Palestine/Palestinian Territories of West Bank and Gaza Strip


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

The Palestinian territories of the West Bank, including East Jerusalem, and Gaza Strip are that part of Palestine not included in the territory on which the state of Israel was established in 1948. Shared history of Ottoman law and custom, and British Mandate legislation along with shari`a and customary rules. From 1948-1967 the West Bank including East Jerusalem was ruled by Jordan, while the Gaza Strip was administered by Egypt. After 1967 Israeli military orders regulated large areas of life for Palestinians in both the West Bank and Gaza Strip while Israel purported to illegally annex the territory of East Jerusalem. Since the 'Oslo Accords' set the framework of the PLO-Israel peace process, the unification of the legal systems of the West Bank and Gaza Strip has been on the agenda of the Palestinian Authority established in the West Bank and Gaza Strip under those agreements. Currently Jordanian law governs personal status for Muslims in the West Bank; East Jerusalem Muslims have recourse either to that law or to the law applied in the Israeli shari`a system, following the unrecognised annexation of East Jerusalem, and in that forum are subject also to Israeli law applicable to personal status matters; and Gazan Muslims are governed by personal status law issued during Egyptian administration of the Strip. Some regulations have been issued since the 1994 Oslo Accords by the Palestinian Qadi al-Quda, which are applied in both areas. The most appropriate opinion of the Hanafi school is the residual law in Muslim personal status matters in both areas. Recognised Christian communities apply their own personal status laws in their own tribunals.

School(s) of Fiqh

Hanafi majority with significant Christian minorities; Jewish settlers in the area come under Israeli civil jurisdiction

Constitutional Status of Islam(ic Law)

The draft Basic Law for the transitional period (not yet ratified by Yasser Arafat) under the Palestinian National Authority provides that "the principles of Islamic shari`a are a principal source of legislation" (Art. 4/2) and that "matters of personal status are to be dealt with by shari`a and religious courts" (Art.92/1).

Court System

Regular courts including magistrates' and first instance courts with High Courts with appellent jurisdiction for civil and criminal matters. Complexities in unifying courts and laws in the two areas one of major tasks facing PA. Shari`a courts in both areas apply personal status law, using regular system's execution offices; shari`a court of appeal established under the PA sitting for the moment in Nablus, with Jordan maintaining direction of shari`a first instance and appeal court in East Jerusalem; also shari`a appeal court in Gaza now under PA jurisdiction.

Relevant Legislation

Jordanian Law of Personal Status 1976 (West Bank)

Jordanian Law of Shari`a Court Procedure no.31 1959 (West Bank)

Law of Family Rights 1954 (Gaza Strip)

Law of Shari`a Court Procedure no.12.1965 (Gaza Strip)

Law no.13/1962 on the Obligatory Bequest (Gaza Strip)

Law no.1/1965 on the application of the shari`a rules to miri property (Gaza Strip)

Law no. 4/1991 on the application of the shari`a rules to miri property (West Bank)

Administrative decision no. 78/1995 of the Qadi al-Quda (on the age of marriage- Gaza Strip)

Notable Features

Marriage Age:

West Bank - 15 female, 16 male under the JLPS; Gaza Strip- LFR 1954 required puberty and made 9 (female) and 12 (male) minimum ages; Palestinian Qadi al-Quda issued administrative decision in 1995 raising these to 15 female and 16 male. All ages by lunar years.

Marriage Guardianship: West Bank- see under Jordan. and in practice consent of guardian registered in nearly every marriage; Gaza Strip- In Gaza the LFR assumes guardian gives consent and that where there is no guardian, the qadi exercises guardianship in marriage.

Marriage Registration: West Bank- see under Jordan. obligatory and penal sanctions in criminal law but failure to register does not invalidate the marriage; similarly in Gaza.

Polygamy: governed by classical law. Both laws specifically permit a woman to stipulate in contract that husband will not take another wife while married to her and to petition for divorce on the basis of this stipulation if he proceeds to break the terms of the stipulation. (Muslim Palestinians in East Jerusalem cannot marry polygamously under the terms of Israeli law).

Obedience/Maintenance: classical law. West Bank- see under Jordan. Stipulations are explicitly allowed in West Bank under JLPS, but not frequently used. LFR in Gaza refers only to stipulations regarding a polygamous marriage (in terms similar to OLFR) and to delegation of divorce.

Talaq: West Bank- see under Jordan. Gaza Strip-standard reforms to Hanafi rules as implemented in Egypt in 1920's, reducing effect of many forms of triple talaq to a single revocable and denying effect to others (eg those spoken as an oath). Extra-judicial talaq valid but registration is mandatory.

Judicial Divorce: West Bank- see under Jordan. Gaza Strip- the same, except that women may petition for divorce on the grounds of injury and does not allow the husband to petition on grounds of 'discord and strife'.

Post-Divorce Maintenance/Financial Arrangements: West Bank- see under Jordan. Gaza Strip: classical rules, no compensation for arbitrary talaq and no arrears pre-dating submission of the maintenance claim.

