“Palestinian Female Judges Gavel Down Taboos”
Author: Ahmad Melhem
March 22, 2015
“For centuries, men in the Arab world have dominated important state positions, such as in the Sharia judiciary — which settles status issues, such as orphan care, divorce, custody and inheritance among others, based on Islamic legislation. Then Palestinian attorney Kholoud al-Faqih defied the “norms” and decided to open that closed door, becoming the first woman to occupy the position of Sharia judge and to walk down that ambitious path.
On Feb. 15, 2009, a huge surprise was in store for Palestine. President Mahmoud Abbas issued a presidential decree appointing Faqih to the Sharia judiciary. This constituted an unprecedented move in Palestine and the Arab world, as the position was generally monopolized by men.
Faqih told Al-Monitor that her judiciary journey started when she obtained her bachelor’s degree in law in 1999, then a master’s in law from Al-Quds University in 2007. In 2001, she received her license from the chief justice’s office, which granted Faqih her license to practice Sharia law, and she also received her license to practice civil law from the Palestinian Lawyer’s Union. She then worked as an adviser in several women’s organizations and as a defense attorney for women in legal and Sharia courts.
Regarding her interest in becoming a Sharia judge, Faqih said that she noticed during her work the absence of women in the Sharia judiciary. This prompted her to search for the underlying reason and prepare a legal and Sharia study regarding the obstacles, according to the 1976 Jordanian personal status law applicable in Palestine since the West Bank was administratively affiliated with Jordan. She could not find any legal or Sharia text forbidding women from working in the judiciary. So, she moved forward in her endeavors.
Faqih added that the judiciary position was restricted to men due to social norms that favor men over women in Arab societies. She submitted the study she had conducted to then-Chief Islamic Judge Sheikh Taysir al-Tamimi.
“When I told him I wanted to become a Sharia judge, he looked shocked at first,” she said, “but I immediately showed him proof that there is nothing in law or Sharia forbidding me from practicing this job, according to the four schools of thought in Islamic jurisprudence or fiqh and as per the Jordanian law applicable in Palestine.”
Regarding her ambition to become a Sharia judge, Faqih said, “I have noticed throughout my work the absence of women in the Sharia judiciary, which prompted me to investigate the reasons behind this and to carry out legal and Sharia research about the obstacles in this regard as per the Jordanian law in force in Palestine. I did not find any legal or Sharia law that prevents women from taking part in this process, which encouraged me to move on in my research.”
In 2008, Faqih participated in a judicial competition that the Sharia judiciary had launched to appoint judges. She saw this as a golden opportunity, saying, “I was the only woman among 45 men taking the test, and I passed with a high score.”
“After passing the exam, which qualified me to be a Sharia judge, I convinced my friend Asmaa al-Dhaidy to sit for the next examination as courts needed more judges. In 2009, Mahmoud Abbas issued a presidential decree regarding our appointment as judges, which made me very happy as I had more faith in women’s ability to succeed,” she added.
As a woman aspiring to occupy a seat that had been solely occupied by men, Faqih faced a road paved with challenges.
Faqih noted that some Muslim scholars — whom she refused to mention to avoid problems with them — even expressed their discontent in their Friday sermons and in newspaper articles where they stated, in light of opinions tailored to their own desires, that women should not occupy the position of a Sharia judge.
Faqih believes that judges did not want women to compete with them for a position that was theirs for decades and gave them social and economic privileges: Judges in Palestine are highly paid. However, ordinary citizens also rejected the idea of women judges, but for different reasons stemming from their cultural norms. This refusal was mostly spread among the elderly, be they men or women, who said they “didn’t want to be ruled by a woman.”
Despite these roadblocks, Faqih — thanks to her huge social influence and the position she occupied — was ranked 10th on Arabian Business’ list of the 100 most powerful Arab women in 2012 .
