The Sharxta Courts in Israel as Sites of Resistance
This concluding section focuses on two particular sharita courts, in Beersheba and in West Jerusalem, where I conducted participant observations.[335] [336] [337] [338] [339] I argue, as mentioned above, that viewed from a postcolonial perspective, these two courts clearly constitute arenas of both control and autonomous action. Since the function of control has been dealt with previously by other writers/1 I will concentrate here on the function of resistance. Many of the litigants who appeal to the sharita courts seek support in various matters: spouses finding themselves in matrimonial conflict ask for the court's help in solving their disputes; wives, deserted by their husbands, seek financial help in the form of an alimony decree; minor girls may seek the protection of the court and ask it to prevent their being forced to marry an unwanted husband; and a group of kin may ask for the court's guidance in devising an inheritance in a proper sharct manner. All these are quite common appeals that may be dealt with by the sharita courts on a daily basis. The sharita courts in Beersheba and Jerusalem, however, also provide support for different types of distress and need. In Beersheba, for example, the bedouin population of the Negev uses the sharita court for the purpose of maintaining important aspects of their “traditional” way of life. This way of life is threatened in the modern era, and not only in Israel/2 One way to preserve it is to stick to tribal social logic that emphasises the size of the patrilineal descent group as a criterion for social status/3 In other words, it appears that Bedouin men are generally striving to maintain large families with a significant number of offspring/4 This task is difficult to achieve, however, because state law bans polygamy and criminalises it. In Jerusalem, in contrast, where the Israeli-Palestinian conflict has become the organizing principle that shapes all aspects of life in the city, the Israeli sharita court constitutes an important “mechanism of normalisation.” This court - which was initially viewed with suspicion and distrust by the Muslim- Palestinian population, who saw its establishment in the late 1980s as just another attempt to marginalise Islamic institutions in the city - has gained considerable legitimacy among this population in recent years. Indeed, the ban on appealing to Israeli courts is still intact in Jerusalem, but it appears that the sharita court has been excluded from it and that Muslim Jerusalemites have flooded this court in recent years with thousands of appeals?6 I argue that the recently achieved “popularity” of this court among Muslim Jerusalemites emanates from its perceived functionality. It seems that its presiding qadis (and its personnel in general) have made use of their broad agency to turn this court into a friendly arena for this population. They not only went out of their way to facilitate easy access to the court, to litigant-friendly procedures, and to easy-to-use, functional decisions, they also “enlisted” the court, so to speak, for the mission of resisting anti-Palestinian policies employed by the Israeli authorities in Jerusalem. To briefly illustrate this, I present two short excerpts drawn from an interview I conducted with a Palestinian social worker. This man, who was employed by the Jerusalem municipality, was in charge of social services in one of the neighbourhoods of East Jerusalem and was therefore a frequent visitor in the court. The interview took place in the court's waiting room on 3 October, 2002. The conversation was mainly in Arabic (with a few Hebrew words interlaced in the social worker's discourse): We had a request to take care of a family that was residing in al-'Azariyya. Who requested that you take care of them? Never mind who. A request. They were in a very dire situation: their two children suffered from mental deficiency - the daughter from a severe deficiency, she couldn't take care of herself at all. Neither the mother nor the father could take care of the children. Both were incapable - they didn't work, [were] unable to support themselves. So, we were asked to help them. The problem was, that they were from al-'Azariyya - a neighborhood just outside of the municipal borders of Jerusalem - and therefore beyond our jurisdiction. I told them: “I cannot help you. You live in al-'Azariyya. My hands are tied.” Did they have blue ID cards? Yes, they had. However, the ministry of interior affairs refused to register their children on their parents' ID cards, claiming that they live outside of Israel.[342] Eventually we found a solution: I talked with [he names a sharti advocate], and I asked him to file a suit on the wife's behalf here [in the Israeli sharita court in West Jerusalem] claiming that she and her husband are at odds, and that she had left the nuptial house. The advocate first filed a suit for maintenance and permission to rent a house, and the woman was granted that. We then instructed her to rent a house in the Old City. Not a house, a tiny room, two meters by three. Clearly you cannot live with two children in such a place. The qadi asked for our review of the matter, and we recommended that the children be in their mother's custody. He [the qadi] wanted to speak with the parents, but we explained the situation to him and asked him to run things as quickly as he can, because the children were in such a dire situation. And he did - the whole affair only took a month or so. After the mother had the custody decision, she then went with me to the Ministry of the Interior and we registered her children on her ID card as residing in her Old City house. Only then could we take the kids out of the house and transfer them to a proper institution. And the second excerpt: We had a wife with a blue ID card married to a husband with an orange ID card.[343] They were living in Ramallah, but both were working in Jerusalem, in professional jobs. They were working all day in Jerusalem, and then traveling late at night back to Ramallah, only to return to Jerusalem very early in the morning after. So, this couple had a baby girl. Her mother wanted to register her on her blue ID card, so that she can get child benefits and national and health insurance. They told her: “NO! You live in Ramallah.” What did they do? She allegedly left her husband and went to live with her family in Jerusalem. She then filed a suit for maintenance and custody. After she had her custody order, she registered her baby girl in her ID card. Then they said, “That's it. We have reconciled.” [My interviewee said this in Hebrew (zehu, hishlamnu) and then in Arabic (khalas, istalahna).] Then they went back to living together. These two short excerpts illustrate clearly, I believe, that the Israeli sharita court in West Jerusalem has indeed become an important arena for resisting anti-Palestinian policies in Jerusalem. I suspect that the social worker, whom I interviewed, knew very well that such plots, designed to provide remedies for Palestinians who were threatened with denial of their permanent residency status, could only have worked in a court that is sympathetic to their cause. Discussing the political and legal intricacies of unified Jerusalem in depth, or the complex situation of the Bedouin in the Negev, is beyond the scope of this chapter. For our purposes here, the above examples from the sharfta courts in Beersheba and Jerusalem should suffice to illustrate that the Israeli sharfta courts, like so many other “indigenous courts” studied by postcolonial researchers, are indeed “Janus-faced” institutions that serve opposing functions: they serve as both mechanisms of colonial control and mechanisms of resistance that strive to undermine this control.[344] To conclude, although the sharita courts are perceived by Israeli decision makers as less important institutions than other, more pronounced, spheres of control and struggle (such as the labour market, the education system, or the general legal system), it is precisely because of this that their importance, from the point of view of Muslim Palestinians in Israel, is not negligible at all. In the context of the troubled relationships between the State of Israel and its Palestinian subjects - citizens and permanent residents alike - it seems that the sharita courts have come to constitute one of the most effective arenas of autonomous action. No doubt the qadιs and the other personnel of these courts achieved this status by capitalising not only on their authority but also on the “advantages of marginality.” This conclusion, as this chapter has sought to demonstrate, grew directly from analysis employing a postcolonial framework, which has both provided us with a fresh perspective on an extensively studied institution and brought to light some characteristics of these courts' operations that had not been dealt with previously. I believe the utility of the postcolonial perspective calls, therefore, for further postcolonially informed research into the functioning of the sharita courts in Israel.
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