RELIGIOUS LAW IN A SECULAR STATE: THE JURISDICTION OF THE SHARI'A COURTS OF PALESTINE AND

Zeina Ghandour* LLB (Hons.),LLM

INTRODUCTION

This article's aims consist of assessing the position of divinely revealed law in a terri- tory the history of which has spun full circle. The political organisation of Palestine as part of the Ottoman Empire, moulded and adapted by the British Mandatory admin- istrators, and culminating in Israel's formation, have all contributed to the legal, pol- itical and social substructures currently existing. The politico-legal history of Palestine and Israel is unique precisely because of the religious dimension, providing as it does a justification for each respective ruler. The perpetually swaying emphasis placed on religion in general, and on religious law in particular, reflected in the political climate of the day, will be examined. For both Islam and Judaism purport to contain within their tenets self-sufficient legal systems, capable of functioning autonomously, and covering every aspect of public and pri- vate life. Both religions uphold their divinely revealed law as immutable, and yet, for practical purposes, susceptible to interpretation by human bodies properly versed in the Koran and the Torah. The legitimacy of claims by Islam and Judaism regarding the all-encompassing coherence and adaptability of the respective legal systems to the modern-day State are beyond the reach of this article. Rather, we shall look at the indisputably inviolable core of both Islam and Judaism: the law of personal status, in which succession shall be included. Family law constitutes the heart of the two reli- gions, almost representing another facet of worship or ritual law. So deeply rooted is it in culture and national identity that it is even observed by the otherwise religiously non-observant. This article is thus devoted to the application of Islamic family law in Palestine and Israel, including the jurisdiction enjoyed by the Islamic law (Shari'a) courts. It attempts to draw conclusions from the degree of correlation between judicial and pol- itical autonomy in the Muslim community under the Ottoman Muslims, the British Christian-secularists and the Israeli Jews. The first part examines the activities surrounding the establishment of the Supreme Muslim Council, which evolved from a purely administrative to a largely political organisation, and which effectively oversaw the Shan-`a courts. Israeli interference with Muslim personal status law is examined, and conclusions drawn from the non- adherence to, and avoidance of, Israeli statutes by leaders of the community. The * Thisarticle is basedon a dissertationfor the LLMin Jewishand Islamic Law at Kent Universityunder the supervisionof ProfessorB.S. Jackson.The titleof the dissertationwas: "Religious Law in a Secular State:The Jurisdictionof the Sharia and RabbinicalCourts of Palestineand Israel". 26 second part deals with the conflicts of jurisdiction and of law resulting from political turmoil on the West Bank of the , and Jordan's legal attachment to the Shari'a courts of East and the rest of the territory known as Israel. It also risks a brief survey into the future practical legislative relevance of the Palestine National Council. The third part is devoted entirely to the community of Israel-for two reasons: first because Israel has recognised them as a religious community separate from the Muslims, granting them their own religious courts; and second because com- pared with their Muslim brethren, they are, on the surface, curiously willing to inte- grate in Israeli life. Part four is an attempt at surveying the inconsistency and confusion resulting from the legacy of the Ottoman relic with regard to succession law. It also portrays the Islamic community's persistence in by-passing secular law, and Israel's reactions thereto.

I. FROM THE BRITISH TO ISRAEL: THE AUTHORITY VESTED IN THE SHARI'A COURTS

(a) (i) The Mandate After the First World War, the League of Nations Trusteeship gave Palestine and Iraq-which had formerly been controlled by Egypt-to Britain. Before 1917, Pales- tine had been governed by Ottoman Laws. The British retained the latter but changed parts of them, particularly with regard to commercial and land law. The Ottoman system was thereby retained, within which persons of different religions could be governed by their own law, provided they submitted to the authorities and paid taxes. Religious family law was retained. During the Mandatory period (1920-1948), an Anglo-Palestinian version of the Millet system (a term formerly used to connote the organisation of non-Muslim com- munities) was adopted. It is during this period that the JEWISH AGENCY and the SUPREME MUSLIM COUNCIL were set up with a view to organise and strengthen their communities. They were, in effect, granted the status of parallel governments to the Mandate: Under these circumstancesthe Supreme Muslim Council, set up by the British Governmentfor the administration of Muslim religious affairs, evolved into what was to be for almost two I decades the most powerful political body in the PalestinianArab community

(ii) The Order Establishing the Supreme Muslim Council 19211 The jurisdiction of the Shari'a courts was, to a certain degree, interfered with by the British Mandate, at least in relation to the lack of control exercised by the colonial power elsewhere: for example in British India, Anglo-Muhammadan law was the result of substantive and formalistic adaptation of Islamic law to English norms.

' U.M. Kuperfershmidt,"The SupremeMuslim Council" (E.J. Brill,1987), p. 5.