SHARIAsource

Volume 2

Volume 1

In December 2018, the European Court of Human Rights (ECHR) considered the question whether Muslim citizens who lived in the Greek province of Thrace could be required to submit to the jurisdiction of Islamic law, as detailed by local experts called muftīs. In Greek law, Islamic law usually governed matters of family law—such as marriage, divorce, and inheritance—in cases involving the Muslims in Thrace. This arrangement was a legacy of the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne. When the ECHR considered whether this arrangement should persist, it considered a case in which a Muslim man had died, leaving everything to his wife in his will. His sisters contested the will, arguing that it improperly circumvented the authority of the muftīs. Greece’s highest court agreed with the sisters. With the will invalidated, the muftī distributed one-fourth of the estate to the widow, and the rest to the sisters, in accord with Islamic inheritance law. The widow appealed to the ECHR. This Court determined that the Greek government had misinterpreted the treaties, which did not require a separate legal framework for Muslims. It further noted that Greek case law was inconsistent about “whether the application of Sharia law [sic] is compatible with the principle of equal treatment and with international human rights standards.” In addition, the Court emphasized a right to "free self-identification”: people should be free to opt out of differential treatment from the government on the basis of belonging to a minority group, and the government should not force minorities into a special legal category in the name of protecting them. The Court held that Greece, by compelling the Muslim minority of Thrace to follow Islamic law, had violated Article 14 (prohibition of discrimination) of the 1950 European Convention on Human Rights.

The court accepted the plaintiff's claim in part, distributed the estate (four properties, five vehicles) of the deceased as it saw fit, and ordered the parties to share costs.

This regional regulation makes provision for the protection of women and children from violence. The regulation places the onus on families and parents to protect women and children from all forms of violence by instilling in each other, among other values, values relating to religion.

The court ordered the parties to abide by the contents of the deed of reconciliation, which delineated the borders and limitations of the house in question, as agreed to by both parties.

The cassation applicant had married the deceased in 1997. She had one daughter from her previous marriage (her first husband had passed away), and the deceased had four children (first-fourth cassation respondents) from his first wife (fifth cassation respondent). The cassation applicant and the deceased never had any children. After the deceased passed away on 27 December 2011, ownership of their property came into question. The cassation applicant and the deceased obtained the property in 2003, five years into their marriage, and the cassation applicant sought: 50 per cent in her favour, the other 50 per cent split between the five cassation respondents. At the time of trial, the first cassation respondent was in possession of the property, valued to be worth IDR 500 million. The cassation applicant claimed the cassation respondents had not transferred to her half of the property, and based her cassation appeal on the following:

1. As the wife of the deceased, she should enjoy certain inheritance rights;

2 and 3. That while she incorrectly brought a joint asset action, rather than an inheritance claim, prior to the deceased's death, her inheritance claim should still stand;

4. That such an inheritance claim still details the division of joint assets;

5. That the appellate court had shown no interest in examining the case file and her reasons for appeal;

6.1 That the appellate court had applied the law incorrectly insofar as it had failed to properly assess the cassation applicant's additional documentary evidence, most notably that the property had been purchased prior to the cassation respondents selling the joint land of the deceased and the fifth cassation respondent (first wife of the deceased); and

6.2 That the cassation applicant would lodge an inheritance claim if her appeal in this instance were dismissed.

The Supreme Court acceded to the cassation appeal concurring that, while the cassation applicant had incorrectly filed a claim based on joint assets, rather than inheritance, the cassation respondents had also made formulaic errors in their submissions, including incorrectly making the fifth cassation respondent a party to the proceeding. Also, the court agreed that the lower court had failed to consider crucial evidence produced by the cassation applicant regarding ownership of the property.

The appellants sought to challenge the ruling of the Blangkejeren Shari'a Court in terms of how the lower court had distributed land under a will to the relevant beneficiaries.

The Court dismissed the appeal, reaffirming the decision of the lower court.

