of authority’, and adds a fuller formulation: ‘which is exercised through the legislative, executive and judicial powers on the basis of the principle of separation of powers’.

Of importance for family law reform, however, is the Council’s addition of clear provisions affirming Islam, shari'a and the role of religion in public life. Al- Qasem’s draft had deliberately avoided any reference to this or other potentially ‘divisive’ issues, as he explains in a commentary:

It has been the regular practice in the Arab states to declare that Islam is the religion of state and shari'a the main source or a source of its legislation. Within the Palestinian community, there are various trends on the subject: the secular, the modernist and the fundamentalist. It was thought that such an issue should be decided upon in an atmosphere of freedom when the time comes for the preparation of a permanent constitution. (al-Qasem 1992-94: 198)

By contrast, the Council’s draft Basic Law affirms in Article 4 that:

1. Islam is the official religion of Palestine with respect accorded to the sanctity of all other religions.

2. The principles of the Islamic shari'a are a principal source of legislation.

3. The Arabic language is the official language. (PLC 2000)

The use of ‘a source’ rather than ‘the source’, and ‘principles of Islamic shari'a' rather than ‘the Islamic shari'a' are deliberate choices and reflect political compromises and debates, as noted below.

While we would agree with Zubaida (1988: 154) that ‘Islam, in this capacity, as a resource for official legitimation... has always constituted an important part of the political field’, why this legitimation is required and how powerful it is are questions to explore in the Palestinian context, given the overtly secular history of the Palestine Liberation Organization. Hilal attributes this change first to ‘a series of crises and blows’ to the PLO in the 1980s and then to ‘the establishment of the PNA^,, where ‘political Islam and the Palestinian National Authority have both been manipulating popular religiosity and “traditional” solidarities and affiliations in a fight for hegemony over the public sphere’ (Hilal 2000).

In describing ‘state, power and politics in the modern Middle East’, Roger Owen (1990: 40) broadly notes that: ‘No regime felt able to abandon Islam entirely, for this would have been to cut the most important single ideological and cultural link between it and the bulk of the population’. In the Palestinian case, the single most important link historically has been Palestinian nationalism, identity and resistance as mediated between a movement of national liberation/ resistance and communities in exile and in Palestine, although the link with communities inside Israel proper has had a different character.

Social compromise and executive resistance This being said, however, the Council did not treat Article 4 in a pro-forma fashion, and it was the subject of a prolonged and sometimes heated debate inside the Council, so much so that, at one point, the Council postponed discussion of the first section of the Basic Law and went to the less controversial next section (interview with Shuaibi, 2000). The eighty-eight-member Council - with only five women members - has a small but activist pole that can be termed progressive and secular and another relatively small but also activist bloc that can be described as Islamist. In the centre are the bulk of the Council members who are predominantly loyal to the Authority, to its main political party (Fateh) and generally to President Arafat himself. Many members, however, are not active in engaging in parliamentary processes and not oriented to parliamentary skills. This centre largely conceives of Islam as an integral part of Palestinian culture, but is not highly ideological. It was thus the two blocs that largely contended over the text of Article 4: initially, the progressive bloc spearheaded the cancellation of the article and then the Islamic bloc led a successful initiative to reintroduce it.

Interestingly, a late addition to Article 4 by the progressive bloc added a reference to Palestine as the ‘cradle of the three divine religions’, which was subsequently removed due to lobbying and petition for amendment by the Islamist bloc and other parliamentarians. The proposed first point of Article 4 read: ‘Palestine is the cradle of the three divine religions and Islam is the official religion of Palestine and all religions are given their due respect and sanctity.’

The formulation of Palestine as the cradle of the three monotheistic faiths is found in the 1988 Declaration of Independence and other Palestinian official documents. The first sentence of the Declaration, after evoking the name of God, begins: ‘Palestine, the land of the three monotheistic faiths... ’ This formu­lation draws from a broad vision of Palestinian heritage that included diverse civilizations and coexisting religions, thus constituting a foundation for the future. The Declaration goes on to state:

Nourished by an unfolding series of civilizations and cultures, inspired by a heritage rich in variety and kind, the Palestinian Arab people added to its stature by consolidating a union between itself and the patrimonial land. The call went out from temple, church and mosque to praise the Creator and to celebrate compassion: peace was indeed the message of Palestine. (Lockman and Beinin 1989: 395)

The narrowing of this vision represented by the cancellation of the reference to Palestine as a ‘cradle of three religions’ in the Basic Law has a number of sources, including the Islamist visions of Palestine as an Islamic waqf but it more strongly reflects localism.

Another important article for legal reform, Article 92, seemingly passed with­out controversy. The relevant portion of the article reads: ‘Matters of shari'a and personal status will be the responsibility of the shari'a and religious courts in accordance with the law.’ Welchman describes in the preceding section how this article was relied upon by the shar'i establishment in challenging the omission of reference to the shari'a courts in the 1998 draft Law Regulating the Judicial Authority. The assigning by the Legislative Council of matters of personal status to the shari'a and religious courts ‘in accordance with the law’ represents what Hammami in the next section, following Bourdieu, calls a ‘doxa’, an unquestioned assumption or belief about the relationship between personal status and shari'a.

The Palestinian Legislative Council passed the final version of the Basic Law in a third reading and presented it to President Arafat at the end of 1996 and again, with some amendments in favour of executive powers and succession, meant as concessions to the President, on 2 October 1997, but it was not signed into effect by President Arafat by the end of the interim period. Indeed, this is the other history of the Basic Law - a long and sharp conflict between the legislature and President Arafat, which began with the President attempting to place the responsibility for drafting the Basic Law only with the Executive, to the extent that the Council’s first draft received the reply that the Executive had no knowledge of such a law.

