Seminar of Toledo “Equality and rights in the Mediterranean”

Palestinian lessons and perspectives

By: Maha Abu-Dayyeh Shamas, WCLAC.


The violence of the occupation and the situation has in time reflected itself on the Palestinian family. And as women movements noticed we needed to address the whole issue of violence in the private and public sphere. Our organization - Women Center for Legal Aid and Counseling- was established before Oslo. Post Oslo we had to adjust our agenda.

Our work started with service delivery helping women victims of violence and abuse and giving them basic information about legal rights according to the existing law which is family law, which is Sharia (we couldn’t change anything about that).

There were no other rights because there were Israeli military courts that are only related with so called security matters, at least women really needed to know about rights in the family law, and we did a lot of legal literacy.

Post Oslo of course, there was created a Palestinian National Authority that had the power to legislate and we knew that means we had to address the whole issue of legislation, because the state is the one to oversee the development of legislation and also the implementation of the law. And our organization has evolved to meet the growing needs of the Palestinian community so we were always moving along the evolution of the Palestinian political society.

And now our organization does research in terms of finding out where our discrimination lies, we do training, community work and still services. We also work lobbying and advocacy, all in the area of law, human rights, protection of women in the public sphere and in the private sphere.

I want to go to this map, just try to imagine the Mediterranean Sea, and see that all of Palestine is strategically located. Behind it there are Jordan, Syria, Lebanon, Iraq and down to the Gulf and Arabia where most of the oil resources are. Post WWI - all of you know a little of history- Middle East was divided up by colonizers, and new territories were drawn and divided up among colonial powers. Having said that and how this is related to women, is because the modern state was established in the middle east in this time, and now the state which is the basis of the modern UN system, is responsible for the well being of their people, it’s responsible for the development of legislation, its responsible for service delivery etc.

Now when you look at Palestine, where is the State and who is responsible for the Palestinian? Now this map shows well the complexity of the Palestinian situation. Culturally, we belong to the larger Middle East, that doesn’t have only Muslims, but also Christians, mostly in Syria, Lebanon, Jordan, Palestine and Egypt. There is a large Christian community, there are also a lot of Jews in Iraq and northern Africa. This also has to be understood in the context of social movements in the country, there is no homogenous social context, there is religious diversity, but the political situation has also created cultural diversity because Palestinians were dispersed all over the world, in the Arab world, in America, Latin America, people came back and they introduced their own differences. And that’s who we are, that’s the Palestinians, and we are a mixture of everything, that’s the reality, and don’t get misled by the veil that you see on TV, because we represent all of the experiences of the Arab World, Latin America and Europe.

In terms of who we are legally speaking, if you look at the map, you see that Israel was created and has enforced its jurisdiction on that part [of the map, ndlr]. Palestine or whoever is responsible for the well being of Palestinian people is supposed to be in the green area [of the map, ndlr]. Of course the Palestinian Autority has no power, has no jurisdiction over its people, and look at this last map, if you have court order dealing with custody of a woman living in Jerusalem married to a man in the West Bank, you have to go through Israeli channels, that means there has to be coordination. And of course Israeli coordination doesn’t work because when it doesn’t involve “security” matters.

What has happened to our society is that in the social area we had to resort back to traditional leadership because there was no way to enforce the law. Let me explain to you. We have 3 systems of law applicable: in Gaza it’s Egyptian law and Palestinian family law, in the West Bank it’s Jordanian family law and Jordanian civil law, and in the Jerusalem area it’s Israeli law. So any lawyer as representative of Palestinians, who wants to protect the right of the Palestinian community and families, has to know all 3 laws. He has to get cooperation from 3 judicial systems. That we can manage, but who gets to apply which law in which area is another story.

This is where you have to understand the complexity; we are in a state, frankly speaking, of lawlessness. At the civil law level, because there is no way in that situation to apply the law, there cannot be any Palestinian jurisdiction and when it comes to women, we have lawlessness because we live in a conflict, because Israel doesn’t respect international law so there is lawlessness at the international law level. People are pushed out, put in ghettos, etc, and all sorts of war crimes are committed with impunity, so there is lawlessness at international and human rights level; but there is also lawlessness at civil law level, and there’s nothing any Palestinian Autority can do about that, and now money is poured to improve the judiciary, but this is unattainable, if a judge can’t come because of the closures! A panel must be composed of 3 judges, but they cannot meet so trials are constantly postponed, because judges cannot meet because Israel holds them at check points. So there is no way to improve judiciary in those conditions. And there’s always going to be room for parallel systems based on traditional patriarchal tribal functionaries, who will be better able to exercise and give rights to people.

