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)

 

INTRODUCTION

 

 

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.

 

Intifada developments

 

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.

 

SUMMARY OF CHAPTER 2

 

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).

 

Interim Inequalities

 

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 Search for Legitimacy

 

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. 

 

Features of the State

 

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

Attitudes Towards Legal Reform of Personal Status Law in Palestine

 

 

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.

 

Attitudes Towards Religion

 

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.

 

Support for Women’s Rights

 

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.

 

Pre-Oslo Agents of Political Mobilization

 

 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 Oslo Transition:  Advocacy and Protest

 

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.

 

 

 

The Equality Strategy

 

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  1994 Women's Charter

 

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 Model Parliament

 

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, and explicitly  used the principle of equality to uncover and address gender inequities, as well as recommending special provisions for women's rights in such issues as maternity leave and violence against women.  In general, regional groups working on "benign" issues of labor law and civil law were able to easily reach consensus over changes in line with the principle of equality (Hammami and Johnson 1999, 329)

 

Applying the principle of equality in personal status laws, however, was much more difficult given that the shari`a has a legally defined model of family and gender relations based on complementarity between male and female roles. This “gender contract” – the exchange of male maintenance  for female obedience -  is   fundamental to women’s status as “protected dependents” (Moors,1996, 53) under Islamic law, and to a degree in social relations.  Thus, prior to examining the events of the model parliament and its conclusions  it is worth examining both how the model  parliament attempted to reformulate this contract, and how gender interests and needs in Palestinian social life bear on such attempts to change the balance of gender rights and duties in shari`a-based law.  Below we will briefly discuss maintenance and inheritance in this context.

 

Maintenance and Gender Needs:  A Material Basis in Social Reality

 

The model parliament discussed formulations where the husband and wife are jointly responsible for family welfare (joint responsibility was encoded only in the legal system of the former People’s Republic of South Yemen, and more recently and less straightforwardly in Tunisian legislation).  In her book that served as the sourcebook for the parliament, attorney Asma Khader, a Palestinian human rights and legal expert based in Jordan, suggested this rather complicated formulation: “Maintenance of each human being is his or her responsibility, and the maintenance of the wife or husband who is not working is the responsibility of the other. The maintenance of the children is a joint responsibility between the partners according to their financial ability, during the marriage and after it is ended.”(Khader, 1998, 143)  In parliament discussions, participants basically accepted this formula, but emphasized “whenever possible.”

 

The chapter asserts that provision may well reflect activists’ response to  social and economic circumstances and relationships facing women in various settings in Palestine, noting Palestinian women’s unusually low labor force participation  (at 15% in the West Bank and 8% in Gaza) and unusually high burden of care in the household, given the absence of public social support and related persistent high fertility, with fertility in Gaza among the highest in the world. Palestinian women’s highly restricted access to labor markets are due largely to the dependency of the Palestinian economy on work in Israel,  and some analysts estimate that women are about half of the informal labor force (Hammami, 1997).  In the Arab world, rising formal female labor force participation has fuelled legal reform, whether professional women demanding an end to restrictions on work and mobility or poor working women seeking to divorce non-contributing or otherwise burdensome husbands.

 

The chapter notes the high proportion of cases in shari`a courts   involving women making maintenance claims (Welchman 1999) and notes that this suggests that the right to maintenance remains a real issue for women,  even given the small amounts allotted, underlining women’s lack of access to other economic resources prevailing conditions in Palestine. Indeed, recent research by the Institute of Women’s Studies has shown that half of all  households receiving formal social welfare are de facto female-headed household, with widows and divorcees the overwhelming majority of these households (National Poverty Report, 1998).

 

The issue of maintenance illustrates  the conflict between the equality of citizens and the different status of men and women in the system of family law, reflecting the contradiction between rights in civil/constitutional law (public rights) and rights in personal status law.   But it also indicates some of the material and social reasons that make this conflict difficult to resolve solely by legal reform, without addressing the wider context and how women and men in various settings perceive and act on their interests and needs   In particular, women without access to the labor market or without adequate skills or education may have a different set of interests from working or professional women, whose voices were predominant in the model parliament.  Diversity and difference among women’s interest and needs  is  thus another challenge to the equality argument and its application in family law.

