Forum Shopping between Shari‘a Courts

Chapter 13
Forum Shopping between Shari‘a Courts

As we have seen, a complex system of interdependency has developed in recent years between the three shari‘a courts operating in Jerusalem. These relations find expression in close interactions between these courts, on a daily basis and across various domains. The most salient encounter between these courts undoubtedly occurs in the domain of registered deeds (e.g. marriage and divorce certificates and inheritance deeds).

The different and asymmetric policies of the three courts with regard to the mutual recognition of registered deeds naturally create a strong incentive to appeal first to the Jordanian or Palestinian courts, and only later to the Israeli court. The logic is simple: if registered deeds issued by more than one court are needed, and if court A routinely recognizes the deeds issued by court B and C, whereas the latter courts refuse to recognize the deeds issued by court A—it makes sense to appeal first to courts B or C, and only later to court A for a recognition of the deeds issued by courts B or C. Indeed, this is exactly what happens in Jerusalem: about half of the files in the Israeli shari‘a court in West Jerusalem are actually requests for the recognition of deeds registered by the Jordanian or the Palestinian shari‘a courts (see Figures 7.1 and 7.2).

Another reason for preferring Jordanian (or Palestinian) ma’adhuns is the significant differences in the material laws that are applied by the courts and by the ma’adhuns they appoint. Whereas the Jordanian Law of personal Status of 1976 allows the marriage of a girl aged 15 to 17 and of a boy aged 16 to 18,1 Israeli legislation considers the marriage of minors (girls under 17; boys under 18) a criminal offence.2 In other words, while the Jordanian ma’adhuns are allowed to marry off minors aged 15 to 17 (girls) and 16 to 18 (boys), the Israeli ma’adhuns are not allowed to do this, and unless they want to risk criminal prosecution, they will certainly refrain from performing such marriages. In a similar vein, while the Israeli Knesset criminalized polygamy (see Chapter 3), the Jordanian law does not forbid it. Thus, a man who wishes to marry a second wife will surely register his polygamous marriage with a Jordanian ma’adhun, rather than with an Israeli one (who is anyhow likely to refuse registering such a marriage).

Indeed, the calculated choice of a ma’adhun for the purpose of performing and registering a marriage constitutes the most prevalent form of forum shopping in Jerusalem. Since the Israeli shari‘a court recognizes Jordanian and Palestinian marriage certificates, even in cases of clearly illegal acts (by the standards of Israeli statutory law—such as minor or polygamous marriages), the strategic maneuvering between the various legal systems usually proves worthwhile. In the past, when Israeli qadis encountered a case of minor or polygamous marriage, they used to recognize the marriage, but add a note to the file stating that a felony had been committed. They also used to send the file to the shari‘a courts administration for further handling.3 However, in recent years the Israeli shari‘a court of appeal has determined in several rulings that it is not for the shari‘a courts to make any notes or indications concerning violations of Knesset legislation. The shari‘a court of appeal stressed that the shari‘a courts are merely obliged to rule according to Islamic principles; and thus, as long as shari‘a rules have not been violated, any offence against “worldly” legislation is of no interest to these courts.4

Marriage and divorce certificates issued by a Jordanian or a Palestinian court are therefore recognized in Israeli shari‘a courts, even in cases of minor or polygamous marriages, or of unilateral repudiation of wives.5

Safeguarding the Rights of Orphaned Grandchildren

A more complicated situation arises in cases of inheritance deeds (hasr ’irth), as illustrated by the following example, an event that occurred in May 17, 2004: One afternoon, several hours after the hearings of that day had ended, I was sitting in the court secretariat, preparing (at the request of Abu Zayd, the acting chief secretary) some Hebrew summonses for prisoners who were requested to appear in court. The summonses were to be sent by fax to the Israeli Prison Authorities, and therefore had to be written in legible Hebrew.6 The court building was empty of litigants and lawyers, and even the typists had already left. Only Abu Zayd and Abu ‘Uday (Abu Zayd’s aide) were with me in the secretariat; also Qadi Zibdi was still there—working in his chambers. During my years of fieldwork in the Israeli shari‘a court in West Jerusalem, I have learnt to cherish such relaxed times, when I could chit-chat with Abu imageUday and Abu Zayd, or discuss with them interesting cases that I witnessed during the day.

As I was sitting there, Qadi Zibdi entered the room, sat down and started to discuss with Abu Zayd a dilemma that he had encountered earlier that day. He recounted that a family had come to the court, asking for the recognition of a certificate of inheritance (hasr ’irth) issued by the shari‘a court in Salah al-Din Street [viz. the Jordanian court in East Jerusalem]. He was about to recognize this deed as he always does, when he suddenly observed that orphaned grandchildren were also among the legatees. Qadi Zibdi explained:

It suddenly occurred to me that there is a difference between the Jordanian law of succession and our policy as determined by the judicial circular.7 Whereas the Jordanian law distinguishes between agnate grandchildren (awlad al-zuhur) and cognate grandchildren (awlad al-butun), here we do not differentiate between them. Now I have a problem, I cannot automatically recognize Jordanian inheritance deeds. I need to check first that no orphaned grandchildren are involved.

Qadi Zibdi and Abu Zayd then discussed the implications of this problem, and Qadi Zibdi asked Abu Zayd to survey all the bequest deeds that were recognized by the court during the years 2003 and 2004—to find out whether there were any other cases of this kind. Reluctantly,8 Abu Zayd agreed to do so, and Qadi Zibdi departed.