So in our work we must use both systems. We’re working at one level to protect women, and at another level enforcing patriarchy throught this system, it is schizophrenic.

Now the political situation is complicated, because of the conflict, Palestine is divided in terms of jurisdictions and applicability of laws. When it comes to women, there are also 2 systems of law: civil and family law, and family laws all belong to traditional court system. And civil law and other law systems belong to the civil courts.

Family law has its own system of judiciary, appeals, they are all based on religious leaders, have their own language; Muslims have their own court, each denomination of the Christians have their own court (in catholic courts, they still apply Roman catholic law that is not even applied in Italy since centuries; Greek orthodox (the majority of Christians) apply Byzantine law (600 years old) and some articles go back in the past (like one that says that if a woman is seen bathing with a man it is cause for divorce... how do we do now with modern mix swimming pools?!); Protestants have their own court...There are 6 Christian courts and one Muslim; so lawyers go to 7 religious courts to serve a community of 3 millions people, moreover they have to navigate between Jordanian and Israeli civil law systems.

When talking about rights in a situation where there are no economic, social or cultural rights, how can you have political and civil rights? If you have no power to own property, if you cannot work, you’re constantly dependent on humanitarian aid, on extended family, how can you have women to stand up and fight against patriarchy? Patriarchy is what is preserving our situation. It’s a very difficult situation, and tribal relations, extended family are what are saving us, keeping us alive. Of course women here are going to be further victimized, the group is more important, and women rights are very difficult to fight for in a situation of conflict because the group survival is more important than individuals.

The sacrifice of the individual is experienced here in Palestine, with women killed because they defied family rules (I refuse to use the term honour killing because there’s no honour in that killing, I call it woman killing because she defied family rules).

I don’t think that you can look at law and legislation and the State or lack of State as isolated, you can’t look at health rights, educational rights, election laws, without looking at the larger context. We still have to deal with that, how do you balance local and global, how do you build strategies for reform and protection of women in situation of perpetual conflict and changes in the political situation and changes of the political boundaries. I think we are a microcosm now in Palestine but these changes are moving to the whole Arab world, other countries will face the same situation.

When we talked about family law, I have spoken about cultural plurality in Palestine. The idea for family law is to have a law for everyone in Palestine. However when you’re in a situation of conflict, where Jerusalem in threatened, where only institutions that can protect us are religious, whether there are Muslim or Christian, do you find the reasons within you to fight these institutions, to weaken them when they’re serving a political role in Jerusalem? When Israel closed the borders of Jerusalem, that no people from the West Bank can come to pray, it becomes a political act to come pray to the mosque. Me too, when I feel I’m getting very angry I feel like I’m going to wear the veil and go to the mosque to defy them. You cannot underestimate the power of that. Religious practice has become a political practice in Jerusalem and around, and this has empowered fundamentalism, it’s what has given them strength, and as a secular feminist organization we always have to think what the forces are and the issues, and how we can balance things out.

We don’t want to lose connection with our society, but we don’t want to surrender to reactionary ideological forces in the society. And given the turbulent political situation how do you balance that?

I have to admit that we had to give up the dream of a family law for all Palestinians, instead now family law enforced by religious authorities is coming back with strength, we decided we would take issues rather than give up our principles, so we said “Ok: In marriage, whether it is Islamic or Christian law that is being discussed, this is what marriage should be. These are our principles about marriage. In divorce, whatever the law, we’re not going to change the system of religious courts now; we have to fight at the level of constitution. If we win the battle to defeat in the constitution article 2, which says that religious courts take over family affairs, then we can think of a family Palestinian law, if not we cannot even think about it. So our position is that marriage should be a series of principle like age, custody, etc. Right now we’re not fighting for inheritance because it’s a battle we know we won’t win now, and Christians will defeat us even before Muslims, because this is a cultural thing, so for now we’re not even going to fight that battle.

But we’re addressing 5 issues: marriage, custody, separation, divorce, and issue of division of property during marriage, and irrespective to what law, what church, what religious denomination, when the Palestinian National Counsel will discuss these topics, we’ll say “this is our position on these matters”. And this is the only way to maintain our principles and our arguments for legal development.

On the other side, we feel like we can fight for family laws, but it will be useless as long as you have criminal laws that criminalise for example adultery: rather than adultery being grounds for divorce, it’s a crime. And the one that can be accused of adultery is always a woman, not a man. All of you also know about the whole issue of mitigating circumstances for men who killed their daughter or sister or cousin so that they spend little time in jail, so it is like a carte blanche given to males who kill their female relative, if she breaks the patriarchal rules of the family.

