Take it to (secular) court

Despite social pressure, increasing numbers of Muslim women are bypassing the traditional religious shari'a courts and turning to the secular family affairs courts

By SHULA KOPF
Muslim Mother 521 (photo credit: Sarah Levin)
Muslim Mother 521
(photo credit: Sarah Levin)
WHEN NASRIN OBJECTed to her husband’s plan to have a relationship with another woman, he beat her, threatened to kick her out of the house and to take custody of their three children.
But Nasrin, a 30-year-old Muslim woman from Haifa, refused to give in. Steering clear of the traditional shari’a [Muslim law] court, she turned to the secular Family Affairs Court.
The Family Affairs Court awarded custody to Nasrin. Speaking with The Report by telephone, refusing to be identified based on her lawyer’s advice, she says simply, “It is easier to get my rights as an Israeli citizen in the civil courts than in the shari’a. The civil courts take the children’s interest into account more.”
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Until a decade ago, Nasrin would not have had the option of turning to the Family Affairs Court for issues of child custody, alimony, property division and so forth. Prior to this, Muslim women were allowed to turn solely to the shari’a court system, even though Jewish women have had the option of turning either to the rabbinic courts or the secular courts since Israel’s founding.
Although numbers are unavailable, it would appear that the vast majority of Muslim women still prefer to adjudicate these matters according to the laws of Islam, in their mother tongue of Arabic, with judges familiar with the cultural context and in courtrooms geographically close to their homes. But a growing minority has despaired of justice from the Muslim religious courts. Turning their backs on tradition and religious authority, these Muslim women are affirming their rights as Israeli citizens to overcome what they view as the patriarchal and discriminatory positions of the sharia court system.
But the decision forces them to overcome cultural and religious hurdles. While organizations are encouraging the women to assert their rights, others contend that the sharia court system has reformed and improved its services and, since it is a critical component of Muslim culture, women should refrain from turning to the secular courts that undermine Islam and Muslim culture.
Muslim society, says Mohammad Abu Obeid, a qadi (judge) in the shari’a court in Baqa al-Gharbiya, a town in central Israel, is not secular. “Our society is religious, or at least traditional,” he tells The Report in an extended interview. “Some [religious] scholars would say that from a religious point of view, it is a sin to go to a civil court when there is a shari’a court that deals with the same issues. And the Koran describes whoever leaves the judgment of Allah and goes to the judgment of others, as a hypocrite, unjust and sometimes as an unbeliever.”
AMONG WESTERN NATIONS, Israel is the only country whose legal system grants jurisdiction over family law to state-authorized religious courts. The system is based on the Ottoman millet system, according to which every religious community conducted its own affairs, and, in Ottoman times, the shari’a court was the state court. The British continued the system, which was then subsequently adopted by the State of Israel.
Israel has three main religious courts – rabbinical, shari’a and Druze – in addition to private ecclesiastical courts for the 12 Christian denominations. These religious courts are fully funded by the Ministry of Justice, which pays everything from the salaries of the rabbis and qadis down to the last paper clip, and the civil authorities recognize the religious courts’ rulings, although their formal jurisdiction has, over the years, been restricted to issues of personal status.
There are eight shari’a courts plus a shari’a Court of Appeals in Jerusalem. Shari’a, which means “path” in Arabic – much like halakha in Hebrew – is intended to guide all aspects of Muslim life.
Developed several hundred years after the Prophet Muhammad’s death in 632, shari’a is derived primarily from the Koran and the Sunna – the sayings, practices, and teachings of Muhammad, which Muslim scholars use to address modern issues.
Like critics of the rabbinical courts, critics of the shari’a courts contend that they are biased against women.
“In Israel the shari’a law is still patriarchal and discriminatory. Tunis and Morocco have more progressive laws for Muslims than does Israel,” says Dr. Moussa Abou Ramadan, who teaches law at the Carmel Academic Center in Haifa and has published many scholarly papers on the subject.
Over the years Israeli legislation has overridden some shari’a laws, such as polygamy, for example. Israeli law also set a legal age for marriage, outlawed unilateral divorce and legalized adoption of children (illegal under shari’a law.) Shari’a officials have since raised the legal age for marriage for Muslim women to 18, higher than Israel’s civil legal age of 17.
Where civil law and shari’a law collide, civil law is supposed to take precedence, as in the example of polygamy, permitted under Islamic law but considered a criminal act under Israeli law. Verdicts handed down by shari’a courts are subject to review and can be overturned by the Supreme Court.
BUT ACCORDING TO ABOU Ramadan and lawyers who appear before the shari’a court, some qadis ignore civil law and penalize women who turn to the Israeli civil courts.
