The Site
Chapter 5 My first encounter with the shari‘a court of first instance in West Jerusalem took place in January 1998, when I visited the shari‘a court of appeal that was located in the same building. I had an appointment with Qadi Ahmad Natur, the president of the shari‘a court of appeal, and was having troubles finding my way. Although I had obtained the exact address of the court—right at the beginning of Jaffa Street, a central street in (Jewish) West Jerusalem—locating it turned out to be a challenging task. No sign whatsoever—neither in Arabic nor in any other language—indicated the existence of a court in this place. Eventually I identified an old, tall, one-story building with cracked walls and a neglected front entrance, and mustered the courage to knock on the heavy, bare door. I was welcomed by a friendly clerk who, following my explanation in stammering Arabic that I came to meet Qadi Natur, pointed out that this is actually the shari‘a court of first instance. Nevertheless, he cordially led me through several internal doors to the section of the building that was occupied by the shari‘a court of appeal. The purpose of this initial visit was to ask for Qadi Natur’s permission to conduct fieldwork and participant observations in the shari‘a court of first instance, as part of my MA project. My numerous attempts to gain access to the Jordanian shari‘a court in East Jerusalem had failed (for details, see below), and I was quite skeptical about my chances of getting a positive response from Qadi Natur. Still, this time I was equipped with a letter of reference from Prof. Aharon Layish, my teacher at the Hebrew University, who had also been one of Qadi Natur’s teachers. Natur, a man of about 45, neatly shaven and dressed in a three part suit, was curious about my research. He was rather hesitant—not to say suspicious—when I told him that I am an anthropologist, more interested in the social interactions in the court than in its purely legal aspects. I therefore emphasized that I will safeguard the anonymity of the litigants I encounter during my research. Finally, Qadi Natur gave me his initial consent to conduct fieldwork in the court of first instance, although he stressed that I will also need to obtain the consent of the qadi presiding in the court. I left the meeting disappointed, feeling that there is little chance that I will ever be given access to this court. I assumed that Qadi Natur is using the same method as the Jordanian court officials that I approached—namely, shirking responsibility and letting someone else take difficult decisions (such as granting an anthropologist access to a court). I was surprised, therefore, when two weeks later I received a phone call from his office manager, informing me that I was granted permission to conduct my research in the court of first instance. She told me to coordinate my presence in the court with the presiding qadi at that time, Sheikh Ziad ‘Asliyya (which I did immediately by phone), and two days later I began my fieldwork. For me this was the beginning of a long relationship, which continues to unfold until this very day. In this and the following chapters of Part II, I present a (thick) description of this socio-legal institution based on my 15 years of acquaintance with it. It begins with a more grounded discussion of the tense political environment within which the court operates, followed by a discussion of the court’s physical arrangements, and of its hybrid organizational characteristics. The old, decrepit building that I first visited in 1998 was the residence of the West Jerusalem shari‘a court, ever since its establishment 10 years earlier. This tall, narrow stone building—located in a backyard on Jaffa Street, next to the shari‘a court of appeal and to the shari‘a courts administration (idarat al-mahakim al-shar‘iyya), which operated there since the 1950s—was supposed to be a temporary residence. Yet as is usually the case in Israel, to quote a famous maxim, “nothing is more durable than a temporary arrangement,” and the court remained in this place for more than 11 years, until September 1999, when it finally moved to a new location. On the day of my first arrival to this “temporary” residence, there were no hearings held in the court. My impression was therefore of a quiet, dusky, mildewed place with a calm, intimate ambiance, in sharp contrast to the hubbub of the city center. It had only four rooms: a courtroom (5×8 meters), the qadi’s chambers (4×4 meters), a small room—almost a niche—for two typists, and a tiny little kitchen. Nevertheless, on hearing days, as I was soon to learn, this quiescence was replaced by crowdedness and noise. Dozens of visitors—litigants and their escorting family members, lawyers, and shar‘i advocates—all squeezed into the small building, generating a hectic yet curiously still intimate atmosphere. It appeared that the growing number of files opened and processed each year—especially since the mid-1990s (see Figure 4.1)—resulted in a deluge of visitors beyond the court’s capacity to handle. As I was told by Qadi ‘Asliyya, the crowdedness is the reason why many litigants and their