This memo concerns the Judicial Circular No. (01/2021) regarding travel bans issued on February 10, 2021.

Objective: This memo aims to demand a review of the judicial circular on travel bans, which was based on the interpretation of the Supreme Sharia Court during its session held on February 14, 2021. The Center for Women’s Legal Researches, Counselling and Protection (CWLRCP) calls upon the Supreme Council of the Sharia Judiciary in Gaza to repeal this circular, as it violates citizens’ fundamental rights to freedom of movement and travel. These rights should only be restricted by a court order issued by a competent court and are guaranteed by the Basic Law, which supersedes other legislation.

Justifications:

First: General Observations on the Circular:

1. There is a contradiction in the dates stated in the circular. The heading indicates that the circular was issued “based on the interpretation of the Supreme Sharia Court during its session held on February 14, 2021,” while Article (5) states that it was issued on 28 Jumada al-Akhira 1442 AH, corresponding to February 10, 2021.
2. In an unprecedented move for the Sharia judiciary, the circular combines two separate subjects in terms of content and form, the justification of which is unclear. The first subject, in Articles (1) and (2), concerns preventing the travel of minor children under the custody of women, including those whose custody has been transferred to the father. The second subject, in Articles (3) and (4), concerns preventing the travel of adults.
3. In both Articles (3) and (4), the concept of “harm” is unclear. It is not clear whether the “harm” refers only to cases within the jurisdiction of the Sharia judiciary or any type of harm.
4. The circular does not clarify the age of those intended in Articles (3) and (4), especially in Article (4), where women without a male guardian (“Wali”) are mentioned. The distant male relative may not know anything about her; to whom does she turn, and who decides what is in her best interest?
5. The circular includes clear discrimination against women in Article (2), as it does not grant them the right to object to the father’s travel with the children, as stipulated in Article (1), which gives the father the right to object to the custodian’s refusal to allow the father to travel with the children. This contradicts the previous circular issued by the Supreme Council of the Sharia Judiciary No. (22/2010), which affirmed the mother’s right to see and host her children who are not in her custody.

Second: Observations on the Content of Articles (3) and (4):

1. The Legislative Authority is Entitled to Enact and Approve Laws:
   

   • The circular exceeds the authority of the judicial branch. In Articles (3) and (4), it addresses a matter that, in substance, amounts to a legal amendment rather than a judicial circular on Sharia matters based on a law. Preventing adults from traveling contradicts Article (11) of the Basic Law of 2003 and its amendments, which states: “(1) Personal freedom is a natural right, guaranteed and inviolable. (2) No one may be arrested, searched, imprisoned, or have their freedom restricted in any way, or be prevented from moving, except by judicial order in accordance with the provisions of the law…” It also contradicts Article (20), which states: “Freedom of residence and movement is guaranteed within the limits of the law.”
   • The circular fundamentally violates Article (53) of the Palestinian Civil Law No. 4 of 2012, which states: “(1) Every person who has reached the age of majority, is of sound mind, and has not been interdicted shall have full capacity to exercise their civil rights. (2) The age of majority is eighteen full Gregorian years.”
   • The circular violates Article (9) of the Basic Law, which states: “Palestinians are equal before the law and the judiciary without discrimination based on race, gender, color, religion, political opinion, or disability.” The circular includes clear discrimination against women in Article (4), which requires an unmarried woman, whether virgin or previously married, to obtain the permission of her male guardian (“Asaba”) to travel.
   • The circular violates the executive regulations of civil status, which grant a female who has reached the age of eighteen the right to issue a passport herself without the permission of her male guardian and a wife without the permission of her husband, regardless of her age.

2. Violation of the Rules of Jurisdictional Competence:
   

   • In both Articles (3) and (4), the concept of “harm” is unclear. It is not clear whether the “harm” refers only to cases within the jurisdiction of the Sharia judiciary or any type of harm.
   • If the “harm” intended in the circular falls within the jurisdiction of the Sharia judiciary and is based on a prior court ruling, there is no problem with that. In this case, no unmarried woman should be prevented from traveling according to Article (4) except by a court order, similar to what is stated regarding males in clause (3).
   • If any other harm is intended, it does not fall within the jurisdiction of the Sharia judiciary, as the rules of jurisdictional competence are constitutionally regulated and may not be violated. In this case, the person with standing or interest must go to the competent court according to the type of harm to issue a travel ban order.

Director of the Center: Ms. Zainab Al-Ghunaimi