NUMBER OF THE WEEK: May 17, 2009
New female judge transforms Islamic court
Khouloud el-Faqeeh is part Judge Judy, part Sunday School teacher.
By Ilene R. Prusher
Ramallah, West Bank - Khouloud el-Faqeeh has shattered the glass ceiling of Islamic jurisprudence.
After years of pushing to break into the all-male ranks of sharia judges in the Palestinian territories, she finally secured a post after scoring among the best – along with another woman – in a recent test for new jurists. They are widely considered to be the first female sharia judges in the Middle East.
Now, Ms. Faqeeh is setting a new tone in her Ramallah courtroom, where defendants are often shocked to see a woman on the bench. With a style that's part Judge Judy, part Sunday School teacher, she's on a mission to change her society, case by case. But sometimes, even the most progressive intentions won't overcome powerful social forces, such as those driving Miryam Abed-Nabi, a newlywed who came to court recently to finalize a divorce. Her husband – Fahmi Awadullah, a man twice her age – took her as a second wife just a few months ago. But the marriage infuriated his adult sons, who worried about their portion of his inheritance.
Because his new bride was rejected by the family, Mr. Awadullah is divorcing her, and must, according to their contract, pay her a lump-sum alimony of 6,500 Jordanian dinars ($11,050). He has paid her only half of that, but wants her to sign on the dotted line today, absolving him of any further obligations.
Ms. Abed-Nabi, who in her mid-30s is well past the age when most Palestinian women can expect to marry, walks into the courtroom with her eyes trained on the floor.
"There are institutions which will assign a free lawyer to you," Faqeeh says. Abed-Nabi nods.
"Fight for your rights," the judge adds, sounding more like an advocate than a neutral arbiter. Abed-Nabi shrugs. Her elderly father, here to give his permission for the divorce, explains: "We just want to finish with this."
In their last court appearance, Awadullah came in with two of his sons, who tried to intimidate the judge as well as Abed-Nabi and her family.
Faqeeh wants to deny Awadullah's right to divorce until he pays the full amount owed Abed-Nabi as part of their contract, so that he and his sons would be "taught a lesson." But, reluctantly, she formalizes the divorce.
"If she has her father with her and they say they want to finish with this, I have to comply," says a disappointed Faqeeh. Abed-Nabi leaves in tears.
But the judge doesn't let Awadullah go without a sermon."I advise you to remember that you have to worship God by being kind to other people," she tells him. "Why didn't you give her full rights? Would you like people to treat your daughters the way you treated [her]?... You have breached Islam with this woman.... You can go and pray to God, but I wonder how your worship will be received in light of this." Appealing to his conscience from a religious standpoint is part of her mandate, she feels.
While many associate sharia with extremist regimes, it is a complex system of jurisprudence used throughout the Muslim world – though with deeply varying interpretations. Even in the officially secular Palestinian Authority (PA), most issues of a Muslim's personal status – from marriage to inheritance – are decided before a qadi, or judge.
Which is why Faqeeh wanted nothing more than to be a qadiya. She pressed the chief sharia judge.
"In Islam, it says a sharia judge has to be a Muslim, rational adult" – not necessarily a man, she explains between cases. "Whenever I would discuss this with the chief judge, he would say, 'This is tradition.' "
"I didn't buy it," says Faqeeh. "I'm a legal person, and, to me, legal issues are stronger than tradition."
Top in her class at Jerusalem's Al-Quds University, Faqeeh started her own practice and quickly drew the attention of judges. They offered the outspoken advocate a position at the prosecutor's office. She turned it down. The chief sharia judge, Sheikh Tayseer Tamimi, politely suggested she work for the civil courts. She refused. "To me, the challenge was to be a sharia judge," she says. "I wanted to ... break the deadlock."
Mr. Tamimi now says he's "proud" of her appointment. But not everyone approves. Sheikh Hamed Bitawi, an elected Hamas representative who serves as head of the Association of Islamic Scholars and Scientists, says there are two schools of thought on the issue: that every position but that of a caliph is open to women, and that women are too emotional to make legal decisions – as judges or as witnesses.
"I am of the second view because I consider women to be gentle human beings who should not be subjected to difficult situations or difficult decisions," Mr. Bitawi says. "They cry easily, and hence their judgment is tainted with emotions. Moreover, lawyers are difficult to deal with and people who come to courts are angry and violent."
In October, Tamimi advertised a qualifying test for sharia judge candidates. Of 45 Palestinians who took the test, nine passed – two of them women. Faqeeh was one of the highest scorers.
On the bench only since March, she still gets shocked or amused reactions from Palestinians, who are used to seeing a man in her seat. Women are at first pleasantly surprised, but some leave disappointed that she didn't bend the rules for them.
But in fact, she won't bend the rules for anyone. Some defendants on a recent day didn't take the need for two male witnesses seriously, trying to pull strangers from the hallway.
"If you bring two witnesses who don't even know the name of your daughters, how can I rule on something like that?" Faqeeh bellows at one man, who works at the headquarters of PA President Mahmoud Abbas. Often, she says, government employees expect special treatment, which she refuses to give – just as she refused to accept discrimination from the government, a stand Tamimi echoes.
"The PA institutions do not discriminate in job opportunities, and the stereotype that Islamic institutions are against the rise of women professionally is wrong," says the chief justice. "The presence of a woman sharia judge will enrich the institution of the courts, especially when it involves a woman whose academic as well as personal qualities make her perfect for the job.... I have full faith in her capabilities."