A history of the Shariâ€™ah Courts in Israel, from the time of Sayyidina â€˜Umar (ra) by Qadi Iyad Zahalka, Qadi of Jerusalem
The history of Islam in this country dates to the seventh century CE when the Caliphate under Umar bin al-Khattab conquered Greater Syria (al-Sham) including Palestine. The Caliph Umar appointed a companion of the Prophet Muhammad (s) named Ubada bin al-Samet as a Judge in Palestine, he was the first to be appointed to that position.
The Islamic judicial system is based on a single judge who adjudicates in all matters such as in disputes between people, lawsuits of personal status, civil litigation, commercial and criminal matters alike.
At that time the judges drew rules from the resources of the Islamic lawâ€”the Qur`an, the holy Muslim book, the Sunnah which means the words and actions of Prophet Muhammad (s), the consensus of Muslim jurists, and analogy.
In the 16th century the Ottoman Empire established the religious Muslim courts (called the Sharia courts). They heard all kinds of cases and were governed by Islamic Shariâ€™ah. The Ottoman Sultan adopted the Hanafi school in the judicial system.
It is useful to mention that there are four Islamic legal schools which vary between extreme conservative (the Hanbali doctrine) and the pluralist (the Hanafi doctrine) and in the middle there are two other doctrines (Shafiâ€™I and Maliki).
The difference between the doctrines is based on the principle of legislation, as the conservative doctrine follows the rules on the Qur`an and on the Sunna rigidly, while the pluralist doctrine makes use of human reason, which means they follow the broad and general goals behind the rules on the Quran and the Sunnah, to legislate new rules.
In the middle of the 19th century, under the influence of the Western judicial system, the Ottoman Empire legislated rules drawn from the Hanafi Islamic doctrine in different legal fields. They formed a judicial system which was similar in large extent to the French judicial system. The Ottoman legislators took the principle of the multiple references, besides multiple judiciary systems, so they founded the Magistrateâ€™s Courts, Criminal courts, Courts of Appeals and the High Court of Justice. They established the Shura Council to consider the administrative procedures. They also established the sectarian courts for the non-Muslim communities which were entrusted to decide in issues relating to personal status of non-Muslims.
The Ottoman Empire collected and arranged the laws along the lines of Western laws, thus several laws were passed. The most famous was the Mejelle code of justice provisions, the Ottoman Civil Law of Procedure, the Shariâ€™ah Law of Procedure and the Law of Family Rights. These laws were wstill valid in the Israeli law up to the 1980â€™s and are still enforced in Shariâ€™ah courts up to these days.
This situation continued until the deployment of separate jurisdictions between the Shariâ€™ah courts and the civil courts in 1917, by Shariâ€™ah procedure law. Shariâ€™ah courts started to be considered among the extraordinary courts, so from then on it was not entitled to consider cases that fall within the specialty of the civil courts, as stated in the second article of the law which divides the jurisdictions: â€œIt prevents civil courts from hearing or considering cases belonging to the Shariâ€™ah courts and also prevents Shariâ€™ah judges from hearing cases belonging to the civil courts.â€ According to Article 8 of the Shariâ€™ah procedure law, Shariâ€™ah judges are prevented from hearing and considering claims and transactions which are not listed in the previous article of that law which specified these cases. So the Shariâ€™ah courts specialized in considering cases of personal status and issues of waqf (endowments), it also continued to consider all cases that fall within the jurisdiction of the civil courts if the parties agreed to that.
Following the First World War and after the detachment of the al-Sham countries from the Ottoman Empire, Palestine was under the British Mandate. They continued to work according to the Ottoman law, and in 1922 the Mandate authorities issued the Palestine Order in Council, which provided for the formation of a group of courts to adjudicate disputes according to its subjects.
As the British held the mandate over Palestine, it was natural that the judicial system would be affected by the BHritish judicial system. So theBritish mandate changed laws which suited the change of the authority from the Ottoman Empire to the British Mandate. This lead, for example, to limiting the authority of the Shariâ€™ah courts for Muslims only. The Islamic Shariâ€™ah courts remained under the British mandate without drastic changes, besides only the establishment of the Shariâ€™ah court of appeals in Jerusalem on November 1918.
In 1921, the High Commissioner brought about the formation of the supreme Islamic council in Palestine. One of the most important powers of the Council was the management and control of the Islamic waqf. Also the Supreme Islamic Council began to exercise its power according to Article 8 of the Law of the formation of the Supreme Islamic council in the nomination of Shariâ€™ah judges to approval by the British High Commissioner.
