JURIST Guest Columnist Ibrahim Fares, an LL.M. Candidate from the University of Pittsburgh School of Law Class of 2013, explains the impact of religion on legal rights in Palestine...
eligion affects many aspects of life in Palestine, including legal rights. One sensitive issue in Palestine is converting from Islam to Christianity (or vice versa) and from within a religion to a different school. Religion may not have legal effects in the US or Europe; however in the Arabic world in general, and in Palestine in particular, it has significant legal implications. As a result, this article seeks to clarify the legal system of converting religions in Palestine under the Palestinian Basic Law 2003
, which act as a temporary constitution, and its effects on freedom of religion.
Article 9 of the Palestinian Basic Law provides that: "Palestinians are equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability." Article 18 expressly provides: "Freedom of belief, worship and the performance of religious functions are guaranteed." Moreover, Article 10 stipulates that: "basic human rights and liberties shall be protected and respected."
Thus, it is clear that the Palestinian Basic Law guarantees the freedom of religion as a constitutional right. Because Palestine is not yet a state and cannot join international conventions related to human rights, the Palestinian National Authority under Article 10 binds itself by all the UN human rights conventions and declarations. One of the most important declarations of human rights is the Universal Declaration of Human Rights, which guarantees freedom of religion under Articles 16 and 18.
In terms of converting religion, the process of converting from Christianity to Islam and vice versa requires a legal procedure that has to be endorsed by "the competent authorities," such as the religious courts.
Article 36 of the Palestinian Status Law Number 2 of 1999 provides that any change or correction in the civil status "should be by a final court judgment," but in Article 37 the law exempts religion from this process and provides that to change religions requires only documents issued by "the competent authority." To clarify the process in practice, I will give a hypothetical example. When a Christian wants to be a Muslim, the process works as follows:
- The Christian must fill out an application and then appear in front of a Shar'h court with two witnesses to assert that he has become a Muslim .
- After the application is completed and endorsed by the Shar'h court, it must be circulated to all governmental departments, because this change has significant legal effects regarding family law, as will be explained later.
- The Shar'h court has to circulate the previous procedures in a local newspaper to inform the public in new legal situation to the interested person.
As mentioned above, in Palestine converting religion has a significant impact especially regarding family law. The enforceable family law for Muslims is Family Law Number 61 of 1961, which is based on Islamic rules. Christians are governed by laws established by their respective churches. The significant effects are:
A. Marriage and Divorce
The main rule of marriage for both Muslims and Christians is not to allow marriage between them. This rule motivates some Christians to become Muslims and vice versa just for marriage purposes. As the result of changing religions, some Palestinian women have been killed in order to protect family honor. If one person in the couple, either a Muslim or a Christian, changes his or her religion, then the marriage becomes invalid.
With respect to divorce in Christianity, some Catholics have converted to Orthodoxy, because the Orthodox school is more flexible in divorce proceedings [PDF].
In both Christian and Muslim families, if any member of the family converts his or her religion, he or she loses inheritance rights. This is a major rule in both religions: any "renegade" (a person who changed his religion) does not have the right to inherit.
C. Change in Personal Identification (ID)
On the Palestinian ID, there is a space for religion and anyone who changes his or her religion has to change his or her ID to be consistent with the effects under the new religion. Moreover, a change in ID in such a case is often accompanied by a change in name, which requires a judgment from a competent court .
Divorced women are entitled to custody of their children, either in Islamic or Christian rules; but, the divorced mother loses the custody of her children if she converts her religion. According to both Islam and Christianity there is no custody for a "renegade" .
Under legal precedent regarding religious conversion, it seems that family laws for Muslims and Christians violate the Palestinian Basic Law, which is the supreme law in the country, especially Articles 9, 18 and 10 that guarantee freedom of belief, worship and the performance of religious functions. On the other hand, the Palestinian Status Law Number 2 of 1999 also violates the Palestinian Basic Law by requiring such procedures to convert religion.
The first case before the Palestinian Constitutional Court regarding freedom of religion was in July 2010. In this case, Palestinian couples believed in an Islamic school called Al-ahmdeh. This school was not recognized by Sunni Muslims, the majority of Muslims in Palestine. The Personal Status Prosecution (Shar'h Prosecution) filed a complaint against the couples before the First Shar'h court, claiming that their marriage contract was invalid because these couples were "renegades," not Muslims, because they believed in that school. The First Shar'h court held that their marriage contract was invalid.
The defendant appealed and filed an action before the Palestinian Constitutional Court, asking the court to decide that the Shar'h Prosecution was unconstitutional because it violated Articles 9 and 18 of the Palestinian Basic Law. The Constitutional Court dismissed the case because the plaintiff did not sue the government in the action, which is a procedural requirement for the Constitutional Court.
On appeal, the Shar'h Court of Appeals in November 2011 ruled that the contract marriage of the couples was valid, because the couples "re-enter[ed] the Islam." This decision came as a result of public pressure, resulting from extensive media coverage and human right institutions interested in the case. Interestingly, Palestinian society was divided on the issue. Some believed that freedom of religion is a constitutional right and the Constitutional Court has to protect this right by holding that the marriage is valid and the Shar'h Prosecution's powers were unconstitutional because it does not have the right to decide who is or is not Muslim. Others supported the Shar'h Prosecution's perspective. Unfortunately, when the Constitutional Court noticed that this case had become a public case, it preferred to get out of that debate and dismissed the case, rather than upholding and protecting the Palestinian Basic Law's articles that guarantee the freedom of religion.
Undoubtedly, there is a huge gap between the Palestinian Basic Law, which guarantees freedom of religion, and the Palestinian legal and judicial system. Ultimately, the Palestinian Constitutional Court must address this gap but it has failed to take this responsibility as it should under its law.
Ibrahim Fares received his LL.B. from Al al-Bayt University and his Masters Degree in Law from BirZeit University. Fares legal experience includes positions with Husseini Law Firm and ITTQAN Law Firm.
Suggested citation: Ibrahim Fares, Freedom of Religion in Palestine: Converting Religions, JURIST - Dateline, May 1, 2013, http://jurist.org/dateline/2013/05/ibrahim-fare-religious-freedom.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at email@example.com