The Palestinian minority inside Israel comprises of approximately 100,000 people who stayed in their homeland after the 1948 war and the establishment of the state of Israel. These Palestinians became citizens of the state of Israel and supposedly enjoyed equal rights as citizens. The Palestinian minority comprises officially three different religions Islam, Christianity, Druze. Fifty-two per cent of the inhabitants are women. The Palestinian minority is discriminated against in many different ways, but I will claim that Palestinians, especially women, suffer from legal discrimination affecting their lives in personal and family relationships, undermining their basic human rights in international law.
'Laws are made by men'
In debate about law, we are used to the idea that legal thinking is objective and that law applies to everyone. We assume that everyone is equal before the law and justice is blind to differences between the subjects of the law. But laws are the product of human thought and represent the limits of human perception, which is limited by human experience. Nothing influences the experience of law more than the culture of gender roles in society. Laws are made by men. Women have been marginalised and are usually absent from the process of legislation throughout the world.
Israel has the same human experience as the rest of the world. The Jewish State is influenced by the role of religion in law and politics. The mixture of Israeli laws has created a discriminatory environment against women, Jewish as well as Arab, in the field of personal status, family, marriage, parenthood, inheritance and other crucial issues in women's lives.
The Israeli Declaration of Independence states the principle of equality and rejection of discrimination against any group. This Declaration was one of the first constitutional documents that stated explicitly the prohibition of discrimination on the basis of gender. Such provision guaranteed equality for women in economic and political life and has become the basis of a myth of de facto equality for women in all spheres of life.
Israel has ratified three important international conventions:
- The Universal Declaration of Human Rights
- The International Covenant on Civil and Political Rights
- The Convention on Eliminating all forms of Discrimination against Women
These three instruments, ratified and adopted by the Israeli Parliament, are supposed to be a solid base for equality, especially for women. They include such fundamental rights as:
- Every adult man and woman has the right to get married and establish a family, without any limitation of race, citizenship or religious affiliation. They have equal rights in the commencement, duration and dissolution of marriage.
- The state parties to the conventions should take all the necessary steps to guarantee the equality of rights and duties of the two parties in marriage, during and up to the end of the marriage.
Alongside these provisions stipulating the guarantee of equality, Israeli law reinforces patriarchal norms by adopting the rules that were in place under the British Mandate. According to such rules the different religious communities (Jewish, Muslim, Christian) are governed in the realm of personal status issues by their respective religious laws. On the basis of these personal status laws Israel registered reservations to the international conventions and declarations concerning:
- the obligations on States to allow civil marriage in addition to religious marriage, as a part of the protection of the right of freedom of religion and belief,
- the governing of personal status issues in Israel by religion, with Israel reserving the right to apply religious laws in the case of any contradiction with any international provision.
The application of religious laws has institutionalised basic human rights violations such as:
- The subordination of women. This is furthered by the fact that the 'Law of Equality of Sexes' is not a constitutional law. It does not have the legal status that might give it the power to be upheld in all courts, including religious courts. Hence a religious court can easily and readily disregard it. As if this is not enough, the law itself states that it will not be applied in religious courts. Moreover, Supreme Court judges, with their power to interpret laws, have avoided handing down any rules regarding the application of this law in religious courts.
- The application of religious law, reinforcing the exclusion of women from the religious establishment, has prevented women from taking part in debating, constructing or interpreting legal jurisprudence of religious laws.
- The limitation of the right of marriage. People who are secular, or couples of different religions, are not able to get civil marriages in Israel. For them the solution is either to convert or to compromise their ideals and beliefs or to travel abroad to get married.
- The 'Law on Property' of 1973 guarantees to both spouses equal rights to all property acquired during marriage. By this law marriage registrars have to explain to the marrying couple the consequences of the marriage contract as far as their property is concerned. Any financial agreements have to be incorporated in the marriage contract. Marriage registrars, from all religions, shun this legal obligation upon them as it contradicts religious laws on property. Palestinian womean activists even found out that Muslim marriage registrars add a special provision to the marriage contract giving exclusive jurisdiction to religious courts in cases of conflict regarding the division of property. They add this provision without consulting with the couple.
- There are contradictions between the civil and religious laws concerning the prohibition of polygamy, age of marriage, and custody of children, leading to the violation of women's rights.
Civil legislation has developed over the years in the direction of equality for women, especially Jewish women. However, Palestinian women, both Muslim and Christian, have not been able to reap the benefits of such developments.
Exclusive authority of religious courts
Through the years a number of civil secular laws have regulated a number of personal status issues on the basis of the principle of equality. These are: property ownership, alimony, child custody, women's reproductive rights, age of marriage, and the prohibition of polygamy. However, women may be denied these rights because of the exclusive authority that religious courts have over marriage and divorce. They could also be denied their rights by men using their exclusive right of divorce to bully them into relinquishing some or all of their rights on divorce.
It is the duty of the law in any democratic state to eradicate all forms of discrimination and conditions that give rise to discrimination against any group in the population, or at least to open the door for those who want to get out of such conditions and to find solutions on an equal basis. As regards these specific problems dealt with here, the solution for women was to put an end to the religious monopoly over personal status issues. After all, the norms in the religious courts are defined by religious institutions (made up wholly of men) where there is no way for women to participate in changing these norms. On the other hand parliament does not have the authority to change these norms.
In 1993, a new law The Law of Family Courts was legislated for in the Israeli parliament giving to civil courts a parallel authority over personal status issues except marriages and divorce. And again, as a result of patriarchal politics, Palestinian women were denied the right of benefiting from this law.
The Israeli government saw in the traditional Palestinian leadership in our community a strong ally in certain political issues and an alliance with voters for the major Israeli party at the time the Labour Party. Hence the government excluded the Palestinian minority from the application of the law reinforcing the authority and influence of such traditional leadership.
We the Palestinian women and human rights organisations and activists saw in this law a path for those who wanted to escape discrimination. We started our struggle for a change in the law to include the Palestinian minority, Muslim and Christian.
Legislation empowers civil courts
After six years of struggle within our community and in the Israeli parliament, we managed on the 5th November 2001 to legislate the change into law. Today the doors of the civil courts are open for us in issues of custody, alimony, maintenance, guardianship and shared property.
Although the struggle was very long and tiring, throughout we watched the nationalist and traditional and religious leadership attacking us on different levels because of this change. Religious leaders, both Muslim and Christian, sank to the depths of making deals in the parliament with the right-wing religious Jewish parties. It was again evidence that patriarchy is a well-oiled machine working across the boundaries of nationality and religion.
There is no denying this law constitutes a step forward. It affords many women a chance to improve their conditions.. However, we believe that the problem will remain unsolved as long as jurisdiction on personal status is in the hands of religious courts. The problem will remain as long as there is no civil secular code or laws that guarantee equality between the sexes.
The next step forward for women and human rights activists in the Palestinian community in Israel should be to struggle towards legislating civil secular law on marriage a law based on the right to freedom of conscience and religious belief, on the principle of equality between the two sides of the marriage contract. We are not so optimistic as to expect that such change will be achieved in the next few years. We understand the political map in Israel and the obstacles put in our way by the powerful religious parties and movements on both sides, Jewish and Palestinian. Yet we have resolved to start the struggle for civil secular marriage law as the only way to guarantee our women's human rights.