 

Inheritance: Custom, Law and Rights

 

A more discussed and contested issue is the issue of inheritance, in which women activists face both legal and societal hurdles.   On the latter, a number of analysts of Palestinian society have noted the widespread phenomenon of women renouncing their share of inheritance in order to gain their brothers’, sons’ or other male relatives’ putative social support and protection. These observations are confirmed by a recent survey by the Gender Unit of the Palestinian Central Bureau of Statistics which showed that only a quarter of Palestinian women had a right to any inheritance (30% in the West Bank and 16% in Gaza) and of those,  67% of West Bankers and 48% of Gazans did not actually obtain their share of inheritance  (PCBS, August 1999).Here once again, the absence of a state and public social provisions has probably prolonged and compounded a social practice that disallows women inheritance rights, however unequal, under prevailing Islamic inheritance principles.  In the aftermath of the model parliament,  approaches to  inheritance became one of the sticking points within the women’s movement itself.

 

Parliamentary Strategies[3]

In the main document prepared for the parliament, “The Law and the Future of Women,” attorney Khader combined specific recommendations for amendments to existing shari`a law with a general recommendation for a unified family law to be applied in civil courts with a jurisdiction over the whole population. She argues  that Islamic jurisprudence considers the marriage contract as a civil contract, rather than as a sacrament, and argues that men have monopolized the knowledge and interpretation of the shari`a. The law would treat all Palestinians as equal, respect the principles of religion and sources of Palestinian legislation (including shari`a) and make the civil authorities responsible for marriage contracts and other matters not requiring judicial intervention. Khader utilizes Palestinian national unity to show that the present situation of ecclesiastical and shari`a courts violates the principle of equality between citizens (Khader, 1998, 112-117).

 

Within the various regional groups of the parliament, contesting approaches to shari`a quickly emerged. Where religious or socially conservative participants were generally not resistant to the principle of equality in other areas governed by civil authorities -- with the important exception of provisions in criminal law governing penalties for adultery --  the consensus was more difficult to reach when dealing with shari’a-governed personal status law. As noted in previous chapter 3,  several different approaches emerged to the question of reform of existing personal status law. A number of women activists consistently advocated applying the principles of gender equality in the Palestinian Declaration of Independence and United Nations resolutions and pushed for a civil family law applied in civil courts. They additionally invoked the PLO's signing of the 1979 CEDAW  as a legal justification for this position (Othman 1989, 67). Others saw shari`a  as already based on  principles of Islamic justice and equality, and sought its true application.  A third position essentially compromised between the two, by advocating reform within shari`a and affirming that Islamic law is  responsive to  change that reflects the needs of contemporary women and society.

 

Challenging the Parliament’s Standing

 

The debate exploded in the wake of  a sharp controversy that erupted  during the model parliament’s regional workshop in Nablus to discuss personal status law in March 1998.  At that meeting, a prominent sheikh who heads of the West Bank shari`a appeal court challenged the parliament’s right to address personal status law at all, thus raising  public questions about the right of individuals, especially secular women, to debate fundamental aspects of religion and law.  His  intervention, reported prominently in the local press,  was the spark that touched off the larger Islamist attack on the model parliament and the women’s movement. In contrast to his and other shari`a judges’ tempered criticism and continued dialogue, the Islamist attack was of a  different nature. In the aftermath of the parliament, the religious establishment was  deeply concerned  with affirming its own religious authority, but also was open to addressing problems in the fair implementation of shari`a law and considering the contours of a new unified Palestinian family law.

 

Islamist Discourses

 

The Islamist discourse of the attack on the women’s movement  emerged from a larger Islamist literature, with particular features from Islamism in Palestine. The main document of the movement spearheading their attack was a pamphlet entitled "The Arab Woman and the Conspiracy of the Secular Women". The booklet used the common formula of lablling the women's movement as an arm of  the American and European conspiracy  to destroy Islamic civilization. Specifically, the women's movement, along with leftists and secularists in general,  are termed "dissemblers" (munafiquun) -- people who are most dangerous because they are seemingly part of the social fabric but are actually playing the role of destroying it from within. Palestine is seen as the target of many Western conspiracies, which it was able to withstand due to the strength of social and familial ties (al Hoda in Hammami and Johnson 1999, 333). These ties are precisely what the women's movement are trying to destroy through the model parliament. The writers quote  Khader's book extensively, as well as other published material by the Parliament. The message of immorality and Western corruption was disseminated in Friday sermons by imams sympathetic to Hamas throughout the West Bank.  In Gaza, the public campaign against the parliament was much more muted – reflecting the main division within the Hamas leadership, as well as the fact that mosques in Gaza are more closely controlled by the Palestinian Authority.

