Three Shari‘a Courts in Jerusalem

Chapter 12
Three Shari‘a Courts in Jerusalem

Whereas the Israeli shari‘a courts and the family courts both operate under the aegis of the Israeli legal system, the Jordanian and the Palestinian shari‘a courts belong to other state (or state-like, in the Palestinian case) legal systems. The parallel operation of several shari‘a courts in present-day Jerusalem—an Israeli, a Jordanian and two Palestinian courts—should therefore be regarded as a clear case of “strong” legal pluralism, even in the sense that John Griffiths ascribes to the term (see Griffiths 1986a).

My main thesis in this chapter is that unlike the relations between the Israeli shari‘a court and the family court, which are characterized primarily by competition over potential litigants (see Chapters 9 and 10), the relations between the Israeli shari‘a court in West Jerusalem and the Jordanian and Palestinian shari‘a courts in East Jerusalem are characterized primarily by interdependency and close interaction. Since the three courts occupy quite different positions in the religious-legal field, the competition between them is relatively limited. The Israeli shari‘a court, with its inherent problems of legitimacy (see Chapter 2), does not threaten the religious and normative superiority of the Jordanian and Palestinian courts; and these courts, in turn, cannot seriously compete for litigants, since their rulings are not executed by the Israeli authorities.

In other words, these three courts may be likened to three suppliers of goods that operate in the same social field, but specialize in somewhat different niches. Since none of these courts threatens the dominance of the others in their specialized niches, competition is downplayed, and reciprocal relations for the benefit of all parties are promoted. Indeed, as I will try to show in this chapter, these three courts sustain dynamic relations with each other. These relations are based on a complex system of capital exchange: the Jordanian and Palestinian courts confer normative and religious legitimacy on the Israeli court, which in return provides these tribunals (and their staff) with institutional recognition and with substantial material benefits.1 I argue that this complex arrangement of capital exchange is anything but stable and self-evident. In fact, during the first years of its existence, the Israeli shari‘a court in West Jerusalem maintained a strained and even antagonistic relationship with the Jordanian and the Palestinian courts in East Jerusalem. It was only during the last decade or so that cooperation between these courts has evolved.

The objective of this chapter is to review and to analyze the dynamic relations between these courts. My analysis focuses on the Israeli shari‘a court in West Jerusalem, but I also characterize the positions that the other courts, the Jordanian and the Palestinian, occupy in the organizational network of legal institutions operating in contemporary Jerusalem. In the first section I thus provide some background information on the Jordanian and Palestinian shari‘a courts. The second section tracks the history of the relations between these courts, as they have developed since the establishment of the Israeli shari‘a court in Jerusalem.

The Jordanian and the Palestinian Shari‘a Courts in Jerusalem

Since 1967 and until the establishment of the Palestinian National Authority in 1994, the operation of shari‘a courts in the West Bank was arranged as follows: Jordanian courts were operating in all major Palestinian cities, and a shari‘a court of appeal was in Jerusalem; the courts were administrated and financed by the Ministry of Awqaf in Amman, the Department of Qadi al-Quda, with the aid of the Supreme Islamic Board in Jerusalem; Israeli authorities allowed the shari‘a courts to operate without interference, and the rulings of these courts were executed by Israeli execution offices, except for the rulings of the Jerusalemite courts.

These arrangements remained intact even when King Hussein of Jordan announced in July 1988 the formal severance of the administrative ties between Jordan and the West Bank.2 According to the decision of the Jordanian Assembly, Jordan’s administrative and legal disengagement from the West Bank was now complete, with the exception of the Ministry of Awqaf and the Department of Qadi al-Quda, which administered the shari‘a courts (see Welchman 2000: 75). Thus, between the years 1988 and 1994 the shari‘a courts and the waqf administration remained the last vestige of Jordanian direct influence in the West Bank. This influence was further reduced, however, following the signing of the Israel–PLO Declaration of Principles in September 1993, and the subsequent establishment of the Palestinian National Authority (PNA).

The “Jerusalem question” and the issue of control over the holy places on the Temple Mount appeared to be a hard nut to crack not only in the context of the Israeli–Palestinian negotiations, but also in the context of Jordanian–PNA relations.3 King Hussein insisted that in light of the historic role that Jordan played in the Muslim holy shrines in Jerusalem, Jordan must be involved in the final negotiations concerning the future status of the city. Israel, for its own reasons, was willing to recognize the “special role of Jordan in Jerusalem” (see Klein 1996: 749–50), and thus the Israeli–Jordanian Washington Declaration (signed in July 1994) included a paragraph to this effect (quoted in Welchman 2000: 78).

Rumors of an Israeli–Jordanian deal designated to deprive the PNA of control over the Muslim holy places in Jerusalem (ibid.: 79) have inflamed a bitter struggle between Jordan and the PNA over strongholds in Jerusalem.4 Due to the strained relations between the PNA and Jordan, the latter announced that it will cut all administrative ties with the shari‘a courts and the awqaf departments in the West Bank as of October 1, 1994, with the exception of those in East Jerusalem. Consequently, the PNA took over responsibility for the employees of the waqf administration and the shari‘a courts in the West Bank, who continued to work as before—only with Palestinian seals and stamps, instead of Jordanian ones (Welchman 2000: 79).

