OPINION: Israel’s Islamic courts are example of Sharia adapting to modern demands
By Lizzie Teixeira and Benedict Greening, interns at Quilliam Foundation.
Israel’s Sharia court system is more efficient than the civil law alternative while it is also evolving in conjunction with the demands of an ‘open, modern and developed’ society, said Qadi Iyad Zahalka during an event held at the Quilliam Foundation on September 17.
The Israeli judge also argued that the British government should incorporate the UK’s Sharia Councils into its legal system, noting that such a step could aid ‘integration’ while ensuring Muslims do not feel ‘persecuted’.
Israel’s religious courts feature as part of the judicial system with applicants having the option of choosing whether to lodge cases in the religious or civil courts.
Qadi Zahalka said Sharia courts in Israel were informed by the Hanafi legal school of Sunni jurisprudence, while laws in place since the days of the Ottoman Empire also remained in force.
“We have Israeli law which is based on [British] Mandate law which was based on the Ottoman law. This is the history of the Israeli legal system.”
Qadi Zahalka explained that Israel’s Sharia, Rabbinical and Christian courts were institutionalised under the country’s Ministry of Justice.
However, he said challenges could arise when civil law and religious law came into conflict.
If the outcome of a religious ruling transgressed the jurisdiction of the civil court, or if it conflicted with basic human rights, Israel’s Supreme Court could ‘dissolve’ the decision if it was decided outside of the religious court’s jurisdiction or in contravention of ‘natural rights.
“It is not a solution to ignore [civil] law,”told the audience. “There is a price.”
He elaborated on this point by referring to the issue of child custody, in which civil law dictated that decisions should be made ‘in the best interests of the child’ despite the fact that religious law specified custody rights should depend on the child’s age.
“Sharia and civil law both have the same goal – to achieve the best benefit of the child. We will adjudicate cases of custody according to civil law but we will give an Islamic interpretation to the question,” Qadi Zahalka said.
The challenge of renewing Sharia to meet modernity’s demands he explained, lay in doing so within Sharia’s own terms and using the Islamic legal tradition of ijtihad (or independent interpretation).
For instance, Qadi Zahalka explained, the application of ijtihad in divorce cases in Israeli Shariah courts has led to reforms in legislation.
This meant a qualified Qadi has the power to arbitrate in divorce matters and could separate a couple – even if one of them refuses to be divorced – provided that the Qadi determined there to be an irreconcilable difference.
On the question of ijtihad Sharia an interesting contrast was drawn between Israeli and Palestinian Sharia.
While Palestinian courts were run by the Palestinian authority, and therefore subject to governmental changes in legal rules, Qadi Zahalka explained that Israel’s courts relied more heavily on ijtihad by Qadis.
This gave Israel’s Sharia courts a juridical flexibility that allowed them to adapt to changing circumstances, while remaining true to the framework of Ottoman law and the Hanafi tradition.
Qadi Zahalka also argued that Israel’s Sharia courts were seeing larger numbers of applicants, including an increasing number of women because they were viewed as ‘more efficient’ than the civil courts.
Meanwhile, Sharia courts could also be more effective than civil courts in terms of securing justice for financial maintenance for women after divorce.
He said: “Qadis understand the language, the mentality, the traditions, the total environment of [Muslim] couples and can be of more benefit.”
When the topic was opened up for discussion with the rest of the group, some connections were drawn between Israel’s religious court system and Britain’s Sharia Councils, which are not officially recognised in law but of which there are between 80 and 100 in various parts of the country.
Qadi Zahalka argued that Sharia Councils play an indispensable role in Britain because civil courts do not concern themselves with religious marriage or divorce, and will only proceed with civil divorce procedures if religious divorce procedure is completed.
As such, they provide a vital role in complementing and completing the case resolution process.
He said: “I think that if the legal system recognised Sharia it would be to the benefit of the community here. They would not feel persecuted and it would also lead to more integration of the Muslim community into the British public sphere.”
However, Quilliam’s Senior Islamic scholar Dr Usama Hassan noted that many Sharia Councils in Britain take a ‘very conservative view’ while the development of ‘parallel’ legal systems in the UK could lead to ‘messy outcomes.’
This, for example, could lead to a woman who wanted a religious divorce not being granted it because the man in the relationship did not agree, despite it being the case that she had a right to it under ‘the highest law of the land’.
Dr Hasan said: “It seems that one law for all is necessary and we should aim to unify civil and religious courts.”
The panel were also interested to find out whether women were allowed to become Qadis in Israel.
Qadi Zahalka replied that Muslim scholars had ‘different ideas’ about this question.
“They don’t agree all the time on the issues but in the Palestinian Authority there are two women who are appointed as Qadis in Sharia courts”
Qadi Zahalka said that it is a rigorous process to become a judge in one of Israel’s Sharia courts, involving at least six years of law background or background in Islamic study.
Successful candidates, who are selected after examination and interview by a nine-member Knesset committee with a majority of Muslim members, must also pledge allegiance to the state of Israel and profess a commitment to fairness before their appointment.
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