**Response to the Supreme Sharia Court’s Memorandum Regarding the Draft Law on Family Protection from Violence**

First: General Observations:

Regarding the “General Observations” section of the memorandum issued by the Supreme Sharia Court, we regret to say that it does not meet our expectations of the Council, given its high position and standing. These observations are entirely subjective in their general narrative and lack accuracy in detail. Objectivity and accuracy would have eliminated many unnecessary comments, as the memorandum seems to hastily marshal justifications solely to reject the draft law. Unfortunately, the memorandum, implicitly, displays a condescending attitude, failing to consider that its readers are not ignorant and possess sufficient legal expertise to respond to such comments.

Regarding the Timing of Issuing the Decree-Law on Family Protection from Violence:

The argument that the absence of the Legislative Council is a valid objection is unfounded. Since the suspension of the Legislative Council in 2007, the President has issued over one hundred decree-laws^[1] affecting public affairs and addressing numerous issues, including family relations, violence, and penalties. We have not heard any objections from the Sharia judiciary demanding approval by the Legislative Council for these issuances.

On the Necessity of This Law Now:

Given the increasing rates of domestic violence amidst political and health developments in Palestinian society, reports indicate^[2] that domestic violence, especially against women and children, has risen in the recent period since the outbreak of the Coronavirus pandemic, particularly due to the disruption of enforcement of Sharia court decisions. This necessitates the attention of the Sharia judiciary, specifically regarding:

1. Refusal by many obligated parties to pay alimony (wives, children, the elderly).
2. Refusal by many men to pay installments related to women’s rights resulting from divorce or family disputes.
3. Refusal by many custodians to implement child visitation orders.
4. Increased marital disputes involving all forms of verbal, physical, sexual, and economic violence.
5. Exploitation of circumstances by some families to marry off underage girls in violation of the law.
6. Increased rates of domestic violence due to the failure to activate detention orders against those who fail to meet their financial obligations or due to their violent behavior.

Regarding the Economic Cost of Enacting the Law:

The memorandum exaggerates the economic cost of implementing the law, which is inaccurate because:

1. Allocating specialized departments to address domestic violence cases does not necessarily mean creating new courts or appointing additional staff in the judicial system.
2. Regarding protection counselors: The Ministry of Social Development has social researchers and protection counselors, and increasing their number is a natural step not only related to implementing the law but also to implementing the national referral system and applying the Unified Case Management Manual.

Regarding the Claim That This Law Is Incompatible with Palestinian Traditions or Relations in Palestinian Society:

This claim is unfounded because what was mentioned in the memorandum are not new provisions introduced into the existing legal system. Instead, they have been compiled in the draft decree-law on family protection from violence. It does not contradict Islamic law, which is the main source of legislation, nor does it conflict with the personal status laws, the penal codes in force, or the Palestinian Basic Law. This is because:

1. Penalties for psychological violence between spouses are not contradictory, as this is invoked in cases of discord and conflict, and the court and arbitrators take it into account.
2. Penalties for sexual violence by a family member against another exist in Palestinian laws (sexual harassment, indecent assault, incest), including violence between spouses, especially if a man engages in anal intercourse with his wife, which violates Sharia law and all laws.
3. Regarding the penalty against those who do not comply with the law regarding custody, alimony, or guardianship: This is practiced in Sharia courts, including imprisonment until compliance for those who do not hand over the child in custody, imprisonment for those who do not provide for the child in custody, and removal of custody from a person who lacks legal capacity or who is proven to have committed crimes that affect the guardian’s upbringing of the child in custody.
4. Emphasizing these issues in the draft law on family protection from violence, which are subject to rulings in Sharia courts, cannot be described as conflicting with Palestinian traditions, religion, or law. Rather, the laws complement each other.