 

Human Rights and Western Agendas

 

The women’s movement had assumed that the use of  international frameworks of human rights and United Nations conventions as a source of argument would be acceptable in nationalist discourse, given the long history of Palestinian claims that are framed in its resolutions and language. However, the Islamists included a scathing critique of  these international instruments, as tools of  the West for the exercise of power unequally under the cover of universal human rights. Thus,  United Nations sanctions imposed on Iraq are compared to the lack of sanctions imposed on Israel. Universal human rights are masks for difference hiding Western agendas to subjugate Muslims. The writers go on to assert that given this unequal power, notions such as “freedom of thought” will actually be used as a weapon against those who attempt to stop adultery within their own society – they will be accused of  violating  “human rights” (Al Hoda in Hammami and Johnson 1999, 333).

 

In the booklet and subsequent public attacks,  the main focus of the Islamists was not an issue in personal status law per se, but rather proposals regarding reform of the criminal code  which touched on a set of issues concerning control of sexuality, morality and the family: the issue of zina (adultery).  The parliament’s recommendation that adultery not be considered a crime, but simply a grounds for divorce, was presented by the Islamists as  actively condoning immoral behavior and  the  moral breakdown of society, a breakdown such as already exists in the West.

 

Islamist views on the  parliament were not entirely uniform, in particular among the younger female constituency.  For example, a leader of the Islamist Al Khansa Society for Women made a relatively dissident statement in the local press  (Al Ayyam, 14 March 1998) stating that she was not against the parliament in principle, but resented the marginalization of Islamist women within it. Islamic women’s organizations, which also were founded in the post-Oslo period as an alternative to the secular women’s movement, took up the point of responding to the “authentic” needs of society in an effective way.

 

Defending the Parliament,  Defending Democracy or the State?

 

The first defenders of the parliament was the women’s movement itself.  Although shaken by the public attack – some activists even initially recommended withdrawing Khader’s book – the movement rallied around the parliament and used all its political experience and political capital to defend it within political parties and with the public, facing Islamist spokesmen in television and public debates.   New defenders of the parliament began to speak out in the press and media, and the parliament, almost despite itself, became a public space where visions of Palestinian society were articulated and underlying conflicts exposed.. A strong sense that the parliament had posed a challenge to the Islamist social vision, which Palestinian nationalist factions had failed to mount, propelled a number of progressive activists into the arena. 

 

From the standpoint of the Palestinian Authority, however, it was less the Islamist vision than their power and strategy  that caused concern.  In this view, the attack on the women’s movement was a smokescreen attacking the Authority itself, via the women’s movement, by associating it with the immorality of the West.  In the closing model parliament session in the West Bank town of Ramallah, the assembly waited until the district governor arrived to open the session with a message from President Yasser Arafat.  The governor gave a statement upholding freedom of thought and expression as crucial to Palestinian democracy  and affirmed the President’s support for women’s rights and legal reform “as  long as they do not contradict shari`a.” a direct reiteration of the ambiguous endorsment of the  1994 Women’s Charter.

 

Final Session: Yes to Freedom of Expression, Gender Agendas Subsumed

 

In the final session of the model parliament in Gaza, the invited representatives of seven political parties (including  a smaller Islamist group, the Islamic Jihad, but excluding Hamas), gave opening solidarity statements.  (Hammami and Johnson 1999, 335) The parliament thus assumed the stature of a nationalist event. Almost every speaker affirmed the important role of women in the national struggle, as well as the right of free speech as fundamental to the nationalist project. Typically, women’s rights were linked to the modernist and nationalist project of state building. Nationalism was also evoked as a justification for legal reform, including personal status laws:  the laws in force were repeatedly described as “foreign” and imposed by occupying powers.  When it came to the specifics of reform, however, most of the political leaders were either vague or somewhat conservative in their focus and recommendations.

