Establishment of the Shari‘a Court in West Jerusalem

Chapter 4
Establishment of the Shari‘a Court in West Jerusalem

Periodization and framing, of course, are key features of any historical narrative. The story of the Israeli shari‘a court in West Jerusalem as I choose to tell it, begins 30 years before its establishment, and involves complex and multi-faceted relations with several other legal institutions. Of these institutions, the most important one, undoubtedly, is a shari‘a court run by the Jordanian Ministry of Awqaf, that continues to operate in East Jerusalem until this very day. The ongoing interrelations between the Israeli and the Jordanian shari‘a courts will be examined more systematically in Chapter 12. Here I will discuss how the very fact that a “foreign” shari‘a court was functioning in occupied East Jerusalem, played a major role in the decision to establish a rival Israeli court in West Jerusalem.

Our story begins in 1947. The United Nations Partition Plan of 1947 provided for the establishment of separate Arab and Jewish States in what was Mandatory Palestine. Jerusalem was to be administered by a Trusteeship Council as a Corpus Separandum—an international zone under the supervision of the UN (Cattan 1981: 7–9, Mazzawi 1997: 239–47). Nevertheless, when the 1948 War ended, the Jewish state had managed to gain territories beyond those assigned to it in the Partition Plan; the Arab state was not established at all; and the rest of Mandatory Palestine, which was not taken over by the Jewish state, was captured by Jordan (the “West Bank”) and Egypt (the Gaza Strip). The armistice agreement between Israel and Jordan signed in April 1949 divided Jerusalem between the two states: the Western part was to be controlled by Israel, and the Eastern part (the Old City) by Jordan.

West Jerusalem was almost exclusively Jewish, with only several thousand Arabs who remained under Israeli control, dwelling in several urban neighborhoods (e.g. Beit Safafa) and in some semi-urban villages (e.g. Abu Gosh).1 Jerusalem was declared the “eternal capital” of the Jewish state, and Israel was anxious to establish in the city as many state and government institutions as possible. As mentioned in Chapter 2, a shari‘a court of appeal was established in Jerusalem in 1953. However, a first instance court was not established, and the West Jerusalemite Muslims came thus under the jurisdiction of the Jaffa shari‘a court (some 40 miles away from Jerusalem).

At the same time, Jordan was enacting Jordanian law in East Jerusalem and the West Bank. In April 1950 the Jordanian Assembly passed a resolution that formally unified the two banks of the Jordan River into one state, the Hashemite Kingdom of Jordan. The integration of the two banks did not receive international recognition, but it was nevertheless enacted by the Jordanian government.2 Palestinian residents of the West Bank and East Jerusalem thus came under Jordanian Law. They were also granted Jordanian citizenship, and (some) representation in parliament and government institutions.

Jordanian control over the West Bank and East Jerusalem was by no means unproblematic. The Hashemite Kingdom had to deal with a nationalist Palestinian opposition that saw the Hashemites as an occupying force, guilty—until proven innocent—of secret cooperation with the hated Zionist enemy (see Shlaim 1990: 432–4). Nonetheless, the devastation of Palestinian civil society following the nakba, the departure of large segments of the local Palestinian leadership, and the fear of further expansion of the Zionist state into the West Bank territories—all these factors resulted in a weakening of Palestinian opposition to Hashemite rule. A systematic policy of placing supporters in vital power positions, and at the same time replacing and distancing opponents (mainly the Hussaynis),3 enabled King Abdullah of Jordan to secure his rule in the West Bank (see Wilson 1987: 244–8).

The Jordanian regime established civil or statute courts (mahakim nizamiyya) and religious courts (mahakim shar‘iyya) in the West Bank.4 The shari‘a courts retained their jurisdiction over personal status matters of Muslims, but did not regain any of their residual jurisdiction of Ottoman times. Qadis in the shari‘a courts were appointed by the Jordanian Chief Islamic Justice (Qadi al-Quda), and the courts themselves were operating under the administration of the Ministry of Religious Endowments (Awqaf) in Amman. The courts were to apply the Jordanian Law of Family Rights (promulgated in 1951), which was modeled after the OLFR of 1917, but incorporated some reforms of Egyptian origin, and some provisions of indigenous inspiration. In procedural issues as well, the Jordanian Law of Shar‘i Procedure (1959) remained quite close to the Ottoman Law of Procedure of Shari‘a Courts (Welchman 2000: 50).

Shari‘a courts of appeal were convened at first in both Amman and East Jerusalem, but in 1951 a law was passed providing for a single shari‘a court of appeal located in Amman. A specific article of this law, however, provided that the shari‘a court of appeal may convene in East Jerusalem as well, if the need arises (Welchman 1990: 108). Under Jordanian rule, Jerusalem thus lost the permanent seat of the shari‘a court of appeal, which had been situated in the city since the beginning of the British Mandate. Yet, a shari‘a court of first instance was founded in East Jerusalem. This shari‘a court served, in addition to the Muslim population of Jerusalem, some 20 neighboring villages (see Reiter 1997b: 11–13).

Such was the situation between 1948 and 1967: Jerusalem was physically divided into a Jordanian and an Israeli city; in the Western, Israeli city, a shari‘a court of appeal was operating since 1953, but there was no shari‘a court of first instance. The shari‘a court of appeal was applying Ottoman codes, British regulations, and Israeli civil legislation. By contrast, a shari‘a court of first instance was operating in the Eastern, Jordanian, part of the city, but there was no shari‘a court of appeal. The court of first instance was applying Jordanian codes of family law and procedure.

The situation changed abruptly in the wake of the 1967 War. A few weeks after the end of the war, the Knesset passed a governmental amendment bill, Law and Administration Ordinance (Amendment No. 11) Law (5727–1967), that enabled the extension of the laws, the jurisdiction and the administration of the State of Israel to any area of “Eretz Israel” (Land of Israel), as designated by the government order. This amendment, together with Municipalities Ordinance (Amendment No. 6) Law (5727–1967), facilitated in effect the annexation of East Jerusalem, and the unification of Jerusalem under Israeli rule. Indeed, one day later, on June 28, 1967, the Israeli Minister of Interior issued an ordinance extending the municipal boundaries of West Jerusalem to include the former Jordanian city, as well as several villages on the outskirts of Jerusalem (Brecher 1978: 25–6). Israeli law was extended to the annexed area,5 and the Palestinian residents of this area—a population of approximately 70,0006—were granted the legal status of “permanent residents” in Israel.7

Immediately after the occupation and annexation of the city, Israeli authorities (both military and civil authorities) began to negotiate with the Palestinian leadership in East Jerusalem, in order to achieve their cooperation with the new political order imposed by Israel. Nevertheless, local Palestinian leaders were afraid that cooperation with the Israeli occupiers—even in municipal issues—might legitimize the occupation, and therefore abstained from accepting any of the Israeli moves (see Farhi 1979: 6, Reiter 1997b: 6–7).

The first organized act of resistance to the occupation took place on July 24, 1967, a month and a half after the war had ended. A group of some twenty prominent Muslim personalities founded a body called “The Islamic Board” (al-Hay’a al-Islamiyya).8

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