Islamic Family Law and the Transition to Palestinian Statehood:
Constraints and Opportunities for Legal Reform
Fadwa Labadi
Penny Johnson
Rema Hammami
Lynn Welchman
The Final Version of this
Report will appear in the book, “Islamic Family Law in Comparative
Perspectives,” Lynn Welchman, Ed. (London: Zed Books, Spring 2002)
The main aim of the Palestine case study has been to assess the legislative and lobbying initiatives related to Islamic law (whether affirmation or reform) in the five years of a Palestinian interim authority (1995-2000) in the West Bank and Gaza, and to delineate the constraints and opportunities that will shape the struggle over legal reform and personal status law in the coming period of Palestinian statehood. The report considers a wide range of actors, including the Palestinian Authority/ emerging state, women’s movement and non-governmental organizations, political parties and the Islamist movements, and legal and religious institutions. For comparative purposes, the report aims in particular to consider how processes of state-building and legitimation, both given the particular constraints and inequalities of the Oslo period and in the context of the Arab world, incorporate, change or resist Islamic law, and how forces for change particularly the women’s movement and initiatives for gender equality, can work in this context.
Although existing personal status law was not substantively amended during this period, a series of critical events and debates occurred which revealed a number of major constraints and opportunities for reform of existing law. Among them were the debates, both within the new Palestinian Legislative Council and in other fora, surrounding successive drafts of a Basic Law and a year-long model parliament, initiated by women’s NGOs. The “model parliament” proposed wide-ranging legal reform on the basis of gender equity; its agenda erupted into public debate in the wake of a sharp attack from some leaders of Islamist movements The attack brought political parties, the religious establishment and the Authority itself into the debate and the issue of legal reform and gender equity was to some extent subsumed by the issue of the nature of Palestinian democracy.
The research team from the Institute of Women’s Studies at Birzeit University attempted to situate the issues in this debate into both the processes of state formation and social dynamics within Palestinian society. We thus analyzed public opinion polls (including our own polling) as well as draft legislation and developments in the shari’a court system, in an attempt to understand how women and men articulate their own needs and interests. To strengthen this understanding, the team also interviewed the families of thirteen women workers who lost their lives in a factory fire in the town of Hebron in October 1999, in order to examine how poor families sought and received or did not receive, public compensation, diya and justice.
The full report, including three background appendices, is a lengthy document held on file at the Birzeit Institute of Women’s Studies and at Emory School of Law with the Project Director. An edited version will appear in a volume of case studies from the Islamic Family Law project being edited by Lynn Welchman and published by Zed Press under the title Islamic Family Law in Comparative Context. Following is a summary of the report’s first three chapters, an abbreviated version of chapter 4 , and the research team’s conclusions for further discussion and debate. Appendices on legal developments in the shari’a court system since 1994 (Ala Al Bakri), secularism in the Palestinian national movement (Jamil Hilal) and the Hebron factory fire (Fadwa Labadi) are not included, although some main observations are included in the summaries below. The summary report thus includes:
1: Shari’a courts and personal status laws in Palestine
2: Palestinian governance and state legitimation: shari’a and legislation
3: Attitudes toward legal reform of personal status law in Palestine
4: Agents for reform: Women’s movement, social politics and family law reform
5: Conclusions
As the team was preparing this report for final submission, the profound “interim inequalities” of the transitional period, which the report briefly discusses, and the long delay in Palestinian independence erupted in Palestinian mass protest, Israeli excessive force, and bloodshed that at this writing has claimed four hundred lives, mostly Palestinian. The research team cannot submit this report without expressing its hopes that out of this tragedy, a new framework based on recognition of rights, equality between the parties and the implementation of international resolutions and international law will lead to a genuine and just peace and an independent and democratic sovereign Palestinian state capable of meeting the needs and fufilling the rights of all of its citizens.
SUMMARY
OF CHAPTER 1
Shari`a Courts and Personal Status Law in Palestine
This chapter gives an overview of the shari`a court system in Palestine (the Palestinian territories of the West Bank and Gaza) and the provisions of Islamic family law applied in them. It notes the presentation, by the shar`i judiciary and by others, of both the system and the laws it applies as a long-standing constant in the region, its historical standing endowing it with unassailable legitimacy as part of the system in the coming Palestinian state. In this regard, scholars have noted a greater familiarity and cultural legitimacy that adheres to the shari`a court system compared to the civil court system and the Israeli military tribunals in operation in the area during the Israeli occupation. More recently, the association of the shar`i system with an explicitly articulated national Palestinian identity and cultural heritage has been a feature of the claims for its place in the Palestinian state. In these claims, the ‘rootedness’ of the shar`i system both in terms of time and in terms of its presentation as indigenous is held up for comparison, usually implicitly, with the statute court system and laws imported from the West as of the nineteenth century.