 

However, in the deliberations of the parliament itself, the final session itself successfully addressed a range of personal status issues. One of the women’s movements consistent demands - raising the marriage age to 18 for both men and women - passed easily, and, as the survey undertaken for this project shows, is a demand with popular support. Early marriage is increasingly  seen as a problem in Palestinian society, with  25% of females in a 1994 court record sample marrying at 16 or under (Welchman, 1999, 36). The prohibition of polygyny, on the other hand, passed by a narrow margin of 42 for, 32 against, and 5 abstentions.   A number of other useful recommendations, such as increasing women’s rights in child custody and divorce and protecting her rights to dower and inheritance were also offered in the Gaza session (Al Ayyam, 28 April 1998, 5).

 

None of these achievements were noted in the final declaration of the parliament, which emphasizes the nationalist and democratic character of the forum it had created,  beginning, ”We women and men who had the opportunity to participate … in a democratic Palestinian platform…” and goes on to simply list the areas of legislation reviewed before quoting in full the equality provisions of the Palestinian Declaration of Independence. The declaration ends with the slogans: “We will continue our struggle for democracy.  Yes to freedom of expression.  No to the repression of thought. Our slogan is:  Equality is our path to Building and Progress.”  The statement thus avoided the questions that the women’s movement and other activists for legal reform would face in the next period:  what was a viable platform for family law built on gender equality and  what is the approach to, and role of,  Islamic law in this initiative?  Can gender equality be addressed, in President Arafat’s words, “without contradicting shari`a? “  And crucially, does either state or society offer allies and opportunities to meet the needs, interests and rights of Palestinian men, women and children in a new Palestinian family law?

 

 

Towards a New Family Law:  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 be 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 Qadi al Quda welcomed a “women’s subcommittee” in one his public statements. 

 

These official initiatives spurred model parliament organizers to consider a process to draft a unified Palestinian family law themselves  based on the painstaking process of applying the equality argument to existing legislation and the subsequent recommendations of the model parliament.   Organizers recognized the possibility of new democratic allies, particularly from the political parties and human rights organizations, but also did not want to ignite another public debate before the initiative and the women’s movement was fully prepared.  The conditional  support of the Authority was another factor to be taken into consideration.

 

Divides and Compromises

 

A low-key strategy emerged to develop a declaration of principles and issues for discussion for a new Palestinian family law that would first be presented to allies in political parties, human rights organizations and other non-governmental organizations.  The aim was the formation of a national committee for a new Palestinian family law to lobby the Palestinian Legislative Council and other relevant parties.   A preparatory committee of women’s organizations who participated in the model parliament began work on these documents in the summer of 1998 and almost immediately ran into problems agreeing both on the general approach and the specific principles.  There were a number of fissures between women’s organizations, including differences between the West Bank and Gaza, but there were two main strategic divides.  The first, between legal reform towards civil law and reform within shari`a is familiar from other contexts.   The second  is more specific to the Palestinian context, but has resonance elsewhere:  between an approach which can be crudely characterized as “NGO,” where legal reform is a project with a number of specific activities, and an alternative approach which can be equally crudely characterized as “political,” which sees legal reform embedded in political (and social) processes.

 

The working out of the first division is embodied in a document prepared in February 2000, but not, at the time of this writing, presented as widely as had originally been planned, largely as a result of the circumstances of the new intifada which has both hampered physical movement for purposes of consultation, meetings etc, and directed intellectual and social energies towards other priorities. The document is an interesting  compromise that contains elements of both approaches, well-illustrated by its citation of principles of respect for human dignity and non-discrimination between the sexes as confirmed by “divine scriptures and covenants and declarations of human rights.”  During the attack on the model parliament, the women’s movement’s counter-defence to the Islamists had been to ground its equality argument in the language of nationalism and national resistance to occupation  state-building, and democracy.  This approach informs the introduction  and conclusion of the draft document of principles  which begins by citing the political conditions of the Palestinian people, characterized by the “absence of sovereignty over land from the days of occupation until now,” resulting in conflicting laws that do not meet the needs of Palestinian society.

