A Female Qadi Appointed in the Sharia Court: Religious Law and Public Opinion

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Hana Mansour-Katib, the first female Qadi in Israel. Photo Credit: Eliyahu Kamisher.

In April of 2017, the Qadi selection committee of Israel’s Sharia Court made a historic move: it appointed the first woman to the position of Qadi [religious judge]. 

The appointment of a woman to a judicial position in the religious court system is a particularly sensitive issue, especially in light of religious scholars’ stance on this issue. Despite the modern legal and public norms that advocate gender equality, and the fact that all discrimination against women is considered a violation of public regulation, most clerics oppose the appointment of women to these positions. The issue has been discussed in different forums, including in bills and laws legislated by the Knesset. It has also been discussed more than once in the rulings of the Supreme Court and has sparked public debate. Naturally, it is an issue which arouses sensitivities.

There is divided opinion on the matter of the appointment of a woman to a judicial position in the Sharia Courts as well. For example, prior to this, there was a heated dispute regarding the appointment of a woman to the position of arbitrator in separation and divorce proceedings under section 130 of the Ottoman Family Rights Law. Nor is there consensus amongst Israel’s Muslim public on the matter of female appointment to judicial posts, and the divide reflects the wandering religious and social moods of this public. Therefore, great significance is placed on the appointment of a female Qadi to the Sharia Courts.

In this article, I will discuss the religious, legal and public aspects of the appointment of a woman to the post of Qadi in the Sharia Courts, which doubtless constitutes a significant innovation in religious code. The article will describe the religious stances toward this issue and the stances of the Muslim public, which attest to (among other things) the changes of consciousness which has occurred within it.  I will also review happenings in this field in other Islamic nations.

Opinions from Religious Authorities on the Appointment of a Woman to a Judicial Post
Among Muslim scholars, there is agreement regarding the qualifications required for a qadi - he must be mature, sane, Muslim, fair-minded, free, industrious, and without any blemishes. On the other hand, they disagree on the matter of a qadi’s gender. The dispute stems from the varied exegeses of the Koranic verses and the Hadith of each of the four main Islamic schools: the Shafi'it, the Hanbali, the Malikite and the Hanafi. Not only this, but among each of the Islamic schools, there is debate amongst its scholars.

It’s important to highlight that the disputes between religious scholars are legitimate because the fiqh, Islamic jurisprudence, is the product of scholarly contemplation; it is meant to expand the knowledge of Sharia and represents the scholar’s understanding of it. Therefore, it is unsurprising to find disagreements among religious schools of thought and their scholars in all that is related to the fiqh and religious code, which unlike Shari’a, is the divine law revealed in the Koran and through the Sunna of his prophet, Mohammad.

Most of the schools – the Malikite, the Shafi’it and the Hanbali – along with a distinguished sage of the Hanafi school, Zofar, ruled that it appointment of a woman to judgeship was prohibited. In their view, a woman’s term as a judge would be null and void, her rulings having no legally binding validity.[1] This issue has been discussed in detail in the writings of authoritative and respected religious scholars such as Ibn Qudama, Imam al-Qurafi, and al-Fayruz Abadi.[2] In addition to the Sunni schools, the Shi’ite Ja'fari school strictly forbids women from holding judicial posts.

On the other hand, some adjudicators unrestrictedly allow for the appointment of women to the role of Qadi. These scholars believe that gender is not included in the conditions for judicial fitness, and indeed, the Andalusian sage Ibn Hazm al-Thaheri allowed for the female appointment to judicial positions.[3] A similar opinion is attributed to the jurist Ibn Jarir al-Tabari;[4] in his opinion, if a woman can serve as Mufti, then it is also allowable to let a woman serve as Qadi, because a Mufti presents religious opinion based on knowledge, consideration, and evaluation, and a Qadi also adjudicates according to them. If the appointment of a Mufti is not conditional on (male) gender, this should also not be a condition for appointing a Qadi.[5] In general, the religious scholars who agree to the appointment of a woman to the role of Qadi base their claim on the absence of a prohibition in the Koran or in the Sunna regarding the appointment of a woman to a judicial position. However, it should be noted that there were scholars, including Abu Bakr bin al-Arabi[6] and al-Qurtubi,[7] who denied this stance’s attribution to al-Tabari, and they claim that he opposed appointing women to judicial positions.