Shari`a Courts, the Law and the State, pre-1994
The chapter looks at the history of central control over both courts and laws from Ottoman times until the present day. It was only at the beginning of the twentieth century that the Ottomans - at the end of Empire - issued state codifications of personal status law for implementation by the shari`a courts in their territory. Over the course of the nineteenth century, the shari`a courts had been stripped of much of their jurisdiction with the transfer of large areas of law (in the Tanzimat reforms) to the newly-constituted ‘statute courts’ (nizhamiyya) which applied codifications modeled on European (largely French) imports. Remaining in the shari`a courts were matters of waqf, personal status issues and diya, where the parties were Muslim or where the parties were mixed but the non-Muslim party agreed to shar`i jurisdiction.
In civil law, the Ottomans stopped short of importing a civil code from foreign sources, and had a committee draw up the Majalla, a compilation of Hanafi rules and guidelines, complete with examples, as a reference text for the state court judges untrained in ‘finding’ the law in the traditional Hanafi texts. Certain sections of the Majalla, completed at the end of the nineteenth century, remain part of the law applied in Palestinian courts today. Together with the Ottoman Law of Family Rights 1917 (OLFR) and its accompanying Law of Shar`i Procedure, it represented the first (and last) attempts of the Ottomans to codify the rules of Islamic law applied in the courts under their control. These laws were carried over by the non-Muslim British Mandate authorities in Palestine, backed up in some cases by penal sanctions for non-compliance. The OLFR had included provisions for Jewish and Christian subjects as well as for the Muslim population, but these were not implemented by the British; the non-Muslim communities were expected to apply their own traditional laws unaffected by centralized codification.
Upon independence, Arab states followed different paths in their treatment of the shari`a courts. Jordan maintained the Ottoman pattern, with the process of codification allowing the central authority to control more closely the substance of the law applied in the courts. Jordan’s ‘unification’ of the East and West Banks in 1950 (otherwise described as the ‘annexation’ of the West Bank) underpinned moves to ‘unify’ legislation applicable on both sides of the Jordan, and the 1951 Jordanian Law of Family Rights (JLFR) was one of the first such pieces of legislation. Jordan officially ceased its claims to legislate for the Palestinian West Bank following the 1994 Oslo agreement.
By contrast, left in
military control of the Gaza Strip after the Nakba, Egypt maintained the status of an administrator, appointing
a Governor General to the Gaza Strip and issuing legislation specific to the
Gaza Strip. Unlike the courts in the West Bank, the Gaza courts were not
integrated into the Egyptian national system, and the shari`a courts in the Gaza Strip thus retained their jurisdiction
over Muslim personal status matters when in 1956 the shari`a and other communal courts in Egypt were abolished and had
their jurisdiction transferred to the national courts.
During the direct Israeli
military occupation from June 1967, the West Bank shari`a courts refused any administrative oversight by or liaison
with the Israeli authorities and maintained governance links with the Jordanian
Department of the Qadi al-Quda.
Insisting on their Jordanian (critically, Muslim) institutional affiliation,
the shar`i establishment (with the
approval of the Jordanian authorities) put an Acting Qadi al-Quda at the head of al-hay’a
al-islamiyya (the Islamic Board), established by notable personalities of
the shar`i establishment to
administer Muslim affairs in the West Bank, particularly in East Jerusalem, in
the absence of a Muslim sovereign. This was also in protest at Israel’s illegal
annexation of East Jerusalem, the extension of Israeli municipal law to East
Jerusalem and Israel’s refusal to recognise 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 which re-convened after the occupation to
hear appeals from all the West Bank courts.
The fact that the West Bank
courts today apply the 1976 Jordanian Law of Personal Status is due to this
position of the shar`i system and,
except in East Jerusalem, a de facto acceptance of this situation on the part
of the Israeli occupation authorities. In East Jerusalem, more determined moves
were made by the Israeli occupation authorities to oblige Muslim Palestinians
to use Israeli-administered shari`a
courts and to obstruct implementation of rulings from the Jordanian-linked shar`i system in the city. For the
Israeli authorities, their ultimately quiescent position - apart from in
Jerusalem - may be attributable to the fact that they saw little strategic
economic or political advantage in forcing further confrontation by seeking to
directly control the courts dealing with personal status in the West Bank. The shar`i judiciary’s insistence on the
continued link with Jordan was framed in terms of the necessity for a Muslim
ruler; and for Israel, Jordan was clearly less of a threat than an
institutional decision to form or recognise an independent Palestinian Muslim ‘ruler’ to direct the shari`a courts. In Jerusalem itself, the recognition by
Israel in 1994 of Jordan’s ‘historic role’ in relation to the Muslim holy sites
in the city may suggest some further motivation for the ‘abdicatory’ position
of the occupation authorities vis-à-vis Jordan’s continued governance role in
the shari`a court system from
1967-1997.
Content of the Applicable Family Law
While the West Bank shari`a
courts apply the JLPS 1976, the Gaza Strip
courts apply the Law of Family Rights (LFR) of 1954, issued by the then
Egyptian Governor of the Strip, unaffected by post-1967 developments in
Egyptian law. The LFR bears a close resemblance to the Ottoman Law of Family
Rights 1917 which was applied in Palestine but not in Egypt. In line with the
OLFR, both the Jordanian law applied in the West Bank and the Egyptian-issued
law applied in the Gaza Strip make use of rulings from other schools of law,
although Hanafi law remains the residual school of reference in the absence of
a particular provision in the codified law. 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 the gender
specificities of classical fiqh. The
chapter summarises the general patterns and the main differences between the
codes applied in the Gaza Strip and the West Bank. The differences occur in the
various details of the rules on succession rights, post-divorce maintenance
rights, grounds for judicial divorce, ages of marriage and custody.