Shariâ€™ah courts in the light of Israeli law
In Israel there are currently 1,400,000 Muslims, governed by Shariâ€™ah courts in their personal status issues, to serve this community, there are 8 regional courts and high court of appeals. Acre Nazareth, â€¦ In every regional court there is a single judge to adjudicate while in the court of appeals there are three judges.
According to Article 52 of the Palestine Order in Council, the authority of the Shariâ€™ah courts was limited for the waqf and personal status issues, mentioned in article 7 of the Ottoman Shariâ€™ah Procedure Law which are:
Waqf (issues of endowment); Funds of the absent and orphans; Guardianship; Issues of absentees; Inheritance and wills; Division of inheritance; Issues of marriage; Issues of divorce and separation of couples; Maintenance; Paternity; Issues of custody.
Followign the establishment of the state of Israel, the Israeli authorities adopted the Mandate law, retained the law which was in force before the establishment of the State, which was based on the principles of the Ottoman law. Upon the establishment of Israel, the provisional government of Israel, issued the order of Administration of Rule and Justice, which states in Article 11, that all the laws that existed before 1948 will remain valid, subject to changes which occurred by the very establishment of the state. Accordingly, it continued the application of Article 52 of the 1922 Palestine Order in Council, in the Shariâ€™ah courts up to this day, by the amendment no. 10 of 1939.
In 1953 the Israeli Knesset passed the Law of Shariâ€™ah Courtsâ€”Approval of Appointments, whereby the state approved the appointment of the judges who were appointed before its establishment and the others who were appointed by the Minister for Religious Affairs in the Israeli government. The Israeli Knesset legislated the Law of Kadies (Muslim Religious Judges) in 1961. This law regulated the way of the appointment of Shariâ€™ah judges. This law continued to determine the practice. The first Shariâ€™ah judge which was appointed by this law was Sheikh Husni al-Zuabi in 1965.
This law still was given subsequent amendments, the most important amendment is No. 10 of 2002, raising the minimum requirements for candidate for judgeship with regard to academic religious and legal studies, which are basic requirements.
Interference of the Israeli lawmaker in the Shariâ€™ah courts
After the establishment of the State, the Israeli legislator adopted the law which was in the country before the declaration of independence, and it increased the intervention in the Shariâ€™ah courts. But issues of waqf, marriage, divorce, orphans, issues of the absentees, have not changed and remain under the Shariâ€™ah courts. However, the jurisdiction fo the Shariâ€™ah courts was limited in matters of inheritance and wills, as it was stated in the Law of Inheritance 1965, that the power to consider issues of inheritance or wills was transferred to the civil courts (â€œfamily courtsâ€), unless all the successors, designated by the law, agreed in writing to give the authority to the Shariâ€™ah courts.
The amendment no. 5 of the family courts of 2001 demolished the exclusive jurisdiction fo the Shariâ€™ah courts, which existed since the British Mandate and thus it limited the exclusive jurisdiction for the Shariâ€™ah courts to marriage, divorce and waqf issues only. The rest of the personal issues are now subject to parallel authority of Shariâ€™ah courts and the family courts.
The way the Shariâ€™ah courts relate to the Israeli law
In the first generation of the judges they were graduates of Al Azhar, but their decisions were built on the concept of the Israeli law even if it contradicted with the Shariâ€™ah rules. So, the decisions based on the civil legal Israeli laws, while the current generation of Shariâ€™ah judges, however, lead a complete change in the opposite direction. This means that the judges abide only by the Shariâ€™ah provisions and they avoid using the Israeli law.
Decision no. 247/98 of the High Shariâ€™ah Court of Appeals, for example, states that: â€œWe would like to remark that the original situation is that the Sahriâ€™ah courts adjudicate according to their religious provisions. But the exception which has been made by the Israeli judiciary in this regard was: if the text was explicitly addressed to the religious courts, then it should be adopted.â€
The Israeli legislator legislated the Law of Legal Capacity and Guardianship which addressed directly the religious courts, including the Shariâ€™ah courts, in order to replace the religious arrangement by a civil arrangement. The civil arrangement would be based on two principles: 1. â€œThe presumption of preschool ageâ€ which means that the mother is entitled for custody over the children until the age of six. 2. The principle of the welfare of minors.
Since the establishment of the state until the 1990s the qadis implemented the civil law in their rulings directly. However, from the mid 1990s until now, the reform led by qadi Natour the president of the High Court of Appeals, renewed Islamic laws by choosing the religious law which is most convenient to the Muslims from the existing schools. Thus, the qadis accepted the civil principles but filled them with religious Islamic content, and this includes the laws on the subject of custody.
Lately the minister of Justice appointed a public committee, of which I am a member (the Shnit committee), which suggests in the present stage to cancel the â€œpresumption of the preschool ageâ€ and demands a new principle based on joint custody.