Child Custody and Guardianship: West Bank- see under Jordan; Gaza Strip- classical Hanafi rules allowing limited extension of mother's custody of girl up to eleven years and boy up to nine.

Succession: West Bank- see under Jordan; Gaza Strip- obligatory bequest benefits grandchildren through predeceased daughters as well as sons of propositus, as in Egypt; shari`a rules re-applied to miri property in Gaza as well as in the West Bank.

Law/Case Reporting System

Palestinian Official Gazette (al-waqa'i` al-falastiniyya)

International Conventions (with Relevant Reservations)

Not yet having gained formal international recognition as a state, Palestine is not yet able to ratify international human rights instruments.

Legal History:

The Palestinian territories of the West Bank, including East Jerusalem, and the Gaza Strip are that part of Palestine not included in the territory on which the state of Israel was established in 1948. Legally the territories share a history of Ottoman law and custom, and British Mandate legislation along with shari`a and customary rules. From 1948-1967 the West Bank including East Jerusalem was ruled by Jordan while the Gaza Strip was administered by Egypt.

After 1967 Israeli military orders regulated large areas of life for Palestinians in both the West Bank and Gaza Strip while Israel purported to illegally annex the territory of East Jerusalem. Since the bilateral PLO-Israeli 'Oslo Accords' set the framework of the current peace process, the unification of laws in the two areas has been on the agenda of the Palestine national Authority established under the terms of the agreements. Currently Jordanian law governs personal status for Muslims in the West Bank; East Jerusalem Muslims have recourse either to that law or to the law applied in the Israeli shari`a system, which comprises the Ottoman Law of Family Rights as amended by Israeli legislation since 1948; and Gazan Muslims are governed by personal status law issued during the Egyptian administration of the Strip.

Some regulations have been issued since the 1994 Oslo Accords by the Palestinian Qadi al-Quda, which are applied in both areas. The most appropriate opinion of the Hanafi school is the residual law in Muslim personal status matters in both areas. Recognised Christian communities apply their own personal status laws in their own tribunals. Work is reported to be proceeding on the text of a Palestinian personal status law, a matter of substantial interest in different sectors of Palestinian civil society.

Schools of Fiqh: The Hanafi school is the predominant madhhab in Palestine, as well as in Jordan and Egypt, the states whose legislation continues to govern personal status in the West Bank and Gaza, respectively.

Constitutional Status of Islam(ic Law): The draft Basic Law for the transitional period (which has not yet been ratified by Yasser Arafat, the President of the PNA) provides that "the principles of the Islamic shari`a are a principal source of legislation" (Art.4/2) and that "matters of personal status are to be dealt with by shari`a and religious courts" (Art.92/1).

Court System: Regular courts including magistrates' and first instance courts with High courts with appellate jurisdiction for civil and criminal matters. Complexities in unifying courts and laws in the two areas of the West Bank and Gaza Strip are one of the challenges facing the Palestinian Authority. The shari`a courts in both areas apply personal status law, using the execution offices in the regular court system. A shari`a court of appeal for the West Bank has been established under the PA which sits for the moment in Nablus, with Jordan maintaining direction of the shari`a first instance and appeal courts in East Jerusalem. The shari`a court of appeal in the Gaza Strip is also now under PA jurisdiction.

Notable Features: For the rules of Muslim personal status currently applicable in the West Bank see under Jordan. For Muslim Palestinians marrying under Israeli law in East Jerusalem see under Israel. In the Gaza Strip, the Egyptian-issued Law of Family Rights sets puberty as the minimum age of marriage with no marriage allowed of a female aged under 9 or a male aged under 12. The Palestinian Qadi al-Quda issued an administrative decision in 1995 raising these ages to a minimum of 15 for the female and 16 for the male, as in the Jordanian law. All ages are calculated according to the lunar calendar.

The LFR assumes that there is a guardian and that where there is not, the qadi acts as guardian for the woman in marriage. Marriage registration is mandatory but failure to register does not invalidate the marriage.

Polygamy is governed by classical law, but the woman is allowed to stipulate in the contract that the husband shall not take another wife while married to her, and may seek divorce if he subsequently breaks the terms of that stipulation.

The rules of maintenance and obedience are maintained in their classical form.

On talaq, standard reforms to the classical Hanafi rules, as implemented in Egypt in the 1920s, have been included in the LFR; extra-judicial talaq is valid but registration is obligatory. The same rules on judicial divorce apply as in the West Bank, except that a wife is entitled to petition for divorce on the grounds of injury, and a husband is not entitled to apply on grounds of 'discord and strife'.

There has been no amendment in the LFR to the classical Hanafi rules on post-divorce maintenance, or on arrears pre-dating submission of the maintenance claim.

Law/Case Reporting System: Palestinian Official Gazette

International Conventions (with Relevant Reservations): N/A (until statehood is formally recognised and implemented, Palestine cannot become a state party to international instruments).

Background and Sources: El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; Welchman, "Family Law under Occupation: Islamic Law and the Shari'a Courts of the West Bank," in Islamic Family Law, Mallat & Connors, eds., London, 1990; Welchman, Islamic Family Law: Text and Practice in Palestine, Jerusalem (WCLAC) 1999.