 

In an interesting point, the document notes that family law is the most controversial and subject to discussion of all the laws given that it touches on family relations and is embedded in the culture of the society and therefore requires the “efforts of the whole society to develop a Palestinian family law built on equality between the sexes.”  The point that conflicts over family law mean that more, not less, democratic participation is required is a rather neat rejoinder to the religious establishment’s appropriation of shari’a  and family law as its sole province.

 

Democratic Families, Democratic Society

 

There is a new stress on democratic family relations as the foundation of a democratic society, with the legal philosophy of  a new family law proposed as  “democratic relations inside the family and the right of participation in decision-making to all individuals within it without discrimination as the foundation and safeguard of a democratic society.”  Here, members in the family are cast as citizens, while the family itself is projected as a microcosm of society.  This philosophy is followed by three basic principles which also address both family and societal imperatives: 1) equality and non-discrimination  on the basis of sex, race, disability, religion or position (echoing the Basic Law);  2) the rule of law, the separation of powers, and the independence of the judiciary; and 3) the full participation of husband and wife in family life.

 

Sources and Issues for a New Family Law

 

Sources for the family law are headed by the Palestinian Declaration of Independence and the Basic Law.  Third in line is a formulation that reads “Goals (intentions) of Islamic shari`a and tolerance for the divine religions.”  Here, the drafters amend the Basic Law formulation, replacing the word “principles” (mabadi’) with the word “goals” or “intentions” (maqasid),  probably in order to focus on the general intentions of shari’a to provide justice and equality for all humans.  A number of international covenants and declarations, including the Universal Declaration of Human Rights and CEDAW are then cited.

 

The document also notes a number of key issues and principles, including women’s rights as human rights, equality and democracy in the family, and interestingly, the  consideration of “domestic work as productive work.”   Rationales for a new Palestinian family law include ending the separation between the West Bank and Gaza,  the establishment of the Authority and the Palestinian Legislative Council and the “historic role in the national struggle” of Palestinian women, including  their sacrifice as martyrs, deportees and prisoners, which challenge the traditional and conservative view of the role of women.

 

Elements of a New Family Law

 

A separate document addresses the proposed elements of a Palestinian family law and here,  differences arose over a number of issues, principally in formulations on polygamy and inheritance.  Points where agreement was reached include the following, which are abbreviated from the text:

 

·         the full participation of husband and wife in the family as reflected in a marriage contract between two equal parties in rights and obligations;

·         the right of women inside the family to self-determination and to be her own guardian after legal majority, which is 18 years of age;

·          minimum age of marriage for men and women at 18;

·          divorce as a judicial prceeding only and in the presence of the two parties;  divorce to be initiated at the request of either party;

·          establishing a maintenance fund (sunduq nafaqa) and alimony in the case of arbitary divorce;

·          guaranteeing equality between men and women when marriage ends, including in custody and guardianship of children and division of property and wealth from the period of married life on the consideration that women’s work at home and in childrearing is productive;

·         joint responsibility in the maintenance of the family and children.

 

In the last point, the document gives a basis for a new gender contract, as it does in the first point where the actual marriage contract is seen as “between two equal parties in rights and obligations.”  The problem of addressing the material interests of women in specific situations, however, is raised in the point establishing a maintenance fund, which would seemingly contradict the notion of joint maintenance.  The document thus adopts a pluralistic approach, which needs more articulation to serve as an effective strategy.

 

A point calling for an end to the practice of polygyny because it diminishes the dignity of women and causes discord in the family proved controversial and  required a note to the effect that committee members disagreed, with some advocating a total ban on polygyny and others supporting its restriction. The note also recorded disagreement on the principle of gender equality in inheritance entitlements.

 

The difficulties in reaching agreement on a text inside the preparatory committee, which was constituted from the women’s movement itself, suggests the importance of exploring  the second, more implicit, contradiction, between legal reform as a NGO project or as a political process.   Here, the experience of the model parliament underlines that advocating gender-equitable family law reform in the Palestinian context – as is probably the case in the Arab and Muslim world in general – is far too complicated to be contained with a project framework carried out by one or more women’s or other non-governmental organizations, and requires a wide process of democratic participation.