She expressed her surprise and joy at the ranking, saying, “I was thrilled because this ranking raised the name of Palestine in the Arab world, thanks to women. [In 2012], Palestine had earned the status of a non-member observer state at the UN.”
Faqih said that she thought she was given this ranking because she managed to open a door that had been locked for years, and changed traditions and habits that date back thousands of years. She noted that in 2012, she was classified among the 500 most powerful Muslim figures, while the website Scoop Empire ranked her second among the eight most powerful women in Palestine in 2014.
Faqih’s ambition did not stop there. She is seeking to obtain a Ph.D. in the near future. Her Ph.D. dissertation will focus on an analogy between Sharia and women’s rights laws, and she is waiting for an opportunity to join one of the Palestinian universities as she cannot pursue her studies abroad due to her family commitments and her little children. But her dreams seem to have no limits. “My ambitions are limitless. In the long run, I want to open more closed doors,” she said.
When asked whether these doors would lead her to the seat of chief Islamic judge, she laughed and answered, “Why not? I think an individual can be promoted and reach this position as a result. This is not wrong, but one needs to have the will for leadership.”
Apart from her ambition, Faqih is worried about stale laws that remain applicable, and she believes in the importance of a “legislative body that can cater to the needs of society.”
“The personal status law that has been applicable since 1976 in Palestinian society, despite all the developments, creates a huge gap between the law and reality,” she said, calling on everyone to implement a new, modern law.
Regarding what she aims to add to any new law that might be approved, she said, “Sharia law is quite delicate in all its components. It affects women and families primarily. Therefore, I think the main issues that should be addressed in the new law are child custody, especially for girls who have reached puberty. Currently, the law gives the father custody for his daughter although she needs her mother’s care and guidance at this important stage of her life. Moreover, women should be allowed to get a divorce in case the man is sterile.”
Faqih believes that her personal experience proves that women are able to handle all positions once they are given the chance. But they have to defend this chance and seize it, and this mainly depends on the woman herself.
Following is the text of the interview with Faqih.
Al-Monitor: Who is Kholoud al-Faqih?
Faqih: My name is Kholoud Mohammad Ahmad al-Faqih. I was born in 1977. I am a descendant of the [families from] villages depopulated in 1948. Following the exodus, I resided in the village of Qatnash, in the Jerusalem District. I hail from a 14-member family. I obtained my high school diploma with a final result of 92 out of 100. I have a bachelor’s and a master’s degree in law from al-Quds University. I am married and have two daughters.
Al-Monitor: What pushed you to study law?
Faqih: The encouragement of those around me and my family, due to my strong personality and ability to prove myself in all fields.
Al-Monitor: How did you become a Sharia judge?
Faqih: After my university studies, I was an apprentice lawyer, and the absence of women in the Sharia judiciary caught my attention. This had pushed me to look for the roots of this absence. I looked into both the legal and religious aspects that prohibit women from assuming this position. I did not find any legal limitation since we implement the Jordanian law. The latter stipulates that every capable adult with a bachelor’s degree in law or Sharia can assume the position, without specifying gender. Moreover, there was no religious limitation according to the four [schools of law in Islamic jurisprudence].
I presented my dissertation to then-Supreme Judge Sheikh Taysir al-Tamimi and told him that I wanted to become a Sharia judge. He was shocked since it was not a normal occurrence. I became more outspoken within social circles about my desire to become a Sharia judge. Everyone used to be surprised and take the matter lightly. Afterward, I obtained my civil and Sharia admission to practice law and I opened my own firm. I also worked as a consultant for a number of institutions and represented women in Sharia and civil courts.
In 2008, I presented my documents to become a Sharia judge along with 45 other candidates and I was the only female. I passed the test with high results. Since the number of candidates who passed the test did not meet the standards, another test was held. I convinced my friend, Asmaa al-Dhaidy, to sit for the test and in 2009, a presidential decree was issued by President Mahmoud Abbas, who assigned us as the first two female Sharia judges.
Al-Monitor: What were the challenges that you faced?
