Women and the Constitution: Personal Status and Family Court System
Personal Status and Family Court System. Hosting Sheikh Saleh Abu Zeid, Judge of the High Family Court, and Judge Sumoud ad Damiri, Head of Personal Status Prosecutor’s Office, the conference brought together distinguished academics, lawyers, and representatives of civil society organisations. The conference comprised three sessions: (1) Potential Role of the Constitutional Court in Striking a Balance between Substantive Provisions of Rights and Freedoms, Personal Status, and Family Court System; (2) Recent National and Regional Developments Introduced to the Personal Status System; and (3) The Current Context of Personal Status and Family Court System and Desired Prospects of Development.
Having thanked the audience for their participation, IoL Director Dr. Ghassan Faramand especially welcomed and highly appreciated Judges Abu Zeid and Ad Damiri for their contribution to the conference. According to Dr. Faramand, partnership between justice sector actors is of particular significance to facilitate a discussion of personal status and family justice. These matters greatly impact the Palestinian society from across the spectrum. Dr. Faramand explained that this conference was organised in the context of many positive changes within the Palestinian family court system. Most notably, a new Chief Justice was appointed. To achieve the greatest possible benefit, Dr. Faramand hoped that the conference would engage a fruitful discussion and contributions.
In the first conference session, Dr. Feras Milhem highlighted importance of judicial oversight on the constitutionality of laws to ensure protection of human rights and consolidation of legitimacy. In his presentation on “The Role of the Constitutional Court in Striking a Balance between Substantive Standards of Human Rights and Provisions of the Personal Status Law”, Dr. Milhem made a briefing note about jurisdiction of the Constitutional Court in Palestine: “This Court is competent of disposing constitutional challenges against laws, bylaws and decisions, including rulings entered by family courts. Most commonly, Arab constitutional courts focus on formal aspects in the dismissal of constitutional challenges against provisions of, and rulings based on, the Personal Status Law. In contrast, the constitutional judicial practice in Egypt strikes a balance between constitutional norms of human rights and freedoms and provisions of the Personal Status Law. This mechanism is informed by a distinction between holistic and partial provisions of the Islamic Law (Sharia).
Presenting on “Constitutional Values, Human Rights, and Principles of Sharia”, Advocate Mohammed al Khader addressed the different and inherently contradictory concept of constitutional values and human rights on the one hand, and Sharia principles on the other. Modern democratic systems involve a set of primary values, including freedom, equality, human dignity, rule of law, democracy, etc. However, these concepts are unclear and hard to integrate. At the same time, a variety of interpretations and viewpoints address the nexus between these concepts.
The Legal Researcher Abeer Dirbas addressed the structure, formation, powers, jurisdiction, and historical development of the family justice system. In her intervention on “The Administrative Relationship between Family and Regular Courts”, the researcher Dirbas went over the problematic working relationship between regular and family court systems, highlighting the determinative effect of family court rulings in relation to regular courts.
The second conference sessions was launched with a presentation on “Developments in the Separations of Marriage in Palestine: Khul’[1] and Separation due to Dispute and Discord as an Example”. Judge Saleh Abu Zeid thanked the IoL for inviting him to the conference, stressing and commending the positive working relationship between the High Council of Family Courts and IoL. Reviewing developments introduced to personal status matters, Judge Abu Zeid noted that the High Council of Family Courts published the Circular on Khul’ and Circular on Separation due to Dispute and Discord in 2012. These have alleviated burden on women at family courts. According to the first circular, a wife with whom marriage has not been consummated can apply for Khul’. Under the latter, separation due to dispute and discord is now easy to prove, allowing a room to the family court judge to use discretionary power. Earlier, family court judges were confined to admitting certain pieces of evidence to establish an entrenched dispute and discord between spouses. In conclusion, Judge Abu Zeid expressed his hope that more developments would be introduced to the Draft Personal Status Law, which should trigger an extensive public debate.
Addressing “The Current Context of the Personal Status System and Desired Developments from the Personal Status Prosecution’s Perspective”, Judge Sumoud ad Damiri reviewed the concept and historical development of Personal Status Prosecution in Palestine. Currently, the personal status system is in a stalemate due to differing opinions and dysfunctional Palestinian Legislative Council (PLC). According to Judge Ad Damiri, the High Council of Family Courts has issued informed circulars to cope with this stalemate. Also, family courts have expanded interpretation of provisions of the Personal Status Law.
In his presentation on “Comparative Developments and Approaches to Personal Status Matters”, Dr. Mahmoud Dodeen made an overview of developments introduced to Personal Status regulations in Arab countries, including a comparison between these enactments before and after the Arab Spring took place. Not only has the situation remained as it was, but it has worsened further. With the age of marriage not raised, Tunisia and Morocco were the only exceptions. By contrast, some Arab countries have even allowed marriage at a lower age than it had been prior to Arab Spring uprisings.
In her intervention on “Development of the Personal Status Law in the 1948 Palestinian Territory”, Ms. Huda Rouhanna presented the legal framework of personal status matters and family justice practice inside the Green Line. Both religious courts and family courts examine personal status cases and disputes. According to Ms. Rouhanna, Palestinian citizens of Israel are challenged by current Israeli procedures. Without any amendment, Israel has maintained enforcement of personal status regulations of each denomination.
In the third conference session, Advocate Luna Eirkat reviewed the concept of the right of inheritance, assessing how much Palestinian women enjoy this right. Presenting on “Women and Inheritance: Reality and Developments”, Advocate Eirkat stressed significance of women’s access to hereditary rights and made an overview of the regulatory framework of inheritance. When they access their right of inheritance, women are challenged by social, legal or judicial impediments, ultimately depriving women of their hereditary rights. To protect women’s right of inheritance, Advocate Erikat made a set of recommendations, including amendment of the current legal framework, launching of public awareness campaigns, and upgrading of the organisational framework. Also, a specialised department will be established to process inheritance cases.
Addressing “Alimony of the Wife and Minors”, Dr. Ikram al Qeisi explained the concept of alimony, including alimony of the wife and minors. Unveiling the current context of alimony at family courts, Dr. Al Qeisi stressed that amounts prescribed as an alimony for wives and minors did not match current living standards. Dr. Al Qeisi recommended that alimony be revisited to ensure it satisfies high cost of living.
In her presentation on “Women’s Access to Justice at Family Courts”, Advocate Reem al Butmeh presented percentages of women’s access to justice at family courts. Women encounter several difficulties, including current litigation procedures. According to Advocate Al Butmeh, the role informal justice providers play in family disputes has given way to family courts.
Finally, in his presentation on “The Concept of Family between the Personal Status Law and Other Regulations”, the Legal Researcher Ammar Jamous addressed different and variant concepts of the family and family members within a single legal framework. Creating tensions, this concept also varies between theory and practice.
[1] Divorce in return for a monetary compensation to be paid by the wife to her husband.
