The Legacy of the British Mandate: Islamic Law Encounters Colonial Politics

Although the British forces only completed their conquest of Palestine in September 1918, they began instituting colonial administrative mechanisms prior to that date (Jerusalem was captured in December 1917).

In Palestine the British came up against an especially complex reality. The millet system, an institutional legal arrangement that perfectly suited the principles of British colonial rule, was about to be revoked and replaced by a general family law (the olfr). As a result the mandatory government faced a difficult dilemma. On the one hand, it could implement the ready-made codex received from the Ottoman legislature: a clear, accessible, formal code that was in keeping with Western judicial principles advocated by the British them­selves. The temptation was obviously great. On the other hand, and perhaps no less tempting, there was the option to maintain the existing millet system that continued to function in actual practice and that apparently enjoyed the approval of all the religious communities in Palestine.^[298]

The British Mandate authorities in Palestine were hesitant about the olfr, as is illustrated by their initial decision, revoked a few months later, not to imple­ment it.3^[299] The solution they eventually adopted reflects, perhaps, the complex political reality in which they were forced to function in Palestine: they chose “to have their cake and eat it.” An ordinance published on 25 September, 1919, decreed that the olfr would be implemented in Palestine, but solely in shari^ta courts, and it would only apply to Muslims^[300] Stated differently, the British de­cided to adopt the olfr in a very partial manner while continuing to maintain a millet-like system that granted legal autonomy in matters of personal status to the different religious communities.

After taking the decision to preserve the quasi-millet structure of person­al status law, the British were careful - during the entire period they ruled Palestine (1918-1948) - not to intervene in the religious laws of the various communities in general, and of the Muslims in particular. Nonetheless, the new political reality led to several essential changes. First, the British Mandate authorities stepped into the shoes of the Ottoman Ministry of Justice and of the Waqf Ministry and started managing Islamic religious matters in Palestine. They appointed Muslim clergy to supervise the shari^ta courts and nominated new qadιs to hear cases. Furthermore, since all ties with the Ottoman Empire had been severed, and it was no longer possible to appeal against rulings given by the shari^ta courts to the grand mufti (Sheikh-al-Islam) or to the court of cassation in Istanbul, a shari^ta court of appeals was established in Jerusalem (1918). The appellate court replaced the Ottoman institutions of appeal, and it therefore had competence to review any decision made by any shari^ta court in Palestine since the date of the occupation.^[301] The SharPa Court of Appeals had three members - a president and two permanent members.

Second, following the riots that erupted during the Nabi Musa celebrations of 1920,3^[302] the British wanted to appease the Muslims in Palestine. After con­sulting with several Muslim senior leaders, they decided to establish a new entity, the Supreme Muslim Council, which would enjoy wide competences in the management of Muslim religious matters in Palestine, including in the appointment of all the employees of the shari^ta courts and waqf institutions (such as qadis, supervisors, muftis, and waqf commissioners)^[303] Although these appointments indeed required the authorisation of the Mandatory gov­ernment, the establishment of the Supreme Muslim Council in fact granted the Muslim community in Palestine the autonomy in the management of its religious matters that it had previously lacked.

The intention of the British in establishing the Supreme Muslim Council was to create an apolitical administrative body in which the management of all Muslim religious affairs would be concentrated. Soon, however, it gained enormous political power under the charismatic leadership of its president, the grand mufti of Jerusalem, Hajj Amin al-Hussayni. The British initially ac­quiesced to this situation, but in 1937, following the publication of the Peel Commission Report, which described the Supreme Muslim Council as a “State within a State,” they dismissed al-Hussayni, expelled him from Palestine, and began closely monitoring the activities of the Council^[304]

There is no doubt that the policy employed by the Mandate authorities toward the shari^ta courts had an enormous impact on the manner in which they developed. The code of law implemented through them during the British Mandate was indeed formulated and promulgated by the Ottoman reformers, not by British colonial officials. However, since it had never been applied in Palestine under the Ottomans, it was the British Mandate that transformed it from abstract words into a binding legal code. The authority of the shari^ta courts over non-Muslims was revoked, and the sharTa was relegated to the level of religious law, or of indigenous law applying solely to Muslims. At the same time, it appears that the authority of the sharTa courts in matters of Muslim personal status was broadened in comparison with the late Ottoman period.

The sharTa courts maintained their preeminence relative to that of other communities’ courts^[305] and even benefited from state allocations, again in con­trast to the latter, which were funded independently by their communities^[306] The establishment of the SharTa Court of Appeals in Jerusalem was a move of far-reaching legal and administrative significance, reflecting a process of localisation and reinforcement of the autonomy of the shari^ta court system in Palestine during the Mandate period.

To summarise, the British policy toward the shari^ta courts in Palestine was ambivalent: it reflected the subordination of the shari^ta courts to the colonial power structure, yet it undoubtedly incorporated many empowering elements that not only preserved the independence of the shari^ta courts but also helped them develop into monopolistic institutions in the realm of the personal sta­tus of Muslims, and hence, into institutions with great community influence. As alluded to in the introduction, this ambivalence, so typical of indigenous legal systems in colonial contexts, would continue under Israeli rule, the pe­riod with which we shall now deal.

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