The chapter notes reported impacts of the first Palestinian intifada (December 1987 –1993) on the work of the shari`a courts and on community responses affecting the implementation of various aspects of family law. It notes a question as to the extent to which such patterns actually affected gender relations within Palestinian society and were or may be sustained post-intifada, and indeed post-independence.
On the institutional level, early in the first uprising King Hussein of Jordan announced the formal severance of administrative ties between Jordan and the West Bank and all Jordanian governmental departments and institutions in the West Bank were dissolved, with the explicit exception of the Ministry of Awqaf and Islamic Affairs and the Department of the Qadi al-Quda, the latter being the department administering the shari`a courts. On 15 November 1988, the nineteenth session of the Palestine National Council, meeting in Algiers, issued the Declaration of Independence of the State of Palestine. A number of painful years later, in May 1994, the signing of the Israel-PLO Gaza-Jericho Agreement and entry of PLO forces paved the way for Yasser Arafat’s return to Gaza in July to head the Palestinian Authority, and for the incremental transfer from the Israeli occupation authorities to the Authority a range of civil functions and responsibilities including administration of the regular (nizhamiyya) and shari`a court systems in the territorial areas submitted to their jurisdiction by this and the subsequent Interim Agreement (with the Declaration of Principles of 1993, these agreements are often termed the Oslo agreements).
Post-Oslo
Developments in the Shari`a Court
System and Personal Status Law
The chapter notes that post-Oslo developments in the shari`a court system (until July 2000) are distinguished by what appears to have been a markedly proactive approach by the members and leaders of the shar`i judiciary and their serious take on the significance of ‘institution-building’ in the putative state. Yasser Arafat appointed Shaykh Muhammad Abu Sardane as Wakil (junior minister, or under-secretary of state) to the Minister of Justice within the Palestinian Authority for the affairs of the shar`i judiciary and ifta.
Shaykh Abu Sardane promptly set about upgrading the shar`i system both quantitatively and qualitatively (see generally Abu Sardane, n.d.). He also established a Council of Ifta made up of ‘a group of qualified persons’ with a mandate to ‘deliver fatwas on matters affecting the Muslim population.’ Within a few months his own position was upgraded to Qadi al-Quda, answering to the President and with the rank of government minister equivalent to his Jordanian counterpart. Under the Authority, a steady increase in the employees of the Awqaf and shari’a courts was part of the general ‘state’-financed expansion of the public sector and part of the overall trend of state building.
In regard to East Jerusalem, relations between the Authority and Jordan were increasingly strained as a result of political developments. In September, Jordan announced that it would be cutting administrative ties with the shari`a courts and the Waqf Department agencies in the West Bank as of 1 October, with the exception of those in East Jerusalem. For its part the Authority’s Council of Ministers announced its decision that the Authority would take over responsibility for the employees of the waqf and the shari`a courts in the West Bank as of that date. Jordan did not accept Palestinian proposals regarding arrangements for the Jordanian-run Shari`a Court of Appeal in Jerusalem, and in the end the Authority established its own Shari`a Court of Appeal, convening for the moment in Nablus. The chapter sets out the arrangements applying to shari`a first instance and appeal courts in Gaza, the West Bank and the Gaza Strip at June 2000, as well as considering the position of certain other shar`i functionaries, including the appointment by both the Authority and Jordan of Muftis of Jerusalem on the death of the incumbent.
The prompt and sustained attention to ‘institution-building’ by the Qadi al-Quda which met, as indicated above, with a positive response from the Executive (in the person of Yasser Arafat) clearly envisaged -- and was surely intended to ensure -- the continuation of the separate communal jurisdiction of the shari`a courts in a Palestinian state. The chapter further examines the Qadi al-Quda’s efforts in relation to the draft text of the Basic Law for the transitional period (discussed further in the following chapters), aimed inter alia at securing provision for the establishment of shari`a courts, with jurisdiction over matters of personal status. His deputy has continued these efforts during the Qadi al-Quda’s extended absence from the area. He and his deputy have also moved to claim for leading members of the shar`i judiciary prime drafting and ‘legitimating’ functions in relation to the development of a Palestinian law of personal status to unify the legal provisions applied in the West Bank and Gaza. The chapter considers the various declarations made regarding these efforts, and also looks at statements made regarding the possible content of such a law in response to the discussions of personal status by the Model Parliament project.
The chapter concludes with a
brief examination of the changes to substantive (in one case) and procedural
rules introduced by the first Qadi
al-Quda and his Deputy. These have included raising the age of capacity for
marriage in the Gaza Strip to match that applicable in the West Bank;
tightening up marriage registration procedures in an apparent attempt to
control underage marriage; extra documentation and judicial scrutiny of the
processes by which inheritance portions are renounced (notably in practice by
women); and introducing a limited but mandatory blood test for couples
intending to marry. Although such moves
are piecemeal, they do respond -- at least on an interim level -- to real and
practical concerns identified by lawyers working in the shari`a court system as well as by sectors of the women’s movement.