companions prefer waiting in the yard outside, until their names are called up by the court crier, inviting them to enter for their session. This was, of course, inconvenient when the weather was inclement. A more severe problem, though, was that such a gathering of Arabs in the middle of Jewish Jerusalem was bound to attract some extra attention by security forces. Israeli border police made it a habit to visit the place occasionally and to perform humiliating security checks on court comers.1 Things got even worse when Jerusalem’s central bus station was relocated to the vicinity of the court (due to a renovation of its previous location), and the harassment by the nervous policemen became a matter of daily routine. It became so disturbing, Qadi ‘Asliyya told me, that he decided to transfer all of the court’s hearings to his personal chambers, so that people can await their turn in what was previously the courtroom, and hence avoid standing in the yard outside. This anecdote illustrates many of the court’s characteristics: its neglect by Israeli authorities; its functionaries’ efforts to turn it into a “user-friendly” institution that caters for the needs of Jerusalemite Muslims; and of course, the highly strained political context of the Israeli–Palestinian conflict that reveals itself in almost every aspect of the court’s operation.2 Indeed, the turn of the century was particularly tense in Jerusalem. Those were the years that followed the assassination of Prime Minister Yitzhak Rabin (November 1995), when the Oslo peace process was already facing some serious difficulties and impediments, but was still presumably progressing toward a permanent status agreement that would put an end to the conflict between the two struggling peoples. Jerusalem, one of the key issues in the Israeli–Palestinian conflict, was the focus of heated public debates and elaborate political strategies pursued by both parties. Each side was trying to secure its interests in the city and to strengthen its position before the negotiations over the permanent settlement will commence. Israeli policymakers were preoccupied with securing the “Jewish character” of the city and were willing to perform various legal and political manipulations to achieve their goal.3 In a similar vein, the Palestinian National Authority (PNA) tried to establish strongholds in Jerusalem, mainly by infiltrating and taking control of various institutions in the Eastern part of the city, such as “The Orient House” and the religious Muslim establishment, previously controlled by Jordan (see Amirav 2003).4 During my first two years of fieldwork in the Israeli shari‘a court, the implications of the Israeli–Palestinian national struggle were evident in almost every case tried by the court. Indeed, the effects of this political context on the court’s operation became one of the central axes of my MA thesis (Shahar 2000). The thesis analyzed the West Jerusalem shari‘a court as an arena of struggle, where two power systems intersect: Palestinian–Israeli power relations in Jerusalem after the occupation and annexation, on the one hand, and gender relations in the Palestinian community, on the other. Following Hirsch (1994), I tried to show that just like the Kenyan shari‘a court in Mombasa studied by Hirsch, the West Jerusalem shari‘a court plays a paradoxical role within both power systems, the national and the genderial: on the one hand it constitutes a site of hegemony and control, and on the other hand a site of empowerment opening up possibilities for resisting hegemony. Furthermore, employing Foucault’s conceptualization of power and resistance as fluid, unstable, and mutually constitutive (Foucault 1979: 93–5, 1982: 202–10), I analyzed the intersection of these two systems of power relations. I argued that in some instances, legal strategies deployed by women represent resistance to male hegemony, but at the same time serve to reinforce Israeli domination over the Palestinian population in East Jerusalem. In several cases of family disputes, for example, wives argued that the fact that the marital home provided to them by their husbands is located outside the Israeli municipal borders of Jerusalem causes them damage (darar). The location of the house made them liable, they stated, to the sequestration of their Israeli ID cards5—undoubtedly, a most serious damage to their well-being.6 They claimed that in light of the (potential) damage, the marital home provided cannot be considered a proper shar‘i house, and hence they are perfectly justified in leaving it. This argument was usually accepted by the qadi, who tended to reject obedience suits (ta‘a zawjiyya) in such cases and to grant the wives maintenance payments.7 Yet, as many furious husbands told me, this argument was definitely problematic from a national Palestinian point of view, not only because of the high value it attaches to an Israeli ID card, but also because it endorses the Israeli definitions of Jerusalem’s borders, which were set as part of the Israeli attempt to restrict Palestinian presence in the city.
The Site
The Court as a Site of Political Struggle and Cultural Dynamism