Lack of Conflict Between the Draft Law on Family Protection from Violence and the Work of Sharia Courts, Personal Status Laws, and Sharia Court Procedures:

Filing a domestic violence complaint with a protection counselor or the police does not conflict with the work of Sharia courts and is not a substitute for it. Complaints against violence between family members are not cases heard before Sharia courts; instead, they are penalized before civil courts, as is the practice in applicable laws. However, a civil court ruling or a complaint before the police and prosecution is considered evidence and a presumption of proof before Sharia courts in the event of a request for separation, extension of custody, or removal of guardianship, etc.

Regarding Violence Statistics:

Caliph Omar Ibn Al-Khattab, may God be pleased with him, said, “By God, if a mule stumbled in the land of Iraq, God would ask me about it on the Day of Judgment: ‘Why did you not pave the way for it, Omar?'” These are the qualities of a just ruler. It is unfortunate that what was mentioned in the memorandum of the Supreme Sharia Court regarding violence statistics indicates that the judiciary has not reviewed the Central Bureau of Statistics’ 2019 violence survey, which provided clear figures on domestic violence against married and unmarried women in numerous cases and at high rates. It is also unfortunate to underestimate the figures and compare them with other countries because the message of the law and the judiciary that we expect to be applied is to achieve justice even for one member of society, not to wait until violence rates reach 100%.

Second: Regarding Comments on the Preamble of the Law:

Regarding what was stated regarding the references of the law:

• Regarding reliance on the provisions of the Basic Law, civil society organizations recommended this during the presentation of the amendments.
• Regarding reliance on Personal Status Law No. (16) of 1976, it should be remembered that there is another area in this country called the Gaza Strip, where two million citizens reside and to which the Jordanian law mentioned does not apply. Rather, the Personal Status Law according to the doctrine of Imam Abu Hanifa and Order No. (303) regarding family rights, which are applied in the Gaza Strip, apply there.
• Also, these laws are being amended in a unified law, and on the other hand, this is a civil criminal law that includes penalties, and the laws on which it is based are mostly penal or preventive laws of jurisdiction.

Third: Regarding the Texts of the Draft Law:

• Article (1):
  

  1. Regarding the definition of domestic violence: How does the definition in the law violate the Personal Status Law in terms of equating family members without discrimination between spouses, given that this is the definition of domestic violence that came in the draft (every act or omission by one family member against another that results in physical or psychological harm). The memorandum’s demand to exclude spouses from the scope of the law on family protection from violence is unfounded and surprisingly issued by the Sharia judiciary. We regret to say that the memorandum violates the purposes of Islamic law and the provisions of the marriage contract because, according to the Quran (either living together in kindness or separation with goodness), and this does not legislate violence between spouses, and also there is no condition in marriage contracts that either spouse submits to violence from the other party.
  2. Regarding the definition of physical violence, sexual harassment, and psychological violence: Further to the comment in paragraph (a), the memorandum did not clarify where in the purposes of Sharia and the marriage contract or what was stated in all divine religions, according to the memorandum, justifies sexual and psychological violence between spouses, and how the imagination of the drafters of the memorandum and those who agreed to its issuance in the name of the Sharia judiciary went so far as to consider the preliminaries of sexual relations as harassment or physical violence in the draft law on family protection from violence. What came in the draft law in Article (42/1) (Anyone who physically abuses his wife for the purpose of establishing a sexual relationship without her consent, if it results in physical harm based on a medical report from the competent authority, shall be punished with imprisonment for a period of not less than one year and a fine of not less than five hundred Jordanian dinars, and not more than one thousand dinars or with both penalties. Under no circumstances can this note in the memorandum be considered a slip of the tongue, but rather it is a justification for the crime of physical harm for the purpose of sexual intercourse between spouses under the pretext that this is one of the purposes of Islamic law and one of the requirements of the marriage contract.
  3. Regarding the definition of economic violence and forced labor: An unacceptable objection from our side because firstly: the memorandum again dealt with the country as only the West Bank, and the laws in force in the Gaza Strip were ignored, as was the Palestinian Labor Law No. 7 of 2000, which recognized the right to work for every person capable of it without discrimination, and Chapter VII, which regulated the provisions for women’s work, and secondly: considering that the Personal Status Law regulates the lives of wives and the level of their enjoyment of rights, and if that is the case, is the violation of the wife’s money while she enjoys an independent financial status from the conditions of the Personal Status Law, and why does the Sharia judiciary allow the existence of a female judge, a female lawyer, and a female minister, etc., and is women’s employment in these jobs only conditional on the approval of the husbands, and what is the position if she is not married, does she also need the approval of the guardian?!!! This view of women’s work if it is enshrined will return us to the era of concubines and that the woman’s function in life is only to sexually enjoy the husband, childbearing, and domestic service.
  4. Regarding the definition of discrimination: The suggestion in the memorandum to add (in a manner that does not conflict with Sharia guardianship) completely negates the meaning of what came in the definition of discrimination, and the explanation that came in the memorandum to justify this addition, that it concerns minors and not leaving them freedom, is not what is meant by the addition because Sharia guardianship does not only concern minors but all females, and here again it becomes clear to us the spirit of arrogance and considering that those who read the memorandum are ignorant in front of the geniuses of the Sharia judiciary.
  5. Regarding the definition of the competent judge: The intention in the law is the judge who is considering the domestic violence case, but what came in the draft regarding the family court has been requested to be amended to the existence of a department in the court specialized in family crimes.

