الوقف الصحيح و غير الصحيح بين المصالح الشخصية و التطبيقات الفقهية : دراسة حالة وقف بيت لحم و بيت جالا بين عامين 1948-1967

Abstract EN

During the application of waqfs concepts in Jerusalem, a legal and a jurisprudent conflict happened with respect to the Ottoman’s Act application on some property of the Waqf which were part of a prestigious Waqf institutions such as Khassiki Sultan, the Waqf of the wife of Sultan Suleiman the Magnificent, established in Jerusalem in 1557.

Among the properties endowed for this institution are the two villages (considered cities these days) of Bethlehem and Beit- Jala whose populations were mainly Christians.

The origin of this dispute: Were these villages correct or incorrect Waqf? This legal dispute has not been resolved until this moment.

Based on this, this research paper attempts to shed light on this particular legal issue and the differences in applying the concept of correct and incorrect Waqf and the impact of self-interest as well as ideological and sectarian differences in the understanding and proper application of these Waqf concepts.

The question that arises here, which this research paper tries to answer, is: why this difference in both understanding and applying the concept of correct and incorrect Waqf took place in Bethlehem and Beit-Jala and not on other villages which were affiliated to the same Waqf institution?.

Could this be attributed to the conflict of personal interests and therefore the interpretation of these concepts reflect such interests? Or is it associated with ideological and sectarian conflicts between the Islamic Waqf institution and the non- Muslim sects who were benefiting from the Islamic Waqf? This research is based on tireless work in Jerusalem Islamic court records and documents of the archives of the Palestinian Ministry of Islamic Waqf, which retains many of the cases that had taken place in the courts regarding the case of Bethlehem and Beit-Jala Waqf.

All this has been compared with the other Waqf and estates belonging to the same Waqf institution which the concepts of Correct and Incorrect Waqf apply on them.

The research concludes that the Ottoman Waqf and administration in Jerusalem rejected in principle to consider Bethlehem and Beit-Jala’s waqf as it did with another 30 villages belonging to the same Waqf could be attributed to the fact that the beneficiaries of this Waqf, whether from housing or renting, were the people of “Dhimi”.

In my opinion, in order to displease the people of “Dhimi”, the concept of Correct and Incorrect Waqf was not correctly applied on the Waqf exploited by the Ottomans.

The refusal of the inhabitants of these villages to continue paying the dues of their exploitation of these Waqf villages despite their documented commitment for four centuries- from 1557-1952, this refusal came to emphasize their desire to change realities and to acquire these properties, thus benefiting from the change of the political system in Palestine and the subjection of Jerusalem to the Jordanian administration between 1948- 1967.