In contrast to the two forbidding and permissive opinions, the scholars of the Hanafi school of thought and Ibn Qassem of the Maliki school[8] believed that it is permissible to appoint a woman to certain positions in certain areas. For example, they allowed the appointment of a female judge to matters on which she could serve as a witness, which is to say, on any matter, except Hudud (Penal Law) and Qisas (Criminal Law).[9]

According to an opinion of other Hanafi religious scholars, the appointment of a woman to a judicial position is prohibited, but if one is appointed, her rulings are binding. These scholars explain that belonging to the male gender is a required qualification of a judge, but they differ on the validity of a judgments ruled by a female judge. They ruled that if a woman was appointed to a judicial position, her ruling is binding, even though her appointment to the position is prohibited in the first place, as long as ruling is based on Shari'a laws and as long as the ruling is not in the realm of criminal law or penal law; in these areas, she is neither entitled to judge nor to testify.[10]

The Appointment of Women to Judical Posts in Sharia Courts or Sharia-dependent Courts in Muslim States
The division amongst religious scholars on the appointment of women to judicial positions influenced the positions adopted by Muslim states on the matter. Below, I will review the Palestinian Authority’s position, along with positions from different states which allowed for female judicial appointments in Sharia Courts.

The Palestinian Authority (PA): The PA allowed women to be appointed as judges in the Sharia courts. In 2009, two Qadis were appointed - one in Ramallah and one in Hebron [11] – and thus, the Palestinian Authority adopted without reservation the position permitting the appointment of women to judicial positions.

Indonesia:    At the end of the 1950s, the authorities decided to appoint women to positions in the judicial system, drawn from their interpretation of the Shafi'i school rulings, although Islamic groups claimed that the appointment of women to qadi was  against  Islamic Shari'a. The Shafi’i school is the most prevalent in Indonesia, and according to it the appointment of women is allowable in cases that demand it. Accordingly, the Ministry of Religious Affairs determined that the appointment of a woman qadi did not constitute a threat to any vital interest whatsoever. Moreover, due to the lack of qualified qadis that meet the requirements of the Ministry of Religious Affairs, it is permissible to appoint women to the position. In 1964 the first female qadis were appointed to the Sharia courts, most in part-time positions and one full-time. Only in 1989 did the state formally anchor the right of women to hold this role. The Law of Administration of Religious Adjudication determines what qualifications are required of a qadi, for example, a bachelor’s degree in Law and Islamic Law. The rate of female qadis in the Shari'a courts in Indonesia stood around 15% of all qadis in 2011, and women even head Shari’a courts across the country.[12]

Malaysia:       In 2003, the Malaysian government decided to appoint female qadis to the Shari’s courts although women had been appointed as judges in civil courts since the 1960s (the Malaysian judicial system consist of civil courts and Shari’s courts). Afterward, a controversy arose regarding the authority of female qadis on certain issues, even though in 2006 the National Fatwa Council of Malaysia ruled that qualified women could serve as religious judges. In the end, it was decided that the authority of female qadis would be identical to that of male qadis.[13]

Pakistan:       Pakistan is considered an extremely conservative country. It subscribes to the Hanafi school of Islam in a strict manner, and in spite of this, in the end of 2013 it was decided to appoint the first woman to the position of qadi to the state’s High Shari’s Court.[14]

Sudan:           The legal system in Sudan includes civil courts and religious Shari’s courts. The state’s laws in the realm of marriage were based on Islamic Shari’a, and already in 1970 the chief qadi of the Shari’a Courts was had appointed a woman to the position of Qadi. In 1987 four women held judicial positions in Sudan.[15]

Egypt:            After the Free Officers’ Revolt in 1955, Gamal Abd al-Nasser decided to abolish the institution of the Shari’a courts which had functioned since the Ottoman era. From the same year, cases in the realm of personal status were discussed in civil courts or in family courts, and citizens of all religions were judged within them.[16] In the year 2000, President Hosni Mubarak ordered the appointment of a female judge to a court which had no dealings with civil or criminal cases. In 2007, he appointed 31 female judges to family courts. These appointments of women judges are equivalent to the appointment of female qadis in in Shari’a courts because in both courts they adjudicate matters of personal status whose laws are drawn from Islamic Shari’a. As in the rest of the Muslim world, there is also controversy regarding the appointment of female judges in Egypt. For example, as early as 1952, the council of Al-Azhar University, the most prestigious learning institution for Shari’a law, issued a fatwa that it was forbidden to appoint women to judicial positions, and the matter was not open for discussion.[17]