 

The chapter also attempts to compare the Palestinian experience with legal reform initiatives by women’s movement, states  and other parties in Algeria,  Egypt and Yemen.   While noting significant differences in the Palestinian context, regional approaches have certain commonalities in legal history, socio-cultural context, and shared political exigencies with Palestine.  Both the Palestinian interest in the progress and passage of the new Egyptian law (of January 2000) and the cautionary references made by Palestinian women activists to the Algerian experience attest to the importance of regional contexts.   The chapter reviews the three comparative examples and notes the  differential role of state and civil society groups in the promulgation and content of family laws, although the role of the political leadership in formulating content  has tended to be primary, with the partial  exception of the recent Egyptian example.  Advocacy for legal reform in Palestine has lessons to learn from regional experience,  particularly in developing democratic approaches and processes to formulating an egalitarian family law in the Palestinian context.

.  Chapter 5

Conclusions:  Strategies and Issues for Action

 

 

The experience of the transitional period to statehood in Palestinian society has been both rich and complicated, and perhaps particularly so in the area that we have chosen to scrutinize:  agendas, constraints and opportunities for legal reform of shari`a- based family law. While no major reforms were enacted in this period,   the contending and cooperating actors have developed strategies, built alliances, and positioned themselves for the next phase of statehood.  From one standpoint, the political field seems monopolized by an emerging state seeking legitimation within near crippling constraints and denial of basic rights, with  its major internal challenge coming from a populist Islamist opposition.  From another, social movements, including the women’s movement,  pose an alternative democratic challenge and both seek to advance Palestinian rights vis à vis the continuing Israeli occupation and denial of rights,  advocate with the Palestinian Authority as a  “set of arenas” for the rule of law, legal reform,   and fair and effective social and economic policies, and to mobilize protest at abuses of power. In addition, the religious establishment has  (partially) integrated itself with the emerging state, built new institutions  and strengthened existing ones (the shari`a court system),  as well as issuing  some important  new regulations.

 

In posing strategic questions and issues for action, the researchers are attempting to learn from this rich and complicated history, drawing in particular from the activism and ongoing strategic discussions and debates by the women’s movement and its allies, rather than issuing recommendations.   Indeed, the researchers – and the Institute of Women’s Studies at Birzeit University – are positioned within the women’s movement  and within the Palestinian national context and share  in the dilemmas and insights of both.  

 

It is also true that the more profound the strategic issue identified, the more difficult the strategic response.  We are in fact bringing to bear the specificity of the Palestinian context on a range of issues that have been – and are – present in the Arab women’s movements through the twentieth century and into the twenty-first.  The history and legacy of colonialism, the crises in the patriarchial order and gender roles,  and the search for legitimation by weak, paternal and authoritarian states are enduring features of the landscape for much of the last century.  As Thompson notes in an important new study of gender and citizenship in Syria and Lebanon in the Mandate era, gender became a “site of compromise and conflict” (Thompson  2000, 4) among male actors in the civic order, the stability of which was often ensured by “gender bargains” or “pacts” at the expense of women’s rights.

 

We thus need to pay detailed attention to how these dynamics are constituted in the Palestinian case which offers particular constraints and opportunities, as a comparative perspective also shows that  Islam and Islamic law  are not ahistorical, but rather are shaped by specific political, social and economic circumstances.  In our analysis of the recent transitional phase in Palestinian society, we would like to draw attention to the following strategic issues for discussion:

 

 

·         The conditions of Palestinian state formation offer many constraints, but also some opportunities for gender-aware legal reform of family law. The multi-dimensional  strategy pursued by social movements during the transitional phase – national resistance, government advocacy and mobilization for protest – is an important  framework for maximizing opportunities in the next phase of state-building (where national resistance will remain  in the search to advance national rights, for example of refugee populations and over land and water).

·          However, the weak and authoritarian nature of the emerging state and the clear search for legitimation through affirmation of its commitment to Islam and shari`a, among other factors, means that a top-down strategy for legal reform (as originally in the case of Tunisia) is probably neither viable nor desirable.