In that sense, they invoke the flexibility of the qadis of earlier times in working within the fiqh framework and without direct state (political) authority in responding
to particular cases or concerns. Responding in this manner does not pose a risk
to the shar`i system -- indeed it may
be characterised by some as a feature of it --
nor does it implicate the substantive law it applies, in the same way as
do discussions on fundamental changes to substantive law or the fundamentals of
the legal system: the real - and intensely political -- debate lies elsewhere.
Palestinian
governance and state legitimation: shari`a and legislation
This chapter examines the “political opportunity structure” (Randall in Randall and Waylan, 193) for legal reform of shari’a-based personal status laws in the wake of the establishment of a Palestinian Authority in the West Bank and Gaza in 1994 and the election of a Palestinian Legislative Council in 1996. Noting the limited and non-sovereign form of Palestinian governance under the Israeli-Palestinian interim agreements (the Oslo accords), the study, however, argues that it is precisely these circumstances that produces a rich field of inquiry where processes of state formation, the legitimation of the state, and the constitution of citizenship can be investigated, as it were, in situ. The way in which Islam as ideology, and shari’a as a legal system are positioned and promoted in relation to these processes is crucial to an understanding of the prospects of legal reform, particularly legal reform towards gender equality. As Kandiyoti has observed, ""studies of women in Muslim society have not always acknowledged the extent to which aspects of state practice define and mediate the place of Islam itself" (Kandiyoti 1991 185),” It is one of the main objectives of this case study to try to illuminate this relationship.
This study has comparative value in that an examination of the Palestinian state-in-the-making is relevant to other state transitions and in the fact that this emerging state is both authoritarian and weak, which is highly relevant in the Arab world context, and perhaps in other developing societies. Indeed, the limits on Palestinian sovereignty, as "may be exemplary of the limits to sovereignty that the new world order is able to impose on certain national collectivities," (Hammami and Johnson, 1999) and the various actors shaping Palestinian political, social and economic development constitute a field of power where the emerging state is best conceptualized as a "set of arenas, a collection of practices" (Curthoys, 1993, 34).
This chapter briefly examines how this political opportunity structure is shaped by the current interim and proposed final status agreements between Israel and the Palestinians and the conceptions of rights therein, examining the history of the Basic Law and other legislation. The fact that the Oslo agreements avoided the discourse of rights -- and that further arrangements may well do so as well -- has a range of implications for rights-based legal reform. First, it weakens the legitimacy of the Authority and the upcoming state, and makes both the search for legitimacy paramount and an Islamist challenge based on assertion of rights credible. Second, the daily life of men and women is deeply affected by a series of inequalities in mobility, resources, and status. These dynamics of inequality without recourse weaken any social contract between state and citizen and erodes the rule of law and the development of a public sphere. Appendix A of this report, a case study of the utilization of civil, shari’a and customary law by families seeking compensation and diya after a 1999 Hebron factory fire in which 13 women workers lost their lives, underlines the weakness of both the rule of law and the public sphere, as families find their greatest satisfaction in customary legal processes based on shari’a principles of diya but not directly utilizing the shari’a court system.
The chapter discusses a number of relevant features of the five years of political transition, including 1) the dominance of security 2)the re-masculinization of politics and the reassertion of a private-public divide 3) the conflation of state and society into a unitary model 4) problems of building democracy in the context of ongoing nationalist conflict (and Israeli occupation) 5) the assertion of systems of familiasm and patronage within government structures 6) the conflict between the Palestinian Authority and the Islamist opposition and 7) donor-driven agendas which focus on legal reform but address large-scale legal and political processes through the narrow framework of “projects” and “training.”
The Basic
Law
The chapter examines in detail the history of the Basic Law, the only primary legislation mandated under the interim agreements. The provisions for gender equality in the Palestinian Declaration of Independence (November 15, 1998), were reflected in early drafts of the Basic Law by legal experts, but substantially weakened when subject to discussion in the new Palestinian Legislative Council and Ministry of Justice. Most significantly, earlier drafts were silent on the question of shari’a, while the Council added clear provisions affirming Islamic law and the role of religion in public law, stating in the first two points of 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 Islamic Shari'a are a principal source of legislation.
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 lengthy debate within the Council. Indeed, the formulation can be characterized as a “third way” between secularists and conservatives in the Council and the chapter traces the debates in reaching this form of form of social consensus
The language of these provisions also reflects a pronounced tendency to adopt the language and practice of other Arab states, rather than to differentiate Palestine from them, as part of a project of legitimizing the emerging Palestinian state in the region and among Islamic states, as well as appealing to local constituencies. While we would agree with Zubaida that "Islam, in this capacity, as a resource for official legitimation,… has always constituted an important part of the political field." (Zubaida, 1989, 154), 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. In appendix B of this report focusing on secularism in the Palestine Liberation Organization, Jamil Hilal attributes this change first to a series of “crises and blows" to the PLO in the 1980s and then to a "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.”