Iran:                Iran is defined as an Islamic republic with a Shi’i Muslim majority and its laws are based on the Jabari school of thought. Islamic Shari’a is the core of all legislation pertaining to every facet of life, even though none of its courts are classified as a “Shari’a court.” In addition to Shari’a laws Iran has civil laws which include matters of personal status. Until 1979, women in Iran were appointed to senior positions, including judgeships, but this became a rarity after the Islamic Revolution. In 1982, a law was passed declaring that only men could hold judgeships in Iran’s courts. As part of an amendment to this law, which was passed in 1985, women were allowed to serve as advisors in civil courts and in the ministry responsible for juveniles. Part of another amendment, which passed in 1995 allowed female lawyers to occupy positions as advisors to judges in marital and family courts, and required judges to consult with female advisors before issuing a sentence. In 1998, it was decided to establish courts for family issues, and they replaced the general courts in judging such matters.[18]

The Appointment of a Woman Qadi to the Sharia Courts in Israel
Shari’a courts in Israel are an institution for religious adjudication rooted in rule of the Ottoman Empire. The Shari’a courts were used as courts of the state and subscribed to the Hanafi school, which was binding throughout the empire. The British Mandate authorities, which took power in the region after the defeat of the Ottoman Empire in the First World War, enacted the “Palestine Order-in-Council, 1922-1947.” According to the provisions of this legislation, the Mandate authorities adopted the institution of the Shari’a courts and the Ottoman laws, based mostly on the principles of the Hanafi school.  The state of Israel also adopted the Shari’a courts and Ottoman legislation on personal status, through the Ordinance for Administration and Law, 1948.

According to Article 52 of the above-mentioned King's Law, Shari’a courts in Israel are authorized to deal with personal status issues of Muslims in matters such as marriage, divorce, child support, guardianship, paternity and custody of children. They are also authorized to discuss waqf (Islamic endowments), inheritance, religious conversion to Islam, prevention of domestic violence and more.[19]  Today, nine Sharia courts are active in Israel: in Jerusalem, Be’er Sheva, Yafo, Akko, Nazareth, Tiberius, Haifa, Baqa al-Gharbia, in Sakhnin (under construction), and the Shari’a Court of Appeals in Jerusalem.

The selection of qadis to the Shari’a courts has been performed under the Law of the Qadis of 1961.[20] The law, in its various versions, did not include gender in the qualifications for a qadi’s tenure, and therefore did not relate to the appointment of a woman to the position, either in the positive or the negative. Therefore, as long as there is no prohibition against appointing female qadi, the implication is that it is permitted. Indeed, for many years, women have applied for the post of qadi, but have not been selected. In 2013, it was agreed between the then president of the Shari’a court of appeals and the manager of the Shari’a courts and then-Justice Minister, Tzippi Livni, to work toward the appointment of a woman.[21]

At the end of 2015, Knesset member Issawi Freih proposed a law to require representation of at least one female nominee for each qadi position, though the proposition failed. The Shari’a courts opposed the appointment of a woman, and Jewish religious political parties also strongly objected; for example, the ultra-Orthodox United Torah Judaism threatened to use its veto-power in matters of religion and state to thwart the bill. The main reason for this opposition is the fear of the influence of legislation of that kind on the religious Jewish population, which would be likely create a precedent for the appointment of women in rabbinical courts.[22]

The Honorable Abd al-Hakim Samara, then acting president of the Sharia Court of Appeals in January 2016, and today the president of the Shari'a Court of Appeals, saw that there are rulings in Muslim law that allow a woman to be appointed in a judicial capacity, especially in the Hanafi school, which binds the Sharia courts. Therefore, Qadi Samara agreed to appoint a woman as a qadi. Qadi Samara’s position enabled the members of the selection committee to positively consider the appointment of a woman to a judicial post.

In April 2017, for the first time in Israel, a committee appointed by Justice Minister, Ayelet Shaked, appointed a woman to serve as a qadi - Hana Khatib, an attorney specializing in Shari'a law and marriage law.[23] On May 15, 2017, an oath ceremony was held at the President’s Residence for the inauguration of new qadis, and on this historic occasion, the first woman qadi was sworn in.

Among the Arab public of Israel, the decision to appoint a female qadi was received with mixed feelings. There were some who welcomed the decision and felt it correct in terms of religious protocols; there were those who supported it on grounds of public policy and the need to advance women’s stature; and some supported the decision on Feminist grounds. On the other hand, there were those who opposed the decision because they deemed it forbidden by Muslim law, and some opposed it because they viewed the appointment as a violation of the tradition and customs of Arab society. The storms rumbled and raged through social networks and in responses to articles published on the Internet. At times, the heated debates ended in verbal abuse.