The deceased was survived by two wives, five sons and three daughters. In his will he left behind land and a house, proceeds from the sale of which were to be distributed to all 10 beneficiaries. The appellants sought to challenge the Bireuen Shari'a Court's interpretation and subsequent distribution of the will.

The Court found that the decision of the lower court was correct, however, it chose to restate the distribution per beneficiary in a clearer fashion.

The appellants sought to challenge the manner in which the Lhokseumawe Shari'a Court distributed the estate of the deceased between the appellants and respondents (one-third to the respondents, two-thirds to the appellants).

The Court allowed the appeal, but only restated the distribution of the estate more specifically vis-a-vis each beneficiary.

The Court overturned the decision of the Banda Aceh Shari'a Court, finding that what the appellant was seeking did not solely belong to NT (deceased mother), but was the joint property of NT and AH (deceased father).

The Court also held that the respondent's claim before the lower court was unclear and, given his low educational background and knowledge of the law, could not be inferred. Rather, he would need to make a clear and explicit claim.

The appellants sought to challenge the decision of the Banda Aceh Shari'a Court (lower court), which had stipulated the beneficiaries of the deceased, as well as the manner in which the estate of the deceased was to be distributed.

The Court concurred with the decision of the lower court, but added that the appellants' claim in regards to the daughter procuring the estate in its entirety, based on Indonesian Supreme Court Jurisdiction No. 184K/AG/1995, was inpplicable in this case because the child of a beneficiary had passed away, rather than the child surviving the beneficiary.

Moreover, the Court held that the respondents' objection in regards to the standing of the replacement beneficiary, unknown in Sunni fiqh, was not a valid reason, because Presidential Decision No. 1 of 1991 (Compilation of Islamic Laws) had already provided positive jurisprudential guidelines in this regard. The Court cited the qaedah that permits a government to remove any inconsistency or difference.

B bin B's two beneficiaries, his sons Z bin B and A bin B, passed away in 1964 and 2007 respectively. Z bin B's beneficiaries were his daughters N binti Z (the appellant) and H binti Z (first respondent). A bin B's beneficiaries were his children Y bin A (second respondent), M bin A (third respondent), MZ bin A (fourth respondent), N Binti A (fifth respondent) and NU Binti A (sixth respondent).

As the beneficiaries under B bin B's will had passed away (A bin A and Y bin A), the Bireuen Shari'a Court (lower court) divided shares in the 1600m-squared parcel of land bequeathed to them to their beneficiaries (the parties). N binti Z and H binti Z were granted a 25 per cent share each, Y bin A, M bin A and MZ bin A 12.5 per cent each, and N binti A and NU binti A 6.25 per cent each.

The appellant successfully challenged the lower court's ruling, the Court rendering the decision null and void because the lower court had determined more than requested by the appellant. While the appellant had only requested that the lower court stipulate she and the first respondent to be beneficiaries under Z bin B's will, that Z bin B's estate be distributed, and that the lower court define their individual claims to the estate, the lower court had also stipulated the beneficiaries to B bin B's will, and divided B bin B's estate.

The court found that the respondents had principally sought from the lower court a distribution of the estate of D.G, who had passed away in 1945. Citing Supreme Court Jurisdiction No. 181.K/AG/1994, the court noted that the rights of a deceased's children, parents and spouse take precedence over those of any other concerned parties. This decision, the court found, was all the more authoritative as it was based on the opinion of Ibnu Abbas, an interpreter and commentator from Muhammad's inner-circle, who interpreted the word 'walad' in verse 176 of Surah An-Nisa' to include both boys and girls.

Accordingly, the court found that A binti D.G (sibling of the deceased H.G) could not be stipulated as a beneficiary of H.G because H.G had a daughter, Z binti H.G. That said, Z binti H.G could similarly not be stipulated as a beneficiary of A binti D.G's estate, despite having been stipulated as a replacement beneficiary, because A binti D.G was survived by her daughter M binti D.

The lower court's distribution of D.G's estate did not reflect this, causing the court to pass its own, far more detailed judgment. The distinguishing inclusion was a lineage of beneficiaries relevant to the distribution of the estate.