So even if you fight for equality in elections, if you have such criminal laws that frighten women, that intimidate women, how can you have freedom of choice? So I don’t look at it in isolation, you have to fight for equality in a package of laws, because law is integrated, and we cannot fight for election laws, without fighting for family law, and you can’t fight for family and election laws without fighting for equality in labour laws and protection of women’s rights in labour. Because I’ve heard this morning about women’s right to work. Fine, but she can be given all the safe contracts in the world, for example women who are teachers at the university, but if they don’t give their salary at the end of the day to their husband they’ll be beaten up, although they have fix contract and all. So if the whole system doesn’t promote respect of individual women and their rights to own property, to administer their property, to make free choices about relationships, marriage etc. I think we’ll be continually addressing pieces of the problem but not the whole problem.

And in terms of our strategy, we feel that we deal with all issues of laws, but focusing on family law and criminal law, and we’ll definitely help other organizations to lead the battle on other laws (labour, criminal, health rights, etc.).

We also have to be vigilant because sometimes in our best intention wanting to promote women, the opposition or reactionary people take over our language, take over our methodologies. And I want to underline what my sisters have mentioned, that fundamentalists have used the issue of equality and the access of women in the election process to put forth their own women candidates to take over, so we have to be very careful and very clear in our discourse.

I think this is a very important issue for us all Arab women, what made us from the left lose grounds to the fundamentalists is that we weren’t clear in our discourse. Because we are also defensive because of the western onslaught on our culture we started talking about cultural specificity, and our cultural specificity is related to our religion. So maybe we started to give lift service to our cultural specificity and our religion at the expense of the principles of equality.

So we need to find a language, a discourse that respects our own culture but also that doesn’t surrender to the cultural specificity argument, and undermine the integrity of the female individual. I think we can do it if we use the right to development discourse.

The right to development discourse is a language that everybody can understand, and this is a discourse that we can confront the fundamentalists with, because they cannot deny the whole discourse of development for men and women, and this is something that we are developing in Palestine, rather than falling in this very tricky wave of Islamic religion, and all progressive interpretations of Islamic religion. I think all this is very tricky, because we would all have to become experts in the Sha’ria before we can discuss about the human rights of the woman. I think that if I were 21 years old I may want to study Sha’ria and look for a progressive interpretation of the Koran, but it’s not for me, and this is not a language I want to speak, neither for the Christians nor for Muslims, because it has its limitations and we know it, from our experience dealing with Christian, Jewish and Muslim fundamentalisms.

If we can focus our discourse, when we look at human rights discourse, right for integrity, right for development, right to make a free choice, I think this is language that most people will understand and we will not be taken hostage of the more difficult language of religion. However, and I’ll finish with this, these are the issues and dilemmas that we are facing in promoting legislative development in a context of perpetual of political conflict and changing political situation. I think this is the local aspect, but at global level there is a regression too.

I think we have somehow surrendered to the hegemony of the powerful US discourse, the globalization discourse, and we think that maybe we’re being extreme if we speak the human rights language and if you’re talking about people in Africa, north Africa, Middle East, then you’re not realistic, because we are in a new age now, we have to speak about Millennium Development Goals, globalize our language etc. I really think we should go back to the basics.

Why do we have a revolution in France now? [November 2005, ndlr] This goes back to the fact that if you remove the dignity and integrity from the human being, the natural reaction of the human individual, and from the individual to the collective, is to revolt. It is a matter of time. But there is a human nature for freedom, to survive with dignity, and there is no way to stop that force. I think it is here around us, all over, and I think that what we have to do is to find frameworks to channel it and a language to use with that framework.

For the Palestinian experience, I end up with this, and hopefully I’ve put some challenging thoughts into your minds, and I open for the rest of my colleagues to make comments. Thank you.

Maha Abu-Dayyeh Shamas

Women Center for Legal Aid and Counseling - WCLAC, Palestine.

Intervention on November 12th, 2005

Seminar on “Equality and rights in the Mediterranean”

Toledo (Spain).

Organized by ACSUR Las Segovias in collaboration with:

Spanish Agency for International Cooperation, Asociaci Catalana per la Pau, Mujeres en red, Plataforma por los Derechos Humanos de las Mujeres, and Junta de Comunidades de Castilla La Mancha.

8th June 2006


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