The Shari’a courts in Israel supported and welcomed the historic step of appointing a female qadi. Although they recognized the religious dispute on this issue, they published a statement explaining that the decision was based on a fatwa issued by the religious scholars of the Hanafi and Thaheri schools and by Ibn Jareer al-Tabari, who permitted the appointment of a woman to the post of qadi.[24]

On May 7, 2017, the Qadis of the Israeli Shari’a Courts published a proclamation, which stated that in spite of the theological dispute on the matter, the opinion of the Shari’a Courts was that it is possible to appoint a woman to the position of qadi. The proclamation based the decision on doctrine and highlighted that the decision was derived from the work of distinguished religious authorities. The proclamation also condemned any statement which undermined the legitimacy of the decision and expressed full support for the president of the Court of Appeals and for the courts’ director, who were both members on the selection committee for qadis.[25]

Sheikh Hamad Abu Da’abis, chairman of the southern branch of the Islamic Movement in Israel, adopted the position that allows for fit and qualified women to hold qadi positions in recognition of the important standing of women in Islam, and he called upon other Arab and Muslim states to allow women to occupy this position. Sheikh Kamil Rayan, a senior leader in the southern branch of the Islamic movement, joined Abu Da’abis in this position, but acknowledged the varied theological opinions of religious scholars on the subject and the ongoing debate in relation to the appointment of women to the position of qadi.[26] The Knesset member of the southern branch also welcomed female judgeships.

Arab feminist organizations also expressed their support for the appointment, recognizing the importance of appointing a woman to the role of qadi in family and Shari’a courts in Israel.[27] For example, the feminist organization, Kayan, welcomed the appointment and called for the appointment of additional female qadis. In their opinion, women should be allowed to be selected for the same positions as men in order to reduce the discrimination that they suffer.[28]

Women and men of the political arena serving in the Knesset, MK Issawi Frej among them, also praised the decision. MK Aida Touma Suleiman, chair of the parliamentary committee for the advancement of women, emphasized the importance of the measure, and described it as “a historic step in the feminist struggle toward the advancement of Arab women to decision-making and leadership positions.”[29]

On the other hand, Dr. Mashour Fawaz objected to the appointment; in his view, a woman has no authority to hold such a position. Dr. Mashour is the director of the Muslim Council for Religious Ruling, an organization established by the northern branch of the Islamic movement, which deals with religious religious rulings for Muslims in Israel on various matters. Its members are graduates of Shari’a studies at universities in Israel and abroad. Dr. Mashour went as far as to criticize the religious authorities from the Hanafi school to whom the fatwa allowing for the appointment of women to qadi is ascribed. He claims that the Hanafi school forbid the appointment of women to qadi, and only Ibn Hazm explicitly permitted it. This position contradicts a previous fatwa issued in 2009, in which it was ruled that authorized women could hold judicial positions.[30] In Mashour’s opinion, the Hanafi school’s position on the subject is unclear, so much so that the clerics themselves became confused.[31]

Sheikh Kamal Khatib, deputy director of the northern branch of the Islamic Movement (until it was outlawed), sharply criticized the committee's decision to appoint a woman to the position of qadi in the Sharia court, and supported the view that Islamic Shari’a forbids it. According to him, the appointment of a female qadi is nothing but a political deal carried out in the Sharia court system. He even cast the authority of the members of the selection committee.[32]

Conclusion
The appointment of a woman to the role of qadi is not a routine appointment in the Shari’a courts. Without any connection to the identity of the woman chosen for the position, the appointment conveys that the Shari’a and Islamic Law are a progressive and enlightened legal system that can properly deal with the varied circumstances in order to realize public good. The move reflects an open theological worldview on the part of the Shari’a courts’ leadership in managing modernity and its challenges. The appointment points to changes in the views of Muslim society in Israel; in spite of the troubles that arose from the appointment, many in this public believed that the move was correct from both a religious and social standpoint, and accepted despite the opposition of the aforementioned parties. The is no doubt that the appointment was a historic step, and the Shari’a court system in Israel leads in this line along with other Shari’a courts in other states across the Muslim world, and with the neighboring Palestinian Authority.

Dr. Iyad Zahalka is a Qadi in the Shari'a Court of Appeals and Director of the Shari'a Courts in Israel. He lectures at Tel Aviv University, and is the author of numerous books in Arabic, Hebrew, and English on the subject of various aspects of Muslim Sharia Law.

The author wishes to thank Ms. Mayada Asfur, an MA candidate at Tel Aviv University’s Department of Women and Gender Studies, for her generous help in collecting materials.