·          Instead, a  wide democratic alliance is the most likely vehicle to ensure that gender agendas for reform are not isolated (and thus opposed as attacks on cultural identity) but instead positioned within citizen’s rights a whole.

·          Countering claims of its inauthenticity, the women’s movement should not only continue to press its national claims --  based on women’s participation and sacrifice in the national struggle – but actively develop a counter-authenticity of Palestinian identity rooted in commitment to the needs and interests of the marginalized groups,  including poor women, whose needs may differ from those of professional and middle-class women who dominate the women’s movement.  We have noted, for example, the issue of maintenance, but there are a number of other issues (including nationalist issues such as  prisoners, refugees and settlements) that differentially affect poor and middle-class women.

·         The latter point crucially addresses the opportunity to avoid a class-gender divide that has been an unfortunate feature in the history of Arab women’s movements, where the women’s movements, often despite themselves, have been isolated as elites, while the needs and interests of poor and working people have been taken as the ground for other movements, including Islamic populism.  The past history of the Palestinian women’s movement and its links to women in various settings give it an opportunity to avoid this divide.  In the context of legal reform, this means vigorous campaigns to not only listen to women in various settings, but to incorporate their needs  and social and economic interests into legal reform frameworks.  In a small way,  this study attempted to do so, by incorporating a study of the Hebron factory fire into its research, with the aim of  publishing this study locally for advocacy for safe working conditions, rights and protection, as well as adequate compensation within public and shari`a-based legal frameworks.

·          Recognizing the need for protection of Palestinian families in the specific context of the insecurity and conflict of the past fifty years and the absence of both physical and social protection is an important complement to the discourse of rights.  Recognizing the importance families have played in national and individual survival also means developing legal reform in this context, perhaps with a dual emphasis on social protection through the institution of social security and strengthening democratic families.

·         The framework of the Palestinian national movement  also offers greater opportunities for links between the women’s movement and Islamic women’s groups and dialogue between secular and religious women (which are two different but related activities).

·    As the findings of various attitudinal surveys suggest, the majority of the population does support some type of legal reform, as long as it remains within the framework of shari`a. The meaning of this support requires much more discussion, and it is quite important to encourage a pluralism of views and defend the legitimacy of those who advocate legal reform towards civil law.. However, given the radically different systems of family law that have developed under the rubric of shari`a, it is clearly useful  to explore how to expand the principles of religious legal reasoning and legitimacy in the local context.

           

·    However, the specific principles of reform, while tending towards expanding women’s entitlements, are also marked by a host of conflicting values and interests. For instance, commitments to social equality and justice (framed in the nationalist sentiment of equality and rights) co-exist with strong impulses towards preservation of the family and masculine authority within it. Similarly, contradictory attitudes exist towards the issue of legal authority. On the one hand, support is professed for the expansion of religious authority into wider arenas of life, which coexists with the preference that “the people” vote to decide on what the letter of religious law should be. The point here is that these contradictory values do not represent discrete contending social groups – but are multiple and contradictory stances within the same individuals and ultimately the population as a whole.  As such, a successful legal reform strategy cannot base itself on only one underlying principle (such as equality) without addressing the other multiple and countervailing values with which it coexists.

 

 

The issues and strategic directions outlined above may also resonate  in comparative contexts, certainly across the Arab world, but perhaps in other states with systems of Islamic law.   In the Palestinian context, they are offered as a partial analysis for action built very much on the wisdom and experience of social movements here, and particularly the women’s movement.  In the next period of statehood,  there will be the enactment of at least a temporary constitution, setting the broad framework for new legislation, and almost certainly a state-directed initiative under the aegis of the religious establishment to unify personal status law between the West Bank and Gaza.  The women’s movement, and other social movements, has developed strategies and initiatives to influence the latter, requiring a widening of alliances and building and mobilizing constituencies.  This is necessarily a political process,  and perhaps a lengthy one.  However, without it, no series of projects, however useful, will be able to engage positively with the new, sweeping developments, conflicts and dynamics of Palestinian state and society for legal reform based both on gender equality and on the real interests and needs of the majority of women, men and families in Palestinian society.

 

 

 

 

 

 

 

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