Fouzieh Abou Ramadan, a cousin to Moussa Abou Ramadan, is a soft-spoken 33- year-old divorced woman who lives with her two children in her parents’ house in one of Jaffa’s winding alleys. A language teacher working on an MA in language education, she meets with The Report in her home, dressed in blue jeans and a black T-shirt. The living room walls are crowded with framed sayings from the Koran. There are children’s books in Arabic and Hebrew on a shelf and pictures painted by the children, mostly of sheep, proudly displayed on a door. Outside a rooster is crowing. The children are away at school and her mother, dressed in traditional Palestinian Arab dress, busies herself in the kitchen as Abou Ramadan tells her story.
She separated from her husband five years ago. At the first shari’a court hearing her husband asked for guardianship of the couple’s children, which was immediately awarded to him.
“This would have excluded me from making important decisions for the children. He would decide where they would go to school and every other important decision in their lives,” she says in a soft voice, her hands folded in her lap. “The qadi gave guardianship to him immediately, without considering the civil law here in Israel, which says that both parents should be awarded guardianship.
The father was there without a lawyer.
He didn’t need one. He got everything. The qadi was sympathetic to the father.”
She continues her tale: “I petitioned the High Court. As soon as the shari’a court heard that I had petitioned the High Court, the qadi immediately called me in and said there was a misunderstanding and that we both have guardianship. They made me go through all this trouble and sleepless nights for something that should have been my right in the first place.”
According to Dr. Abou Ramadan, there is “inevitable tension between the secular and shari’a courts, since religious precepts based on patriarchy and inequality are applied in the shari’a court.” He points to what he refers to as the “absurd” situation in which a polygamist can be jailed under Israeli law but his second marriage is nonetheless valid under shari’a law. He also cites the example of two cases brought to the High Court by women who had lost custody of their children because they reverted to Christianity, their original religion, after divorcing Muslim husbands.
In both cases, the shari’a courts determined that it is in the child’s best interest to be brought up in the Muslim faith and gave custody to the fathers. The High Court reversed the decisions.
He further notes that the shari’a court also upholds the precept that a woman must be obedient to her husband. If a wife leaves the home without the husband’s permission, she can lose her right to alimony for the time that she was absent, unless she can prove that she left for good reason – physical abuse, for example.
UNTIL A DECADE AGO, MUSLIM women had no options other than the shari’a court.
Some 16 years ago, the Israeli legal system created the Family Affairs Court, intended to provide more expert and sensitive care for child custody and similar issues. But according to the law at the time, only Jewish women were allowed to litigate there. Spearheaded by the Association of Civil Rights in Israel (ACRI), a coalition of Arab and Jewish feminist and civil rights organizations lobbied to amend the law and give non-Jewish women the right to turn to the secular courts.
It took over six years for the amendment to be passed in the Knesset, primarily due to fierce opposition from the shari’a courts, who fought to keep their monopoly; religious groups who contended that civil authorities have no right to interfere in Muslim religious affairs; and Arab nationalist groups who lamented the loss of the last vestige of Arab autonomy in the Jewish state.
At the time, Dr. Ahmad Natour, president of the shari’a Court of Appeals, declared that the amendment was a disaster “that would cause irreparable long-term damage” and was an affront to the Muslim minority and to the Koran itself, which contains most of the law relevant to personal status issues.
Aida Touma-Sliman, general director of an NGO called Women Against Violence, an Arab feminist NGO, explains why this was such a hot-potato issue. “It was obvious that this law should have been legislated right away but [Jewish and Arab] politicians had an agenda: not to get into conflict with the Arab leadership, which organizes the Arab vote,” Touma-Sliman says. “The changing of the law was the breaking of a taboo.”
Despite strong pressure and a threat by the northern branch of the Islamic Movement to challenge the amendment in the Supreme Court, the Knesset passed a bill in 2001. It marked the first time that Arab feminists had organized to successfully challenge the patriarchal status quo.
“The situation in which Arab women were completely trapped within the religious court system has changed,” says Hadas Tagari, the lawyer for ACRI, who organized and coordinated the coalition. “This also has constitutional importance as a statement that all citizens are equal before the law. The legal system needs to think of the Arabs as an integral part of the population and not as an afterthought.”
Touma-Sliman agrees. “We managed to accomplish recognition of the idea of equality and that what is good for the Jews is good also for the Arabs,” she says. “We broke the monopoly of the religious courts over our lives and personal statue issues and gave women the opportunity to choose. As a side effect of this change, the religious courts began to develop their services and became better for women in general because they felt the competition.”
