Why Islamic law is official in Israel

14 February 2008

By By Anshel Pfeffer, Jerusalem

Not only is sharia law officially recognised by the justice system in Israel in everything regarding the personal status of Muslims, but the judges of the sharia courts are officially appointed by a joint ministerial-parliamentary committee and their salaries paid for by the state. Ironically, this arrangement originates from the days when Britain was the Mandate power in Palestine.

Most matters of personal status, especially marriage and divorce, are ruled in Israel by religious courts. For three religious groups, Jews, Muslims and Druze, there are official, state-appointed courts, who rule on these matters. For Christians, there are private ecclesiastical courts whose rulings are recognised de facto by the civil authorities.

The system began with an Act during the British Mandate, under which all recognised religious groups were allowed to deal with matters such as marriage, divorce, inheritance and adoption in their own courts. After 1948, the system was continued but only in matters of personal status. By law, the sharia courts have exactly the same status as the rabbinical courts.

“It works quite well,” says Sheikh Badir Raed, who often appears before the sharia courts on behalf of Muslim clients in divorce hearings. “The Israeli authorities, the police and social services will almost always respect an order issued by the sharia court. I am currently writing a book on this system in Arabic, because I think that this is the best example of a Muslim minority getting its religious rights while respecting the law of the land. The only problems are when the civil law is different from sharia law as in the case of wills and for security reasons when we are dealing with a couple, one of whom lives in the Palestinian territories.”

But Dr Aviad Hacohen, a constitutional law expert from Hebrew University and the head of the Mosiaca centre on state and religion, believes Israel’s system “has two main shortcomings.

“The first is that it creates a twin-track system of religious and civil law that are not always compatible.” Over-ruling of the religious courts by the Supreme Court is not uncommon, and in 1992, in the landmark case Bavli v Bavli, the Supreme Court ruled that civil courts take precedence over religious courts.

“The second shortcoming is that the system isn’t good for everyone. It can’t deal with mixed marriages, or those who are not recognised as belonging to a religion.”

Such arrangements between religious courts and the civil authorities are impossible in countries like the US and France, where there is a strict division between state and religion, but they exist in Germany and Belgium where some religious groups are allowed to rule on such matters.

In the Canadian province of Ontario, Jewish community leaders were stunned when suggestions to introduce sharia courts resulted in a curtailing of the powers of the beth din.

Jewish courts had been conducting binding arbitrations in family law since 1991. In 2003, a Muslim lawyer from Toronto announced the establishment of a “sharia court”, and two years later, the Ontario Premier announced an abrupt end to religious arbitration of family law matters, saying: “There will be no sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians.”

The beth din can still rule on personal and business disputes and grant gets.