Towards a new family law: developments and strategies after the model parliament
Even before the closing session of the parliament, the Islamic religious establishment began to distance itself from the Islamist attack and formulate its own position, making public statements supporting shari'a reform as long as it was undertaken by the proper authorities (Al-Ayyam, 14 March 1998).
The religious establishment formed its own committees to draft a Palestinian family law, one of at least three official committees approved by President Arafat. None to date has included women, although the Deputy Qadi al-Quda welcomed a ‘women’s subcommittee’ in one of his public statements. However, this did not happen and, by late 2001, a unified family law had reportedly been drafted by the religious establishment but has not as yet been formally presented to government, legislature or to the public.Another noticeable development has been the emergence of differences between different sectors of the shar'i establishment. As noted in Chapter 6, the Deputy Qadi al-Quda, Shaykli Taysir al-Tamimi, moved to address a number of particular issues raised during model parliament discussions and elsewhere through procedural intervention, issuing administrative instructions to the shari'a courts. On the other hand, the Supreme Fatwa Council, headed by Shaykh Ikrameh Sabri, has turned its attention to a number of family law matters addressed both during the course of the model parliament discussions and by interventions and opinions articulated by the Deputy Qadi al-Quda.47
The post-parliament fatwas of the Council can be compared to those issued before the debate on family law became a matter of high public interest. Thus, in 1996, responding to a question as to the validity of a marriage not registered in the shari'a courts, the Council did not answer the Ciuestion directly, but chose rather to emphasize the legitimacy of the requirement of registration, and to insist that registration was the best form of proof of a marriage and was necessary in order better to protect the rights of wives.
The Council concluded by recommending that the criminal sanction for failure to register marriage should be increased. By contrast, in 2000, in a fatwa entitled ‘early marriage’, the Council responded to a question on the validity of early marriage, and whether a minimum age of capacity for marriage for females could be specified.48 The√⅛toα mentions existing law only to quote the definition of marriage in the JLPS, and thereafter holds with the traditional doctrines of the majority of Sunni jurists, to the effect that minors of both sexes could indeed be married; it adds that consummation was not allowed if it would harm the female, even if she has reached puberty. This opinion stands in contrast to others already cited in this study: notably, the prompt action by Shaykh Abu Sardane, the Qadi al-Qιιda, in raising the age of marriage in Gaza by administrative decree, and the more recent efforts of his deputy in seeking to tighten up registration procedures and prevent underage marriage. It also ignores societal attitudes and concerns cited earlier in support of a higher age of capacity for marriage. In addition, in the earlier 1996 fatwa, the Council had argued for increased criminal sanctions for non-registration; yet under existing law, the marriage of a minor under the age of capacity for marriage is not allowed and could not be registered: thus a parent or other guardian wishing to marry off a minor would either have to do it without registration or submit false information, something that the Deputy Qadi al-Quda is specifically seeking to combat.The public articulation of difference of views between these two branches of the shar’i establishment is a significant development in the ongoing debate around Palestinian family law, and illustrates yet another space in which these issues are in contention. In a 12 November 2001 seminar on reform of personal status law, held in Ramallah under the sponsorship of Al-Haq, a Palestinian human rights organization, the differences between the Deputy Qadi al-Quda Shaykh Taysir Tamimi and the Mufti of Jerusalem and Head of the Supreme Fatwa Council Shaykh Ikrameh Sabri were illustrative of these tensions in attitudes towards existing law and to reform of personal status law.
On the first point, Shaykh Tamimi called on the Supreme Fatwa Council to respect existing law, implying that some of its fatawa were in contradiction to the law. In terms of reform, the sharpest conflict was expressed in positions on the age of marriage, with Shaykh Tamimi affirming that this was an issue on which Iegaljurists differed and thus interpretation was permitted; he advocated raising the age of marriage to the age of legal majority (τushdfvi and also advocated raising the age of obligatory schooling. Shaykh Sabri took the position noted above that minors could be married at puberty. He was scornful of women’s movement initiatives in the present and historically - singling out Egyptian feminist Hoda SharawPs call to abolish polygyny in the 1920s, and affirming that women could be educated not to want to be second wives. In contrast, Shaykh Tamimi began his remarks by noting the need for legal reform, given the differences between laws in the West Bank and Gaza and the fact that these laws do not meet all the needs of society. While affirming that shari'a is the sole framework for reform, he positively noted the demands of the women’s movement, political parties and religious scholars for legal reform. Tamimi had been instrumental in establishing a sunduq nafaqa and affirmed that nafaqa should not be restricted to one year after divorce but that women should be compensated according to the harm done them. Indeed, the two religious figures agreed on little but their support for the recent introduction of the requirement for medical examinations for thalassimia and HIV before marriage. The division between the two senior figures was echoed by other speakers from the religious establishment, pointing to two clear and opposing currents of thought and power that contest family law reform from within religious circles.
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- 2 FAMILY LAW