Palestinian women: their future legal rights.

• Author: Wing, Adrien Katherine

PART I. INTRODUCTION

PALESTINIANS ARE CURRENTLY ENGAGED IN DISCUSSING issues with the Israeli government related to their control of a future Palestinian entity. Additionally, President Arafat has recently appointed a high legal commission, whose task it is to draft a Basic Law which will serve as an interim constitution. One area for future consideration will be a re-examination of the customary and religious traditions which play a large social and legal role in their culture.(1) Both traditions sanction differential treatment on the basis of gender. This article confronts the question of how current and future Palestinian political and community leaders can begin to think about modifying customary and Islamic norms to meet a declared national goal in the 1988 PNC Declaration of Independence of improving the legal status of women. Since Palestinians do not currently control the various legal regimes applicable to them, it is probable that most of the suggestions proposed in this article will not be able to be fully considered until the autonomy period.

The issue of improving women's legal status is profound because deeply rooted customary and religious attitudes are difficult to eradicate through the passage of new laws, even if imposed by newly elected popular regimes. Efforts to grant women a legal status not on a par with their social and cultural status often fail due to lack of legitimacy in the community. Often women's actual social status under custom is better than their status under religious law, but is worse than their position under secular law.(2) While some sectors of the society will favor equalizing women's status, others may vehemently oppose such reformation. In the Occupied Territories, sizable communities of Islamic fundamentalists and other traditionalists fall into this latter category.

The analysis of potential legal reform is intricate because of the complex intertwining of customary and religious heritages.(3) Much of what is considered Islamic was drawn from pre-existing Seventh Century customary law, and much of what is considered custom has been influenced by Islamic precepts.(4) Also, both Islam and custom have been impacted by colonial law, making what today is called custom or religion, in actuality, a response to that impact as well.(5) It is therefore difficult to delineate the influence of the two traditions as opposed to other influences.

Nevertheless, Part II of this article attempts to appraise the role that custom and religion have played historically with respect to women's rights. Regarding the role of religion, this part details the impact on women's legal status of the Islamic heritage of the vast majority of Palestinians. While there are probably many possibilities for improving the status of women, Part III examines three interrelated options. Part IlIA begins the discussion for ameliorating that status by focusing on the potentiality for reinterpretation of Islam as proposed by Islamic and feminist scholars. Part IIIB highlights options for codification of rights through the adoption of a European-style civil or personal status code as has been done by most of the states in the region. In some cases, these codes elaborate upon Islamic principles, and in other instances clearly contradict those principles. The ultimate goal, in my view, should be for the codes to aim for compliance with the norms of international human rights conventions. Part IIIC proposes building upon changes introduced by the Intifada, and incorporating them into post-Intifada custom and religious practice, whether codified or uncodified. Part IV concludes that successful legal transformation is only likely to occur to the degree it reflects other societal change.(6) There is some cause for limited optimism in the Palestinian context due to the modifications wrought by the lntifada.

PART II. THE IMPACT OF CUSTOM AND ISLAMIC HERITAGE ON WOMEN'S RIGHTS

1. Customary Law

   The most ancient legal tradition in the Occupied Territories today is the customary law known as urf (that which is known). Urf handles disputes outside the official civil or religious courts on the basis of traditional oral customs and norms that stress conciliation, mediation, and family and group honor.(7) There are a whole range of offenses concerning the status of women, who are considered repositories of family and clan honor. A case of honor (qadiyat arad) is synonymous with sexual assault against women.(8) The judgments can run into the thousands of Jordanian dinars. The amount depends upon such factors as whether the violation was physical or verbal, whether she was fondled through her clothing, or whether her dress was actually lifted, and the distance the violation occurred from her home. If the violation is felt to be the woman's fault, the men in her "dishonored" family would feel customarily justified in severely punishing her or even killing her.(9) While the jurisprudence is urf, it is represented as being consistent if not identical to Islamic law,(10) an example of the intertwined nature of the two traditions. Actually, none of these arad determinations are covered by Islamic law.(11)

   In the view of feminist scholars, the differential treatment of women under custom is due to the ongoing existence of patriarchy.(12) This stems from historical realities where the physically strongest were responsible for the protection of the family. Thus, gender roles were consigned in such a way so that men were the protectors and providers and women were the child rearers and nurturers.

   This customary condition intensified in the context of various occupations by Ottoman, British, Jordanians, Egyptians, and Israelis. Custom and religion became psychological and social refuges against foreign penetration,(13) providing the basis to confront or at least survive the incursions. These also were traditions with which the occupiers tampered the least, being primarily concerned with areas affecting their ability to physically or militarily control the population.

   This history of multiple occupations has further reinforced the subservient role of women. One of the few areas within the purview of the subordinated men was oversight of their women. For example, if men were asked why they would not let women have more freedom they would say, "What is left for us? We don't have land, homes or identity -- at least let's have our honor."(14) Additionally, the protection of arad (honor) was intertwined with the protection of ard (land).(15) According to Egyptian feminist Dr. Nawal el Saadawi, one of the factors that caused some Palestinians to leave the West Bank during the 1967 war was the perceived need to protect the honor of their women.(16) As such, loss of control over the all-important public aspects of male lives, including land, was counterbalanced by the maintenance and strengthening of male control over private aspects, including female lives. The centrality of honor thus could remain intact in the private sphere.

   Women have often supported the notion of their own subordination, especially in the context of foreign occupation that threatens the entire social fabric. While a few may see female liberation from male patriarchy as inextricably linked with the national liberation struggle, many more women, including the politically active, may be concerned with day to day physical and mental survival under the combined impact of both patriarchy and foreign domination. Like many men, these women will find reliance on custom as both necessary and desirable, one area where their own culture is reaffirmed. As one female political activist said, "If a family can not educate all the children, the man must be chosen, because he will be the breadwinner and the head of the household."(17)

2. Islamic Religious Law

   With respect to the rights of women, the sharia was a vast improvement over Seventh Century customary law. Rather than being regarded as the mere chattel of their husbands, women were given an independent legal personality, and allowed to own and inherit property in their own right. The sharia also restricted polygamy to four wives, permitted women to obtain divorces on certain grounds, and provided for maintenance. While these rights may not currently appear significant to many, they must be viewed in an international historical context in which they compared quite favorably with other cultures including the West, up until the Nineteenth Century.(18) On the negative side, the sharia sanctions differential treatment of women in areas of marriage, divorce, and inheritance.

   In the Occupied Territories, Islamic law is administered by sharia courts, which have decided disputes on matters of personal status (marriage, divorce, child custody, alimony) and inheritance, since the Eighteenth Century.(19) Sharia courts do not independently interpret personal status matters directly based on Qur'anic sources. Since Jordanian law still generally applies in the West Bank,(20) the sharia courts there utilize the 1976 Jordanian Law of Personal Status which is based upon the Hanafi school of jurisprudence.(21)

   Since it is this code which Palestinian decision-makers will have as their starting point for making future modifications in women's rights, an overview of its provisions is appropriate. The law determines that the age of legal capacity for marriage is fifteen for women and sixteen for men.(22) Under the qawama concept, a woman marrying for the first time must obtain the consent of her closest male relative from her father's side, regardless of her age.(23) A woman must also have a male guardian, or wali, contract the marriage, whereas a man can do it for himself. If there is no male relative, the sharia judge may act as guardian.(24) Further, Muslim women may not marry non-Muslim men.(25) Also, the marriage contract must have at least one male witness, and it takes the testimony of two women in lieu of one man.(26) The bride price...