I'm happy to pass on this guest post from my friend and colleage Nathan Brown, an expert on Arab constitutional law, Palestinian politics, and Islamic movements at George Washington University. As with all guest posts, I do not necessarily agree or disagree with anything in it but am happy to pass on the thoughts of an accomplished scholar on the issue.
Guest Post: Hamas in Gaza: The Islamic Law That Wasn't
Nathan Brown
The combination of old and new media can sometimes create an echo chamber that magnifies inaccuracy rather than corrects it. Recently, readers of the Jerusalem Post and a selection of blogs and websites have learned that Hamas-dominated Palestinian parliament has just adopted a draconian penal code based on Islamic law. They have heard human rights organizations be pressed—by Noah Pollack and Martin Peretz—for their failure to respond to the development. And Itamar Marcus and Barbara Crook
have informed them that Hamas itself has lied about what the parliament has done.
There are a few problems with this account. The parliament did not adopt the law. Human rights organizations have not ignored the matter. And Hamas did not lie. All this is clear from a careful and informed reading of the record.
A new urban legend seems to have been created. Urban legends are usually based on fact. There really is a New York City sewer system. There just aren’t any alligators in it. So what’s the kernel of truth here? And what’s the embellishment?
There is an effort to draft a penal code based on shari‘a and this is a significant development on many grounds. The pro-Hamas press in Gaza has reported on an effort to develop a new Palestinian criminal code based on Islamic law. When it campaigned in the 2006 parliamentary elections, Hamas (like many electoral Islamist movements recently) swore off immediate Islamization in its immediate legislative agenda. Its deputies made clear that they saw other short-term priorities. Adopting an Islamic criminal code would obviously be a big shift here. This is not only a shift in priorities; it also comes in one of the most contentious areas possible. Most parliamentary Islamist movements shove criminal law change far down their list of priorities for two reasons. First, it is extremely controversial—they often have far more popular issues to emphasize. Second, criminal law is a tough area—it is often a bit harder to develop newer interpretations that seem more suitable for current conditions.
This is a major project; it is not every day that a totally new criminal code is developed. Any effort to implement the law would greatly deepen the split between the West Bank and Gaza (the current draft is reported to claim to be applicable in all the territories under the control of the Palestinian Authority, but the Ramallah-based government would certainly ignore the new law). Interestingly, al-Hayat headlined the territorial dimensions of the move—that it did not apply to all of pre-1948 Palestine and therefore seemed to recognize the territorial limitations of the PA—but neither the Post nor the bloggers picked up on this.
But the parliament hasn’t passed it. The speaker’s office says that the law has not been passed. The parliament’s sessions are public and well reported in pro-Hamas media—and those outlets reported no such parliamentary action. It would have been pretty hard to have passed a law by stealth. I’ve been trying to follow the story very closely since it first hit the newspapers last month, but I’ve seen nothing on it.
So why was it reported as approved by the parliament? Here is one place new and old media got a little sloppy. The Jerusalem Post story was based on a story
in al-Hayat. The al-Hayat story was
clearly based on a mistake. And it’s not hard to figure out the
error. One of their reporters got a copy of the draft that was being
prepared and mistakenly assumed that it had already been passed. This
was clear from a clarification
the paper issued the next day.
Noting that the speaker’s office denied the parliament had passed the
draft, al-Hayat claimed that the
copy it had obtained was gussied up as if it had been passed by the parliament.
But drafts produced by the Diwan al-Fatwa
wa-l-Tashri‘ (the Bureau of Legal Consultation and
Legislation, the PA body attached to the Ministry of Justice that is
responsible for drafting legislation) routinely appear this way.
The Post, to its credit, did
include the statement that “The
Jerusalem Post could not verify
the veracity of the Al Hayat
report.” There were two reasons they could not verify it. First, they
have no correspondent on the ground in Gaza.
Second, it wasn’t true. But none of the bloggers quoting the Post quoted the hedge; they do not seem to
have noticed it.
So Hamas did not lie when it said the law had not been approved. The law is indeed being prepared (something nobody denied), but it is still at the drafting and discussion stage, and it still seems to be under discussion at the Diwan. In their article, Marcus and Crook produce a series of quotations they had translated from Palestinian press that they claim prove Hamas is lying. But instead the quotations support the interpretation I have just offered -- that the matter is still under discussion and has received no final approval by parliament. Marcus also throws in a gratuitous but curious mistranslation: he calls the Diwan the “Bureau of Islamic Law.” It is nothing of the kind. The mistake is natural—if you have a bad dictionary, a good imagination, or little knowledge of Palestinian politics. Marcus’s translators were probably misled by the word “fatwa” in the Diwan’s title—hence the translation as the “Bureau of Islamic Law.” But “fatwa” does not mean “Islamic law.” A fatwa is a nonbinding legal opinion—most often used in a shari‘a context, but in this case referring to positive rather than Islamic law. The Diwan is no more Islamic than the Ministry of Transportation.
What about the silence of human rights organizations? Well, in one sense they are silent. They have had little to say about a parliamentary action that has not been taken. But are they interested in the issue? Yes. They certainly have been following it—as the original al-Hayat story makes clear in its lede. And I might even hazard a guess that one local human rights organization fed al-Hayat the draft, but that is just speculation from the way the story is written. When I first became aware of the criminal-law project last month, I did notify someone at Human Rights Watch (neither Peretz nor Pollack seem to think that contacting the organization was necessary before condemning its silence). And I received an immediate reply that indicated that the organization was indeed very interested. I have not seen an actual draft. If someone gets a hold of a copy, I would suggest forwarding it on to Human Rights Watch. And please cc me—I’d love to see it.
Comments