Other legislation: the influence of public advocacy Among the mere twenty- four laws passed by the Legislative Council in the 1994-2000 period and signed into law by the President, there is none that explicitly contains 5⅛rz⅛-based provisions or refers to Islamic principles in general. The first law’ passed by the Palestinian Legislative Council regulated municipal and village council elections, which were supposed to take place soon after elections to the Council. These elections were postponed on a number of occasions and did not take place in the interim period. The official reason was the difficulties of holding village council elections, given that most villages are in Area B, under joint Palestinian-Israeli control with Israel having the upper hand in security matters, and some in Area C, under direct Israeli control. While there is a grain of truth in the official explanation, a major factor was the Authority’s fear that Hamas would make a strong showing. W hile Hamas and other Islamists boycotted the national elections because of their connection to the Oslo Accords, they were fully prepared to enter into municipal elections. Other laws establish or regulate institutions (such as the Palestinian Monetary Authority) or professions. Two laws were essential require­ments of donors, particularly the World Bank, these being the Law to Encourage Investment and the Law to Regulate Industrial Zones. Perhaps the two most interesting laws for this study are the NGO law and the civil status law, since both were strongly influenced by vigorous lobbying campaigns. After two years of debate, the Authority passed and signed into law a relatively liberal NGO law, which can perhaps stand as a ‘larger symbol of what active and well-organized lobbies can accomplish within the constraints of PA rule’ (Hammami 2000: 19), and thus is important to note for other prospects of legal reform. In the same vein, the civil status law (Law no. 1 of 1999) which regulates the registration of births, deaths, marriages and divorces, among other matters, permits, in Article 17, either parent to register his/her children, a change from prevailing Jordanian law that is the direct result of lobbying by the women’s movement (PLC 2000: 220).

Draft Constitution and statehood after the second intifada The Authority may well transmute into the government of a state without new national elections. If so — or if elections basically confirm the present leadership and its political party - the main features of the state can be delineated which will have con­sequences for opportunities for legal reform. One predominant feature that the new state shares with other states in the region is its ‘externality’ — where the state is ‘deriving powers and resources in good measure from sources external to the social formations which they govern’ (Zuabaida 1988: 162). This is perhaps most clear in financial resources, which will probably continue to be mobilized from the international donor community for the first few years of statehood at least, as part of the price of peace. In the interim period, the majority of public revenue (aside from donor contributions) was generated by revenue clearances rather than direct taxation of the public (Diwan and Shaban 1999: 212-13), also weakening the link between government and governed, as well as public account­ability.

In preparation for a possible unilateral declaration of a state in September 2000 (in the wake of the failure of the Camp David talks), a draft temporary Constitution was prepared by a legal expert mandated by President Arafat in his capacity as Chairman of the Palestine Liberation Organization - thus placing the draft Constitution outside the authority of the Legislative Council, although many provisions in the Basic Law are incorporated. At the time of writing, the status of this document is not biown.³⁸ However, in its present version, it partially bypasses the process of debate and compromise in the Council and declares in its Article 5 that: ‘The principles of the Islamic shari'a are the principal source for legislation and the religions of the book will organize their own personal status in harmony with constitutional rules and maintaining the unity, stability and development of the Palestinian people’ [emphasis added].

This version of the Constitution may well stay on the shelf, but the process of drafting a constitution by executive order is a disturbing indication. The complex dynamics of the second Palestinian intifada will inevitably shape the coming constitutional debate in ways that are difficult to predict, although the populist religious cast of the intifada - and the even greater imperative of the political leadership to contain Islamist opposition to a political settlement - are obvious factors that will affect the positioning of shari'a and the possibilities of family law reform that address the needs and interests of Palestinian women, men and children. Despite the assertion of the draft Basic Law that the ‘people’ are the source of authority, the reliance of the Authority on the powers of both the USA and Israel may well be extended into the next phase, again weakening the develop­ment of constituency-based politics, but strengthening the impulse towards the new state gaining legitimacy from more ascriptive identities in general and in Islam in particular, especially if Islamists continue to challenge the prevailing political order.

However, as Hammami and Johnson (1999: 123) argue, there are ‘multiple and contradictory faces’ of the Authority, which, despite its status as a ‘security regime’ also ‘continues to represent the national liberation movement from which it evolved and thus, despite its coercive function, it remains the political and in­stitutional focus of the population’s national aspirations’. The solution to these contradictions has tended to be a politics that could be termed ‘authoritarian populism’ which denies specific Constitutcncies and publics in favour of ‘the people’ (Johnson and Kuttab 2001) and also excludes those groups or individuals with dissenting voices as not of the people — sometimes citing their manipulation by or for foreign powers, Iran or various Arab states in the case of Hamas and the West and the donors in the case of human rights organizations (and occas­ionally women’s organizations as well). Populism, or some form of mass politics, has tended to put Islam back on the agenda in other Arab and Middle Eastern countries, and may well do so in the Palestinian context. However, the contrary vein to authoritarian populism — of mobilizing active democratic publics — is also present in Palestine, most visibly in non-governmental organizations, but also in the presence and history of social movements, including an active and strategically minded women’s movement, in the West Bank and Gaza. Their challenge as agents of reform in the complex situation outlined in this chapter is discussed in Chapter g.