• Article (2): This is a penal law, and it is not permissible to include personal status laws because they are not punitive laws.
• Article (4): It is not the duty of the Ministry of Social Development to provide religious education, this is the competence of the Ministry of Endowments.
• Article (14): 14/1: The response that came in the response above applies to the definition of sexual violence, and it is not permissible to exclude spouses because sexual assaults occur between them when intercourse is performed from the anus, and when coercion is used for intercourse by force and by beating or during the wife’s menstruation period or the postpartum period, and the practice of that has no ratification in Islamic Sharia, neither in the Quran nor in the Sunnah.
• Article (16): The nature of the note is not clear, and it seems that the notes were placed on an old version and not the latest amended version.
• Article (21): The note is inaccurate as there is no contradiction with paragraph (9) of Article (14), because the request for a protection order for the victim for a family member here is intended to be temporary protection from the abuser and not issuing orders related to Sharia or guardianship and custodianship.
• Article (25): Paragraph a/1: The suggestion to add (according to the laws in force) is unacceptable in form and content, in terms of form it is an illegal and general expression, in terms of content the laws referred to in the introduction to the law are the laws on which the law on family protection from violence is automatically based, but if the matter requires specification in one of the articles the name of the intended law must be specified. The other notes in the amended version are clear and do not conflict with the Sharia court’s decision if any.
• Articles (41,42,43): These notes have already been commented on above.
• Article (45): Firstly, we are surprised by this note because the article speaks of the penal punishment and not the Sharia punishment regarding coercion to marry, and the Sharia punishment is the competence of the Sharia court regarding the annulment of a contract that has not been denied in the article, but the article punishes coercion and compulsion, which is violence and is linked to a criminal complaint, secondly, the penal codes in force include what is stated in this article, including the penalty for marrying minors.
• Article (51): The proposed addition regarding the exception of the laws in force even if they conflict with this law nullifies the law from its basis, which we do not agree with, because there is what is present in the old laws in force that conflicts with the laws that were created later such as the Basic Law for example and the Labor and Elections Law, etc., secondly, it is a loose phrase and does not carry any identifiers that can be relied upon.

^[1] See issues of the Palestinian Gazette

^[2] -Report of the Ministry of Social Development – Report of the General Union of Palestinian Women addressed to the international rapporteur, Violence Consultant – Reports of the work of women’s and human rights institutions.

^[3] See reports of Sharia courts in the West Bank and Gaza as well.