In describing "state, power and politics in the modern Middle East”, Roger Owen 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." (Owen 1990, 40). In the Palestinian case, the link between leadership and population historically has been Palestinian nationalism, identity and resistance as mediated in a movement of national liberation/resistance linked to communities in exile and in Palestine, although the link with communities inside Israel proper has had a different character. This link is still present between the Authority and Palestinian society in the West Bank and Gaza, although greatly weakened with communities in exile. Even inside the territorial base of the Authority, however, it is eroded by the failures and contradictions of Oslo and the fears of greater concessions on fundamental rights in the final status agreements. It is in this ideological context, as well as the cultural link to the population, that Islam as legitimation must be situated.
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 favor of executive powers and succession, meant as concessions to the President, on October 2 1997, but it was never signed into effect by President Arafat and clearly will not be by the end of the interim period. Indeed, this is the other history of the Basic Law – a long, sharp and unresolved conflict between the legislative authorityand President Arafat, which began with the President attempting to place the responsibility of drafting the Basic Law only with the executive.
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 which 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 1990, 162) This is perhaps most clear in financial resources, with the majority from donors or from revenue clearances from Israel, rather than direct taxation(Diwan and Shaban 1999, 212-213).
In preparation for the declaration of a state, 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 this writing, the status of this document is not known. However, in its present version, it partially bypasses the process of debate and compromise in the Council and declares in its article 5:
“The principles of the Islamic shari’a are the (our emphasis) principal source for legislation and the religions of the book will organize their own personal status in harmony with constitutional rules and keeping the unity, stability and development of the Palestinian people.”
But perhaps even more
important is where the new government derives its powers. 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 U.S. and Israel will likely 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 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. (Hammami and Johnson 1999, 123)
The solution to these contradictions has tended to be a politics that could be termed "authoritarian populism" which denies specific constitutencies and publics in favor of "the people" 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 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 4.
Summary
of Chapter 3
In the debates that have taken place over reform of family law in Palestine since the mid-1990s, contending arguments have been driven by radically different assumptions and claims about the nature of Palestinian society. . On the one hand, most Islamists tend to pose Palestinian society as unanimously committed to the current system of family law, and in fact desiring the extension of shari’a into other areas of law. On the other side are two strands within the Palestinian women’s movement. One strand attempts to pose national identity and universal human rights as prime values among Palestinians, which can be the basis for moving the society towards reform of family law in the direction of civil law. Similar to the Islamists, the other strand within the women’s movement (largely based in Gaza), poses the society as primarily religious, but importantly, claims it is also cognizant of injustices in the current system and desires reform. Thus, widening women’s rights within the current framework of shari’a-based family law is their proposed strategy. Ultimately, the various reform (or non-reform) strategies can be understood as political projects in which varying assumptions about the nature of the society become attempts at constructing an abstract “social will” to which each party lays claim in an attempt to legitimize its particular vision.
This chapter attempts to critically assess these varying claims about Palestinian society’s attitudes towards reform of family law through an analysis of various polling data undertaken in the West Bank and Gaza since 1994.[1] In order to contextualize the analysis, this chapter begins by assessing what various surveys tell us about the role of religion in social and political life in Palestine. This is followed by a review of attitudes towards the roles and rights of women in the society as expressed through various survey data. Finally, the findings of a poll on attitudes towards family law reform undertaken by the project team in Palestine in spring 2000, in cooperation with a Palestinian polling unit in Jerusalem (the Jerusalem Media and Communication Center or JMCC) are reviewed.
By reviewing various surveys undertaken since 1994, a number of overall observations can be made about trends in religious feeling in the West Bank and Gaza. First of all, the primacy of religion as a focus in everyday life is not a fixed phenomenon. Up to the time of the poll, following the relative decline in physical and psychological insecurity that marked the Oslo period, there was a significant decline in the emphasis on piety in everyday life in comparison to the intifada and Gulf War period where the population was profoundly at risk. In 1992, during the post-Gulf War period of the first intifada, one household survey of the population in the West Bank and Gaza, found approximately 65% of respondents claiming to be religiously “observant”, another 15% self-identified as “religious activists” and approximately 20% identifying themselves as “secular” (FAFO 1993, 260).[2] Three years later in 1995, a Nablus-based research unit, the Center for Palestine Research and Studies (CPRS) attempted to measure some of the similar issues and found that 43% of the population unequivocally described themselves as religious while another 14% claimed to be “somewhat” religious”(Hammami, 1997) . Although the absence of the category “activist” makes comparisons about activist Islam impossible, the overall percent claiming to be religious or “somewhat” religious shows a decline from approximately 80% to 57% within a period of only three years. Clearly, while religious belief, itself, at the mass level is not so directly and immediately affected by political events and economic shocks -- the emphasis on piety -- or the weight given to religion within everyday life can be.