The appellant sought to challenge the decision of the Jantho Shari'a Court (lower court), which had dismissed his claim in full.

The Court did not concur with the judgment of the lower court, but still found that the appellant's claim lacked clarity in terms of, among other things, its inclusion of beneficiaries who had already passed away, and persons who had replaced those beneficiaries that had passed away. Accordingly, it dismissed the appeal and ordered the appellant to pay costs.

N passed away in 1963 and his wife B passed away in 1989. They stipulated as their beneficiaries their three children: B bin M (appellant), Z bin N (first respondent) and H binti M (deceased). H binti M passed away in 2006 and was survived by her husband M bin H (second respondent), as well as her five children (third-seventh respondents).

With regards to N and B's joint assets (several parcels of land) bequeathed to their children, the Meulaboh Shari'a Court (lower court) granted the three children the following shares: B bin M, as the son: 2/4; Z bin N, as a daughter: 1/4; and H binti N, as a daughter: 1/4. Of H binti N's 1/4 share, her husband (second respondent) was granted three-quarters, with the remainder being distributed between the children (third-seventh respondents), the daughters receiving 3/24, and the sole son 6/24.

In affirming the decision of the lower court, the Court noted that it had urged the parties to reconcile prior to and after its adjudication, but that the respondents had maintained their claim.

T passed away on 6 November 1987 and Kh binti B (T's wife) on 28 October 2006. Kh binti B bequeathed IDR 614,515,366.00 and several parcels of land (the estate) to her five children (the appellants and respondents). The Jantho Shari'a Court (lower court) found that the three sons were to receive two-eighths each of the estate, and her two daughters one-eighth each.

The daughters (second and third appellants) and one of the sons (first appellant) sought to challenge the lower court's ruling. The Court affirmed the lower court's decision, however, finding there to be no incorrect application of the law.

The appellant sought to challenge the decision of the Meureudu Shari'a Court (lower court), which had dismissed his claim in its entirety.

The Court disagreed with the judgment of the lower court for several reasons. Firstly, the respondent, in his response (dated 4 August 2009), had stated that the object in dispute was part of his parents' estate and was bequeathed to the respondent via a deed executed in 1996 (dated 27 December 1996) while his parents were still alive. While this accorded with information provided by two of the respondent's witnesses (Ibrahim Bin Risyad, and the respondent's older sibling Asiah), it contradicted the respondent's own rebuttal.

On the other hand, the appellant's claim was supported by information provided by witnesses the appellant had produced. Moreover, the elements of a bequest had all been met, most importantly the requirement of consent. The Court made specific mention of the importance of consent in establishing a gift, quoting Syekh Sayyid Sabiq in Sunnah Jilid III.

Accordingly, the Court dismissed the 1996 deed as having any legal effect, and found the bequest to be in the appellant's favour.

The Tapaktuan Shari'a Court (lower court) found that Siti Aminah (deceased) had left to her husband one-quarter of her estate, to her daughter Rosmalena binti Djamiudin (appellant) one-quarter, and her son Ridwansyah B.Ac bin Djamiudin (respondent) two-quarters. As her husband (Djamiudin) had also already passed away, his one-quarter share was left to his three children as follows: one-fifth to the appellant, two-fifths to the respondent, and two-fifths to the replacement beneficiary and wife (following respondent) of his deceased son Sofyan bin Djamiudin, Anita. Of Sofyan bin Djamiusin's two-fifths, he had bequeathed one-eighth to his wife (following respondent), more than one-half (58.33 per cent) to his son Fadel Muhammad, and more than one-quarter (29.166 per cent) to his daughter Hirah Manda Sofyani.

The Court found that the lower court had erred in stipulating the co-respondent as the replacement beneficiary of her deceased husband Sofyan because her relationship with Sofyan was one through marriage, not blood. The Court also found that a bequest, supposedly made by Siti Aminah on 15 October 1981, was rendered null and void as Siti Aminah had passed away on 29 April 1981. Accordingly, it redistributed the various estates based on these findings.