Shari‘a Courts in Israel: The Legal Setting

Chapter 3
Shari‘a Courts in Israel: The Legal Setting

As noted, the Ministry of Religious Affairs established shari‘a courts in Nazareth and Acre as early as August 1948.¹ Another two courts were opened in Jaffa and Tayyibe in 1950, and a shari‘a court of appeal, located in West Jerusalem, was established on January 1, 1953. During the first years of their existence under Israeli rule, the operation of shari‘a courts was not regulated by Israeli law. The courts employed the OLFR and the Ottoman Law of Procedure for Shari‘a Courts of 1917, as adopted and amended by the Mandate regime,² and the qadis were simply appointed by the bureaucrats of the Ministry of Religious Affairs.

During the early 1950s, the recently established shari‘a courts were the subject of a heated ministerial feud between the Ministry of Religious Affairs and the Ministry of Justice. The two ministries were quarreling over jurisdiction, and meanwhile the legislation of a “shari‘a courts law” was delayed (see Peled 2001: 62–3). As a result of the delay, rulings of shari‘a courts were canceled in several cases by civil courts, on the grounds that they have no legal authority. This, of course, infuriated the qadis, who protested against the government’s neglect of a matter of such importance for the Muslim community in Israel (ibid.: 63). Finally, the pressures on the government ministries bore fruit, and a draft law was prepared.

In December 1953, the Knesset passed the Shari‘a Courts Law (Validation of Appointments), 5714–1953. The law granted post-factum recognition to all rulings issued by the shari‘a courts in Israel since their establishment. It also confirmed previous appointments of qadis, and charged the Minister of Religious Affairs with the implementation of the law.³ And yet, while the Shari‘a Courts Law (Validation of Appointments) regulated the operation of existing shari‘a courts, and legalized the rulings of the officiating qadis, it did not outline a procedure for making new appointments. A comprehensive qadis law that regulates all matters relating to the appointment of new qadis, was only legislated in 1961.⁴ The Qadis Law defined a qadi as a judge in a shari‘a court or in a shari‘a court of appeal (Article 1), and stated who is eligible to be appointed as a qadi: a Muslim, who has “suitable training in shari‘a law;” whose way of life and character befit the status of a qadi; and who is at least thirty years of age, and is married or has been married (Article 2).

The law further determined that qadis should be appointed by the state’s president, upon the proposal of an appointment committee (Article 3). The committee has nine members: two qadis elected by the body of qadis for three years; the Minister of Religious Affairs (chairman of the committee), and another minister to be elected by the government; three Members of Knesset (at least two of them Muslims); and two lawyers, at least one of them a Muslim (Article 4).⁵

The Qadis Law also determined that the president of the shari‘a court of appeal will be appointed by the Minister of Religious Affairs (Article 6(a)); and that a person appointed to be a qadi must pledge allegiance to the State of Israel (Article 7).⁶ The rules for the administration of shari‘a courts, and the sitting places and areas of jurisdiction of the shari‘a courts, shall be prescribed by the Minister of Religious Affairs, following consultation with the president of the shari‘a court of appeal, the body of qadis, and the Minister of Justice (Article 10(a), (b)).

More regulations were issued in 1968 with regard to shari‘a court fees. These regulations detailed the sums of money to be charged for the various services provided by shari‘a courts. The sums of money have been updated several times since then. In 1971, two new courts were opened in Haifa and Beer-Sheva; a court was opened in West Jerusalem in 1988,⁷ and another one in Baqa al-Gharbiya in 2006. This brings the total number of regional shari‘a courts operating presently in Israel to eight.

All in all, the administration of the shari‘a court system by the Ministry of Religious Affairs has been characterized over the years by neglect and deprivation (see Peled 2001: 148). The shari‘a courts were discriminated against in comparison with the rabbinical courts in terms of budgets, number of employees, and nomination of judges.⁸ Under the administration of the Department of Muslim Affairs in the Ministry of Religious Affairs, the shari‘a court system became a marginal and neglected arena within the Israeli legal system (Shahar 2000: 49). The qadis and other Muslim religious functionaries have often complained about the neglect, but paradoxically, they have also benefited from this lack of governmental attention. Due to its marginality, the shari‘a court system has escaped close scrutiny by state institutions, and gained some additional degree of freedom. The fact that there was almost no supervision of shari‘a courts’ actions—except, perhaps, for a limited judicial review of their rulings by the High Court of Justice (HCJ)⁹—enabled the qadis to create and maintain de-facto autonomy.¹⁰