Faqih: The main challenge was the societal environment, whether citizens or clergymen. Some preachers said during Friday sermons that women could not assume such a position. Articles were published in newspapers about the subject, resorting to opinions that converge with their viewpoints. Some judges even refused it completely and did not accept that a woman could compete with them for a position that long was monopolized by men, and distinguished them [the men] on the social and economic levels.
Citizens also had objections, and in particular elderly people, who would say that they would not accept a woman’s judgment over them. At times, women also would refuse it because of their social upbringing. I remember one time at the central court of Ramallah, a woman walked in and when she saw me she said, “I do not accept for a woman to rule over me.” I believe that the limitation preventing women from assuming this position is cultural and social, and relates to customs and traditions. It is a “custom” that prefers males over females in Arab societies. This position was linked to bearded men wearing a turban and fez. Many citizens disapproved of the presence of women because they believed the position had a religious aspect and had to be assumed by a clergyman. Today, after five years, the surprise and disapproval are less, as though it became normal. Some bitterly accept it.
Al-Monitor: How did you receive the news about being named among the 100 powerful Arab women in 2012?
Faqih: To be honest, it came as a surprise, although it was not the first naming. I believe women with the biggest influence on society, who were able to open a closed door and change customs and traditions dating back thousands of years, were chosen. It was happy news — and I was particularly glad because I received it in December, days after Palestine was granted the status of a non-member observer state — because I raised the name of Palestine in the Arab World.
Al-Monitor: What has the title of Sharia judge added to you?
Faqih: This position exemplified the saying, “If there is a will, there is a way.” It also further entrenched my belief that Islam is a religion of peace, although some are trying to besmirch it; that the person should be determined; that women are whole. God gave women as much as men. Women have rights and are able to assume positions whenever they had the opportunity; they must fight for these opportunities.
Al-Monitor: What are your concerns?
Faqih: On the professional level, I am concerned about the old laws and our need for a legislative system able to meet the needs of society. The personal status law has been in use since 1976 despite the developments witnessed in society. This may lead to a gap between the law and reality, particularly given that the Jordanian lawmaker who drafted the law was a male and did not take into consideration the needs of females. This is why we are in need for a new personal status law.
Al-Monitor: What prevents the passing of a new personal status law?
Faqih: Many studies and draft laws were proposed by legal and feminist institutions. The Sharia judiciary agreed on the majority of the articles, which were all inspired by Sharia. However, the legislative council is paralyzed and has yet to pass it despite the desperate need for it. As far as I know, the supreme judge, Mahmoud al-Habbash, is striving to pass the law by presidential decree.
Al-Monitor: If you had the chance to add articles to the new law, what would they be?
Faqih: There are some important and sensitive issues that I would address, such as custody and divorce. In other words, I would add an article allowing the women whose husbands are impotent to get a divorce — an article that is not mentioned in the applicable law. Moreover, the current law does not address the issue of custody, which both parents should share in case of separation to achieve the best interest of the child. Having custody over a female child, especially after they reach puberty, is a very sensitive issue as the father, according to the law, becomes the legal custodian since the girl represents the honor of the family. However, at this stage, the girl would be in desperate need for her mother for guidance.
Al-Monitor: What are the issues that oppress women the most?
Faqih: I believe the issues that oppress women the most relate to inheritance, with all the ensuing economic control. Women are blackmailed by customs and traditions and sometimes the names of the sister or the stepmother are stricken off legal documents to deprive them of inheritance. There is still resistance to acknowledging the rights of women.
Al-Monitor: To what extent does your ambition go?
Faqih: My ambition has no limit. My short term goal is to obtain my Ph.D. in law. For the longer term, I am thinking about opening closed doors.
Al-Monitor: Such as becoming the supreme judge?
Faqih: There is nothing wrong with it. I believe any person can assume this position after climbing the ladder leading to it. It is not wrong for me to become the supreme judge, but such a matter requires a presidential will.”