Competition with civil courts has nothing to do with the improvements and reform in the shari’a courts, says Abu Obeid, the qadi in the shari’a court in Baqa al-Gharbiya.
“President Natour instituted huge reforms in the system when he became president of the Court of Appeals in 1994… he has lifted the veil off of the very just principles of the shari’a and has emphasized them in his decisions,” he says. Abu Obeid, who has a law degree from Essex University in England, points out that today all qadis are law school graduates and that some have advanced degrees and lecture in universities.
He says that the shari’a courts offer Muslim women significant advantages.“Arab women in Israel have less economic ability to fight in court. They also have problems speaking Hebrew. When a woman comes before me she can speak fluently in her language. I come from the same background and I can understand her. She doesn’t need a lawyer. She can come to the court stand in front of me and state her case. She doesn’t need to file papers and go through all these legal procedures… In the civil court, men have the advantage because they have the money.”
NONETHELESS, DIVORCE ATtorneys say they see increasing numbers of women turning to the civil courts.
“There is definitely a growing trend of Muslim women who are bypassing the shari’a courts and going to the civil courts,” says Eliezer Grisariu, a Jewish divorce lawyer in Rishon Lezion, who has seen the number of his Muslim clients grow over the past few years.
A spokesman for the courts administration tells The Report that the courts do not compile statistics on the religious affiliation of petitioners and therefore it is impossible to know the number of Muslims turning to the Family Affairs Court.
Shirin Batshon, legal director at Kayan, an Arab feminist organization, tells The Report that she advises her clients, especially those facing custody issues, to go to civil court. She notes, for example, that according to sharia law, if a divorced woman marries someone who is not in her former husband’s family, custody will be transferred to the father, unless she can prove that he is an unfit parent.
“Even if a woman is awarded custody [of her children] by the shari’a court, she is at risk of losing it later if she remarries,” she warns.
Indeed, three years ago, Faizieh Abou Ramadan, the divorced woman from Jaffa, was engaged to be married but broke off the engagement for fear that she could lose her children. “If I were to remarry, the father would have the right to take the kids from me under shari’a law,” she says. “According to Israeli law there must be a report from a social worker about what is best for the children. I was afraid the qadi would give the children to the father without respecting Israeli law. I didn’t feel strong enough to fight.
My lawyer told me that I don’t have to be afraid, but I didn’t want to take a risk. If I had believed that the qadi would consider the well-being of my children, I would have remarried.”
Furthermore, notes Batshon, civil courts tend to award slightly higher child support. According to a 2009 report from the National Insurance Institute the average child support given by civil courts to a woman with two children is NIS 2,359 compared with NIS 1,916 awarded by the shari’a courts.
ARAB FEMINIST activists would like to see the government make it easier for Muslim women to go to civil court, including appointing Muslim family court judges, especially women.
“Only 20 percent of women work and few have academic education,” says Heba Yazbak, general coordinator of the Working Group for Equality in Personal Status Issues a coalition (including the Association for Civil Rights in Israel, Kayan, the Israel Women’s Network, Women Against Violence, and the Altufula Center, Nazareth) working to promote the rights of Arab Israeli women “Some don’t speak Hebrew well and all the papers are in Hebrew. There is a feeling of alienation in the civil courts. And also there are no Arab judges. It is important to understand the cultural and religious context of the people involved and in the civil courts that doesn’t exist. We are lobbying the Ministry of Justice to appoint more Arab judges in the civil court system, especially more women.”
Suad, a 35-year-old resident of Jaffa, tells The Report in a telephone interview that it was difficult for her to decide to turn to the Family Affairs Court for custody issues and says that even now, three years, later, she prefers not to give her full name. The Family Affairs Court awarded her full custody of her children, whom she is raising by herself.
She says her role and identity as an activist working for equal rights for Israel’s Arab minority made the decision complicated.
“As an activist, I did not want to turn to the Israeli civil courts because I view them as ‘Jewish’ courts. These courts have not upheld our rights as a minority,” Suad explains.
“I am not a religious Muslim, but I do believe that as a minority, we should have cultural rights and the shari’a is one of those cultural rights. And there was also pressure from my colleagues – especially my male colleagues – not to use the Israeli ‘Jewish’ courts,” she says.
She explains the complexities of her identity as a woman with competing needs. “I am a proud Arab and a proud Muslim,” she says passionately. “But I am a mother and a woman. I knew that in the Family Affairs Court, and not in my own shari’a court, I would be treated as an equal citizen. I knew that the best interests of my children, not the interests of the patriarchy, would be considered.
When I had to make a list of who I am, I knew what was most important, for me as a woman, a mother, and a citizen.” •