Since 2001, however, state supervision over shari‘a courts has somewhat increased. In September 2000, the Israeli government, headed by Prime Minister Ehud Barak, decided to annul the Ministry of Religious Affairs, and to disperse its responsibilities among other government ministries. This decision was never fully implemented, and was later canceled all together, but it affected the shari‘a courts nevertheless: in January 2001, the shari‘a court system was transferred, together with the Druze court system, to the responsibility of the Ministry of Justice.¹¹

The transfer of shari‘a courts to the Ministry of Justice was made in agreement with the shari‘a courts administration, and with the active support of the president of the shari‘a court of appeal, Qadi Ahmad Natur. Presumably, Natur believed that the reassignment would increase the status of shari‘a courts within the broader Israeli legal system. Nevertheless, he did not anticipate that this would also result in greater attention and stricter supervision. Since the reassignment, several reforms have been initiated, and the level of governmental supervision of the shari‘a court system has significantly increased.

The most important reform, however, was the amendment of the Qadis Law of 1961—at the initiative of Qadi Natur and several Muslim Members of Knesset. Amendment No. 10 to the Qadis Law passed in the Knesset in July 2002. The major changes that were introduced to the law referred to the requirements for nominees to the position of qadi: they were now required to have “high religious education in shari‘a or in Islamic studies, to the satisfaction of the appointment committee members, or otherwise be lawyers, members of the Bar, who have practiced law for a period of no less than 5 years” (Article 2(a)(1)). In addition, nominees were now required to pass an exam (Article 2(a)(4)), composed by an examining committee comprising three members: the president of the shari‘a court of appeal; a Muslim MK; and a person, who has been a qadi in the past, or has been an active lawyer for at least five years (Article 2(b)).

These changes were introduced in response to criticism as to the lack of adequate criteria for the eligibility to the position of qadi. According to the Qadis Law of 1961, appointees for the position of qadi in Israel were not obliged to have any formal education—not in the shari‘a nor in any other field of knowledge. They were only required to have “suitable training in shari‘a law,” and to be characterized by “a way of life that befits the status of a qadi.” Both criteria are defined in subjective terms, and are therefore totally obscure.

The fact that the requirements for the position of qadi were so minimal had indeed negative implications for the status of qadis in Israel (see Neuhaus 1991: 38, Reiter 1997: 208, Peled 2001: 121). During the 1990s, however, another problem emerged: the obscurity of the criteria for the selection of qadis resulted in multiple appeals against the decisions of the appointment committee. Nominees who were not chosen, as well as several civil society organizations, “flooded” the committee with “reservations” concerning its decisions. Several appeals against the committee were also submitted to the High Court of Justice. As a result, the appointment of new qadis, who were selected by the committee, was delayed for months and even years.¹²

Two other significant changes were introduced: First, the president of the shari‘a court of appeal became a permanent member of the appointment committee. This means that only one additional qadi (instead of two, previously) will be elected by the body of qadis as a member for a period of three years (Article 4(a)). Second, the Minister of Justice replaced the Minister of Religious Affairs as chairperson of the appointment committee, and in all other matters relating to the procedure of qadi appointments.¹³

We may conclude that under the administration of the Ministry of Religious Affairs, the shari‘a courts suffered neglect, but also benefited from a lack of supervision; while under the administration of the Ministry of Justice, some important, long-needed reforms were introduced, but governmental supervision tightened. Another notable change discernible in the last decade or so is the significant increase in the power of the shari‘a court of appeal and of its president, Qadi Ahmad Natur. A manifestation of this process of centralization is undoubtedly to be found in Amendment No. 10 of the Qadis Law, which granted the president of the shari‘a court of appeal far-reaching authority (see also Abou Ramadan 2003b).¹⁴

Material and Procedural Laws

The legal foundations of the material and procedural laws applied in present day Israeli shari‘a courts are derived from the Ottoman codes: the Majalla (1876), the OLFR (1917), and the Law of Procedure for Shari‘a Courts (1917). To these codes we should add the Mandatory procedural regulations of the shari‘a court of appeal.¹⁵ As discussed, the Ottoman codes were incorporated with some changes into the Mandatory legal system, and later on adopted by the Israeli legislator.

Since the Israeli legislature has generally refrained from intervening in the material religious laws (again, due to the sensitivity of religion–state relations in Israel and due to the “sacred” status quo), and since there is no Council of Muslim Jurists (majlis ifta’) in Israel, nor any other legitimate Muslim body of legislation, the Ottoman codes have remained in force in shari‘a courts until this very day.¹⁶ Nevertheless, the Israeli legislature was not indifferent to some elements of discrimination against women, which are inherent in both Jewish and Islamic law. The Knesset sought an alternative path, circumventing the need to interfere with material religious laws, while enabling the state to introduce normative and legal changes and to better the status of women.