This example illustrates the complexity of the legal situation in Jerusalem, which often creates genuine problems and dilemmas. It also demonstrates that the qadis presiding in Israeli shari‘a courts are keener to sustain the reforms introduced by their own initiative (e.g. by the judicial circulars) than they are to sustain Israeli Knesset legislation. Thus, whereas the Israeli qadis are actively directed to disregard (and therefore to conceal) instances of offences against state law, they demonstrate considerable sensitivity to breaches of regulations set up by the judicial circulars,9 to the extent that Qadi Zibdi instructed the court secretariat to review hundreds of cases in order to see that no other mistakes had been made.

The event described here should be viewed, however, as it is: an exceptional occurrence that testifies to the norm. As a rule, the Israeli shari‘a court in Jerusalem tends to recognize legal documents issued by Jordanian or Palestinian courts. References to rulings or documents issued by these courts can be found in countless cases deliberated by the Israeli shari‘a court. To mention just two common examples: in many cases, power-of-attorney registrations (wikalat) are signed by qadis presiding in Palestinian or Jordanian courts (see e.g., ISC 746/2000, 1603/2001, 510/2003); and in some cases, Israeli qadis request the assistance of qadis officiating in shari‘a courts in the West Bank, and ask them to hear and validate the testimonies of witnesses who cannot come to the Israeli court in West Jerusalem due to travel restrictions (see e.g., ISC 1543/2001, 107/2004).

A Venue for Divorce, Another for Maintenance

It is also rather common that legal procedures in the Israeli shari‘a court in West Jerusalem come to an end after a Jordanian or a Palestinian court has achieved agreement between the disputants. In particular, a considerable number of “strife and discord” cases (niza‘ washiqaq) were deleted from the Israeli shari‘a court’s schedule following the issuance of a divorce certificate by either a Jordanian or a Palestinian shari‘a court.10 The following example may serve as an illustration.11

A middle-aged couple from one of the Arab neighborhoods inside the municipal borders of post-annexation Jerusalem encountered problems in their marital life. As usually happens in such cases, the wife left the marital home and sojourned in her father’s house for several months. The couple’s youngest child accompanied her, while the other children—some of them grown-ups—remained with the father. The couple was apparently unable to resolve the dispute by themselves, and despite some attempts to achieve reconciliation, the quarrel persisted.12

In the summer of 2003, after several months of unresolved dispute between husband and wife (and their families), the wife filed a “strife and discord” lawsuit in the Israeli shari‘a court, asking for the judicial dissolution of the marriage. She claimed that due to their “impaired marital life (su’ al-mu‘ashara), the mutual hatred and discord between them are permanent and irresolvable.”

In the first hearing in the case, both the wife and the husband attended the court. The wife was represented by a shar‘i advocate, the husband by a lawyer, and both were accompanied by agnate relatives. Also present in court were five of their children (while three other children did not appear). As usual, the hearing began with a presentation of the statement of claim by the wife’s legal representative. Then the qadi addressed the husband’s legal representative, asking for his response to the statement of claim. The husband’s lawyer responded by denying the existence of strife and discord between the spouses, and claiming that the wife had left the marital home without any shar‘i justification. The lawyer therefore asked the court to reject the wife’s lawsuit, and to order her to pay the trial costs.

The qadi ended this very brief hearing by stating that since the defendant denied the statement of claim, the burden of proof rests with the claimant. He therefore ruled that the wife must provide the court with evidence in the next hearing, which was scheduled—after consultation between the qadi and the legal representatives—for three weeks later. Throughout the hearing neither the wife nor the husband spoke a word.

I did not attend the second hearing, but from the court minutes I learned that the wife described in detail two cases of quarrels with her husband that deteriorated to physical violence on his part (she claimed that on one occasion he pushed her and banged her head against the wall). She also brought evidence that her husband recently filed an obedience lawsuit (ta‘a zawjiyya) in the Jordanian shari‘a court, and argued that this is a spiteful lawsuit (da‘wa kaydiyya), which clearly indicates that a state of discord and strife does exist between them. In addition, the wife summoned to court three witnesses—neighbors living in close vicinity to the disputing couple—who testified that there are problems in the couple’s marital life. One of the witnesses was apparently an agnatic uncle of the husband, and yet he testified on behalf of the wife: he said that the couple had been living in conflict for a long time, and that loud shouting was frequently heard from their house.13

The husband’s lawyer tried to undermine the witnesses’ testimonies. He also responded to the claim of the wife’s representative that filing an obedience suit indicates the existence of “strife and discord.” It is exactly because the husband denies such a state of affairs, he argued, that he demands the return of his wife to the marital home and her obedience to him. Nevertheless, it appears that Qadi Zibdi was convinced that strife and discord do exist between the couple.14 He gave a resolution to this effect, and ordered the parties to provide the court with names of arbitrators within ten days.15

The next hearing took place ten days later.16 The purpose of the hearing was to appoint arbiters. Nevertheless, when the hearing began, the wife’s representative rose and said that there will be no need to appoint arbiters, for an agreement on a divorce had been achieved in the shari‘a court in Salah al-Din Street [viz. the Jordanian shari‘a court]. The advocate then handed to the qadi a signed ruling of “divorce by consent with mutual waiving of all financial obligations” (talaq bi’al-ibra’), issued just three days earlier by the Jordanian court. He said that the spouses had agreed to reciprocally renounce any financial claims that they may have, except for the ‘idda and the minor child maintenance payments.17 They even agreed on the maintenance amounts: the husband will pay monthly child maintenance of 1,200 NIS, and during the ‘idda period additional 800 NIS for his wife.

The advocate then asked that the details of the maintenance agreement be noted and registered in the court ruling. Qadi Zibdi, who was not at all surprised by this new development, dictated a ruling, stating:

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