At the same time, survey findings do point to the fact that a high value is given to the various roles Islam may play in society. However, there are clear distinctions made about the specific areas of life in which Islam is seen as important:
|
Role of Religion in Society versus Politics |
West
Bank |
Gaza |
Total |
|
The need to Promote God's word (highly agree) |
77% |
85% |
80% |
|
Parting from religion (very important problem) |
66% |
78% |
71% |
|
Willing to sacrifice highest price for Islamic Umma (Always) |
55% |
60% |
57% |
|
Islam is the solution (Yes) |
66% |
66% |
66% |
|
I support political Islamic parties |
37% |
31% |
35% |
|
Role for Religious men in politics (very important) |
29% |
34% |
31% |
|
Candidate's religiosity is very important election qualification |
37% |
41% |
38% |
Source: (Hammami 1997)
The table above shows that the highest value is placed on religion as a moral and ethical framework in social life, as exemplified by the responses to the first two questions. Islam as the primary focus of group identity has relatively less support, altough support is still high. But it is when Islam is posed as a framework for politics that the level of support dramatically decreases.
The conclusion here is that the degree of “religiosity” in the society cannot be taken at face value, but instead needs to be understood as part of a complex array of beliefs and dispositions which are embedded in concrete but changing social, political and economic circumstances. While the inner core of religious belief is less changeable, it is also does not imply any inevitable social or political vision linked to Islamist politics.
Along with the general support for abstract Islam as a positive social value, surveys have tended to show a similar level of support for “women’s rights” – but again as an abstract good. A 1995 CPRS poll showed that more than 90% of men and women surveyed agreed that “the relation between men and women should be based on equality in rights and responsibilities.” In the same poll more than 80% of men and women asserted that “women’s oppression is an important issue”. However, high support for women’s rights does not necessarily translate into support for concrete changes in gender relations in all spheres of life.
In specific, various polls tend to show that there is high support for women’s political rights and a similar level of support for women’s economic rights – but in areas which concern changes in property relations between men and women or in the re-distribution of power within the family or marriage there is a radical drop in support for an expansion of women’s rights . Highest support is scored for women’s political rights (in terms of voting rights and holding political office) and there is also a relatively high acceptance of women’s political and leadership abilities.
|
POLITICAL
RIGHTS |
Men |
Women |
|
Should Women be Represented in the Legislative Council? (CPRS 1995) |
72% |
75% |
|
Do You Believe Qualified women Should Have equal Chances in Public Responsibilities?(JMCC 1995) |
74% |
87% |
|
Do Women Have the Ability to Lead?(CPRS 1995) |
Yes 60% Somewhat 23% |
Yes 70% Somewhat 20% |
|
Would Vote for a Qualified Woman (JMCC 1995) |
Yes 63% Somewhat 16% |
Yes 81% Somewhat 10% |
This achievement of women’s political entitlement is clearly an outcome of women;s long involvement in and contribution to the national liberation struggle, as well as the women’s movement’s articulation of this contribution.
Popular support for women’s economic rights is also similarly high – but only in relation to women’s access to wage work. More than 70% of men and almost 90% of women believe that women have the right to work outside the home (CPRS 1995). A similar level of support exists for women receiving equal opportunities and wages. However, in one of the only survey questions to attempt to assess women’s access to property, only 28% of men and a similarly low 38% of women claimed that women would be able to manage their property on their own (PCBS 2000). This indirect question indicates the strong social reservations towards women’s independent property ownership which in the concrete is exemplified by the low levels of women owning immovable property (approximately 8% of all women).
While strong levels of support for women’s political rights and rights to income through wage labor exist – these co-exist with a much more limited level of support for women’s rights within marriage. For instance, support for women’s right to divorce is relatively low in comparison to other women’s rights; 57% among men and a much higher 72% among women (CPRS 1995). Similarly, only a small majority of men and women claim that husbands do not have the right to hit their wives: 53% among men and 61% among women (CPRS 1995).
Attitudes Towards Shari’a Law
c
Surprisingly few surveys have explicitly addressed the issue of personal status law. Those that have, show for instance that in an all-women survey 85% of women wanted personal status law to be based on shari’a (PWWS and JMCC 1999). The same respondents who overwhelmingly supported shari’a, simultaneously claimed that that the current laws did not ensure equality between men and women (66%) and assessed the current legal systems as negative (79%). This paradox reflects what Bourdieu (1977) calls a “doxa” – aspects of tradition and culture which are so internalized as to become common sense unquestioned dispositions. Clearly, the notion of shari’a has become a doxa – in this case assumed to be an unquestionable good that everyday negative experiences of the law and courts does not undermine. This reflects one of the most problematic aspects of assessing respondents’ actual stances towards shari’a as a basis of family law. One way of circumventing this “naturalized” nature of support for shari’a is to pose questions which actually move closer to the level of concrete need and practice and do not directly invoke the concept itself.
Based on this understanding, the research team in Palestine undertook a survey that attempted to capture the areas in which there is room for change. The survey was a means to probe more deeply into the contradictions between abstract loyalties and commitments and the concrete problems and needs of men and women as they confront the law.