Negotiations between the PNA and Jordan concerning the resort of Palestinians from the West Bank to the shari‘a court of appeal in Jerusalem failed, and in January 1995 Yasser Arafat issued a decision establishing a Palestinian shari‘a court of appeal (ibid.: 81). The permanent seat of this court is supposed to be in Jerusalem, but in the meanwhile the court sits in Nablus and hears appeals from all West Bank shari‘a courts, except for Jerusalem. To date, the Palestinian shari‘a courts apply Jordanian substantive and procedural law, and despite the great efforts made both by civil society organizations and by Palestinian officials in order to draft a new Palestinian personal status law, this legislation has not yet materialized.5

As for Jerusalem, since the PNA is not allowed openly to act in the city, Palestinian shari‘a courts have been established in Palestinian neighborhoods on the outskirts of the city, just outside its municipal borders as defined by Israel. These courts, situated in al-Ram and al-‘Azariyya (see Figure 6.1), serve Muslim residents of the Palestinian district of Jerusalem. Within the city itself, the shari‘a court of first instance administered by Jordan continues to hear cases and to register deeds of East Jerusalemite Muslims as before. However, the Jordanian appellate shari‘a court now hears appeals only from that one court.

As explained in Chapter 8, I could not obtain access to the Jordanian and the Palestinian courts in East Jerusalem, and never had the opportunity to attend hearings in these courts. In the following, I will therefore provide some descriptions of these courts and their legal cultures as recounted by lawyers and litigants in the West Jerusalem shari‘a court.

The Jordanian Shari‘a Court of First Instance

The Jordanian court operating in Salah al-Din Street, near the Old City compound, was often mentioned by my interlocutors (litigants, legal professionals, and even court staff), and in different contexts. One lawyer, for example, while criticizing the Israeli shari‘a court for a lack of observance of formal procedures, told me that:

Here [in the Israeli shari‘a court] there is no order (nizam). One day is like that, and the other day like that. One day they say that civil laws apply here, the other day they say they don’t apply. This is no way to run a court.6 You should go and see the shari‘a court in Jerusalem (al-mahkama al-shar‘iyya fi al-quds) [viz. the Jordanian shari‘a court in East Jerusalem]; there you have order: they work by the book. They don’t change their minds all the time.

Q: And is it good? Do they do justice to the litigants more than here?

Yes. Sometimes. There [in the Jordanian shari‘a court] you know what to expect. They work by the book, as inscribed by the noble shari‘a … [a moment of silence]. Sometimes it’s good and sometimes not. They are very rigid there. Sometimes a person may be deprived of justice (mazlum), but he has no evidences. If you work by the book, you can’t help him. But here the qadi [viz. Qadi Zibdi] is clement. He will meet this person half way; here there is leniency (luyuna), but sometimes leniency becomes lawlessness (fawda).

(Conversation with N.S., June 8, 2004)

Another lawyer,7 in response to my question concerning the difference between lawyers and shar‘i advocates, argued that:

Here [in the Israeli shari‘a court] you have some shar‘i advocates who became kings. One man [he tells me his name] was a close friend of Qadi Mudlij.8 They were like this [he held his two index fingers close to each other, to indicate that Qadi Mudlij and that man were close as the two fingers … ] This lowlife man—here he is like a king [ … ]. However, if he would dare to set a foot in the shari‘a court in Salah al-Din Street, they would send him away in a second.

(Conversation with A.A., March 25, 2002)

As illustrated by these excerpts, the Jordanian shari‘a court is portrayed as an antithesis to the Israeli shari‘a court in West Jerusalem. Indeed, whereas the former is described as a tribunal that fervently preserves “tradition,” the latter is viewed as a tribunal that continuously adapts itself to the changing circumstances; whereas the former is described as uncompromising and rigid, the latter is portrayed as dynamic, not to say chaotic; and whereas the former is a prestigious, old fashioned institution, the latter has a dubious reputation.

In fact, the antithetic juxtaposition of the Jordanian and the Israeli shari‘a courts is a recurring theme in my interlocutors’ discourse. The two courts are described as poles apart, as almost antonymic institutions that differ from each other almost in every respect. In addition to the pairs of dichotomous images mentioned, the Jordanian and the Israeli shari‘a courts are also depicted as contrasting in the following respects: the former is old and inefficient, and the latter new and friendly; the former serves the interests of men, whereas the latter promotes new ideas about gender-equality (see Shahar 2004); the former represents resistance to Israeli occupation, whereas the latter represents the occupation itself.9

Undoubtedly, there is a kernel of truth in these images.10 They reflect the specialization of each of these courts in a specific “market niche,” and the emergent “division of labor” between them. However, in my view, this set of binary oppositions also represents actors’ attempts to make sense of the complex socio-legal reality surrounding them. They construct a mental map of the legal field, in which the Israeli and the Jordanian shari‘a courts occupy contradictory positions and exhibit contradictory attributes.

The Palestinian Shari‘a Courts

The Palestinian shari‘a courts in the district of Jerusalem constitute the puisne element in the network of legal institutions described here. Compared to the three more prominent elements in the network—the Israeli and the Jordanian shari‘a courts, and the Israeli family court—the Palestinian courts are indeed of secondary importance from the viewpoint of Jerusalemite Muslims. Not only are the PNA courts located outside the Israeli municipal borders of the city (and thus they are almost irrelevant for Israeli ID card holders), but they also lack both the normative and religious prestige of the Jordanian court and the practical effectiveness of the Israeli courts.

As noted by many observers, the PNA legal system (to which the PNA shari‘a courts belong) suffers from very low credibility and accountability. Even before the decrease in the PNA’s ability to govern in recent years,11

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