Only a small minority of the
respondents used the shari`a courts
within the year before the survey (18%), and in the majority of cases this was
for purposes of marriage (49%), followed by inheritance. Of those who used the
courts only 20% expressed unequivocal dissatisfaction with the courts –
although there was a clear gender gap with almost twice as many women in Gaza
dissatisfied as male counterparts
and four times as many women dissatisfied as male counterparts in Gaza.
However, since the majority of court uses was for purposes of marriage this
would tend to explain the overall low levels of dissatisfaction with the
courts.
In terms of minimum age at
marriage and right to choose a marriage partner the survey found results
consistent with findings in the past. On the one hand there is an overwhelming
consensus that neither men nor women
should be able to choose a marriage partner without family supervision or
intervention. At the same time, there is overwhelming support for the age at
marriage to be raised to 18 for both males and females (86% of males support
this compared to 90% of females).
While earlier surveys have
shown a strong resistance to women’s right to divorce, this may possibly be an expression of a
larger taboo against divorce as such. In order to disentangle actual support
for women’s right to divorce from general negative attitudes towards divorce,
the survey asked under which circumstances women should be allowed to request
divorce. Using this strategy, only 4% of men and women came out against women’s
right to divorce under any circumstances. Interestingly, out of a range of
justifiable reasons, the husband being
a “political collaborator” came out as the number one acceptable reason for
women to request a divorce supported by 69% of respondents. Second came a
husband’s mental illness (66%) and third spousal physical abuse (55%). However,
only 20% of respondents cited polygamy as a legitimate reason for women to
request a divorce.
In terms of reform of personal status law, the CPRS survey in 1995 did show that there was support for reform of existing law as long as it remains within the framework of shari`a. In that survey, 61% of males and 57% of females supported the statement, ”The existing Islamic laws (those that relate to social aspects) require re-interpretation in order to become more appropriate to contemporary life.”.Between 1995 and 2000 there has been a growth in support for this position with 84% of males and 88% of females positively responding to the statement, ”Family law should respond to changes and new needs in Palestinian society”. Additionally, the recent survey was able to assess what the preferred nature of this change should be; 41% of males and 62% of females supported change that gave women more rights within family law than presently existed. However, if reform is posed as moving in the direction of civil law, once again the doxa of shari`a comes to the fore. Thus when asked in the current survey if they would support the right of individuals to marry under civil law if this did not affect the right of others to marry under shari’a, only 26% of males and 21% of females agreed.
Another significant finding of the survey was that respondents gave fundamental responsibility for reform of family law to “the people” (at almost 40%) over any other party including religious authorities/the shari`a courts (28%), the Palestine Legislative Council (17%) or the President (12%).
In conclusion, the tentative picture we can draw from various survey data is that while there is a strong emotional commitment for shari`a to remain the framework for personal status law in Palestine, there is also considerable room for negotiating change, particularly within a framework that consideres the articulated needs and interests of men and women in society. More specifically, there is a popular legitimacy for an extension of women’s rights in family law, although there is clear male resistance in some areas,most notably in the issue of property claims either in divorce or inheritance.
Extended
Summary of Chapter
4
Agents for Reform: The Women’s Movement , Social Politics and Family Law Reform
This chapter examines the strategies of the Palestinian women’s movement, particularly its equality strategy, in the post-Oslo period. The equality strategy has guided the movement’s initiatives for gender-aware legal reform, including of shari`a-based family law. This strategy has been countered by other strategies, most sharply, from Islamist currents, but also from the religious establishment and, to some extent, from within the women’s movement itself. Debates erupted into the public arena during a year-long “model parliament” in 1998, and color current efforts to influence the shaping of a new unified Palestinian family law. These debates have taken place in a period marked by a general demobilization of the mass political activity that characterized Palestinian society in the era of Israeli military occupation, particularly from the late 1970s onwards when mass-based organizations of women, students and workers developed in the framework of the Palestinian national movement. The eruption of a new Palestinian intifada (uprising) in the fall of 2000 has occurred on radically different terrain. While its aim of ending the occupation and Palestinian independence are common and deeply-held national goals, these protests pose a set of challenges for civil society and “agents for reform”, like the Palestinian women’s movement under discussion here, to reformulate agendas to incorporate national and social goals that address wide sectors of society and the real needs, interests and rights of women and men in society.
During the period of direct Israeli military occupation, Palestinian mass organizations were “agents of political mobilization” (Taraki 1990, 62) that targeted specific social groups, primarily students, women and workers. Although the primary agenda was national resistance, the very fact that previously excluded social groups were propelled into nationalist politics gave these organizations the character of social movements; in addition, the organizations addressed social concerns – whether workers rights, women’s status or student issues – and also often provided social services, such as childcare and income-generating projects in the case of the women’s movement.
In this context, a new generation of Palestinian women activists founded women’s committees, linked to clandestine political parties. These activists had a strong commitment to grassroots mobilization of women -- usually cast as reaching women in villages and refugee camps, rather than the urban-based character of the established women’s charitable societies -- and an unwavering commitment to national liberation. From their inception, they also explicitly aimed to improve the status of women; agendas for this last goal developed slowly and unevenly in the context of national struggle.
Reform of prevailing Islamic family law was occasionally discussed among activists, but did not become part of any women’s committees’ platforms; the prevalence and repression of Israeli military law and the absence of any address for legal reform made family law reform a moot issue. The secularism of the political culture of the Palestine Liberation Organzation, discussed by Hilal, was reflected in the absence of religious references in women’s committee literature, but this secularism did not offer any challenge to prevailing shari`a-based law or indeed to religiosity in the lives of the population. Both Muslim and Christian clergy were firmly part of the national movement in the framework of “national unity”, a key concept in Palestinian nationalism, although neither had a leadership role.
Only in the wake of the most intense moment of nationalist resistance, the first Palestinian intifada (December 1987-1993) did explicitly feminist concerns and agendas begin to emerge, as women activists both sought to advance women’s claims by virtue of their struggle and sacrifice, and also found this struggle relatively unacknowledged by their own political parties. The intifada also saw the initial emergence of Hamas (Harakat al Muqawama al Islamiyya) the main Palestinian Islamist movement, from the more established Muslim Brotherhood. Women’s increasing public visibility – with young women demonstrating and organizing in public space – met a hostile response from Islamists and from conservative portions of the national movement; attacks on unveiled women in Gaza led to one of the first national conferences discussing social and gender issues, held in Jerusalem in 1989 and entitled “The Intifada and Some Social Issues” in which leading nationalist figures joined the women’s movement to condemn coercion, a move that is echoed in the defense of the model parliament.
The profound political crisis of Palestinian nationalism after Oslo is the main contributor to the decline in mass political activity, as well as the transference from informal to formal politics that marks transitions to statehood. Interestingly, the women’s movement has been the most successful of the social movements in the occupied territories in bridging the Oslo transition for a variety of reasons, including, paradoxically, women’s marginalization from national leadership. This exclusion produced the ability to act more independently than other Palestinian social movements or mass organizations. At the same time, the mass activism that marked the women’s movement’s experience in the intifada has largely been replaced by an NGO model of lobbying, advocacy and workshop-style educational and developmental activities.although the movement’s strategy and activities includes protest activities as well, such as demonstrations against Israeli closure of the West Bank and Gaza and for the release of prisoners.
This transformation has had contradictory effects on potentials for legal reform. At the same time as it has given the women’s movements tools and resources for legal reform initiatives, it has taken away some of its ability to mobilize -- and to represent – women in various settings and strata of society and even its claims to nationalist “authenticity.” Both the “professionalization” of women’s NGOs (Hammami 1995) and the nationalist and social history of the movement are important dynamics in considering the legal reform initiatives in the five years after Oslo and constraints and opportunities in the coming period of Palestinian statehood.
In this period, as noted by a number of analysts (Hammami and Johnson 1999; Jad, Giacaman and Johnson 2000), the women’s movement has been guided by an equality strategy, which has been the driving force in such important initiatives as the creation of a Women’s Charter (1994), the campaign for women candidates and platforms for the Palestinian Legislative Council (1995, with elections in January 1996 that yielded only 4 women members out of 88), reviews of existing legislation and campaigns against discriminatory legislation, the model parliament (1998), examined below, and other campaigns lobbying for equality provisions in the Basic Law or other legislation in the Palestinian Legislative Council.
The women’s movement focused its activity at the beginning of the transtional period on an initiative for a Women’s Charter, inspired by the South African model. Based on the equality provisions of the Palestinian Declaration of Independence and on other United Nations instruments, the Charter attributed existing “discrimination and inequality against women” to the many colonialisms imposed on Palestine, ending with the Israeli occupation,” reinforced by prejudicial “customs and traditions.” (GUPW 1994)
While the Charter went into some detail in regard to rights to political participation and particularly nationality, personal status issues were at the most general level, demanding “the guarantee of women’s full equality regarding issues of personal status.” In a message sent to the conference releasing the document in Jerusalem in August 1994, PLO Chairman Yasser Arafat endorsed the charter but added “as long as there is no contradiction with shari`a.” As we will see below, this was to remain his position throughout the establishment of the Palestinian Authority in the transitional phase.
In the period following the Charter, personal status issues became central to a cumulative number of gender and law initiatives undertaken by the women’s movement. The history of these initiatives shows both the strengths and problems of the equality approach that has dominated the strategic thinking of the Palestinian women’s movement and suggests additional directions and strategies to explore in approach the reform of shari`a based family law in the Palestinian context.
The question of personal status laws (and the status of Islamic shari`a) came into sharper focus with a series of important activities undertaken by the women’s movement reviewing existing legislation and proposing amendments and new legislation within a framework of gender equity. These efforts culminated in a year-long initiative for a model parliament in 1998.
The stated aim of the model parliament was to discuss, draft and have a symbolic vote on "Palestinian legislation that ensures equality and women's human rights for Palestinian women, as well as their participation in building a civil society based on justice, equality, respect for human rights and rule of law” (Othman 1998, 63). While the real parliament was locked into conflict with the Executive over the Basic Law (see chapter 2), in the regional workshops leading up to the model parliament, women and men – community activists as well as women’s movement cadre – reviewed existing labor, social welfare and education, criminal and public law legislation, among others,