SHARIAsource

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.

University of Toronto

The Khoja Case, also known as the Aga Khan Case, is one of the rare cases profiling the Shia Imami Nizari Ismaili community (henceforth “Ismailis”). Decided in the High Court of Bombay in 1866 by the Honourable Sir Joseph Arnould, this case was brought by a series of Ismaili plaintiffs who argued that the Ismaili Community was a Sunni community, and therefore did not owe allegiance to the Aga Khan as its leader. The Court held that the Ismaili Community was in fact a Shi’a community, that the Aga Khan was the authoritative head of the community, and therefore, that he had the right to exercise his traditional modes of authority.

The prosecution submitted that the accused had raped the 13-year old victim, his own biological daughter, contrary to arts 49, and 1(30) and (25) of Aceh Qanun No. 6 of 2014 on Criminal Law, on a day in October 2015 at around 4.00pm, and then again on 5 November 2015 at around 4.30pm. The prosecution submitted that upon learning that his daughter had been physically intimate with her own step-father, the accused visited her at his sibling's home, where she was living, and raped her on at least two occasions. On the first occasion, the accused allegedly told the victim that he was raping her because she was no longer virginal ('udah hancur'), that she therefore had ruined her future, and that he would take her to Medan where she could become a prostitute ('lonte'). On the second occasion, on 5 November 2015, the accused again allegedly raped the victim while threatening her that he would either kill her or send her to Medan to become a prostitute.

A medical report submited by the prosecution revealed that the victim had been raped on several occasions. The prosecution submitted that, pursuant to arts 49, and 1(30) and (25) of Aceh Qanun No. 6 of 2014 on Criminal Law, the prescribed punishment for incestuous rape is either between 150 and 200 strokes of the cane, a fine of between 1500 and 2000 grams of pure gold, or a prison sentence of between 150 and 200 months. The prosecution requested, therefore, that the accused be imprisoned for 16 years.

The court acknolwedged that the charge was one of rape, rather than zina (sexual relations out of wedlock), meaning that the evidentiary burden contained in Aceh Qanun No. 7 of 2013 on Criminal Procedure applied, rather than that of four witnesses, as in cases of zina. Moreover, as Aceh Qanun No. 6 of 2014 prescribed a ta'zir punishment for rape, the court was of the opinion that a prison sentence would reduce the chances of the accused reoffending. In sentencing the accused to 15 years' jail, less time already served on remand, the court also acknowledged the seriousness of the offence and the need to protect children from such abuse, citing Law No. 35 of 2014 on Amendments to Law No. 23 of 2002 on Child Protection.

“Held, where the plaintiff sued for the custody of her minor sister, as her legal guardian under Muhammadan law, that the fact of the plaintiff being a prostitute was, although she was legally entitled to the custody of a minor, a sufficient reason for dismissing the suit in the interests of such a minor.”

"Held, being in possession of a certain real property on her own account, and on account of her nephew and niece, minors, of whose persons and property she had assumed charge in the capacity as guardian, sold the property in good faith and for valuable consideration, in order to liquidate ancestral debts, and for other necessary purposes and wants of herself and the minors. Held that, under Muhammadan law and according to justice, equity and good conscience, the sales were binding on the minors."

The appellant sought to challenge the decision of the Bireuen Shari'a Court (lower court), which had granted the respondent an irrevocable divorce (talak satu bain shugra). The Court, however, dismissed the appeal, only effecting one minor change to the wording of point two in the decision of the lower court.

The Greek General Secretariat, Ministry of the Interior drafted a bill designed to prioritize Greek civil law over religious (namely Islamic) family law. This was due to concern about the rights of young Muslim minority women. However, the bill was never brought before the Greek Parliament.

Brunei lawmakers gazetted the notification of commencement of certain sections of the Syariah Penal Code Order of 2013 in April 2014, announcing that the sections of the Code would commence on May 1, 2014.  This first stage of implementation included only sections regulating minor crimes and misdemeanors.

After fleeing worn-torn Syria, a married Syrian Sunni couple, a fourteen-year old woman, A, and twenty-one-year old man, H, arrived in Germany. Because A was a minor, Child Protective Services assumed legal guardianship over A, which H subsequently contested. As a result, A and H were allowed to spend weekends together. Child protective services, however, sought to assume full custody over A, thereby prohibiting any further interaction between A and H. The Higher State Court of Bamberg determined that according to Germany’s civil code (BGB) § 1633, stating that a married minor may decide herself where she would like to live and with whom she wants to interact, Child Protective Services may remain the legal guardian of A but cannot control where she lives.

The appellant sought to challenge the decision of the Bireuen Shari'a Court, which had dismissed its counterclaim in full, while stipulating the assets it determined to be jointly-owned by the parties.

The Court generally concurred with the judgment of the lower court. It did, however, make several minor amendments to the lower court's judgment, notably, granting the respondent's exception claim, and dismissing the appellant's counterclaim because of its general and unclear nature.

In light of Law Replacement Government Regulation No. 1 of 2014, this law replacement government regulation makes minor amendments to arts 101 and 154 of Law No. 23 of 2014 on Regional Administration, revoking the authority of the Regional People's Representative Councils (Dewan Perwakilan Rakyat Daerah) to elect governors and regents/mayors.

In this opinion, addressed to the Official Gazette, the Secretary of the Guardian Council invalidated Article 26 –Note 1 of the Law on the Formation, Duties, and Election of National Islamic Councils 1996. He argued that because Guardian Council does not have any supervisory authority over the decisions of the City Councils (unlike legislative acts), religious minorities could not represent Muslims where majority of residents are Muslims.

The appellant sought to challenge the decision of the Banda Aceh Shari'a Court (lower court), which had granted the respondent an irrevocable divorce (talak satu bain sughra), as well as custody of the parties' son. The lower court also ordered the appellant to provide the respondent with monthly child maintenance to cover the child's living costs and school fees until the child was of age and independent.

The Court dismissed the appeal, only making minor amendments to the wording of the lower court's judgment.

The appellant sought to challenge the decision of the Banda Aceh Shari'a Court (lower court), which had granted the respondent an irrevocable divorce (talak satu bain sughra), as well as custody of the parties' son. The lower court had also ordered the appellant to provide the respondent with monthly child maintenance to cover the child's living costs and school fees until the child was of age and independent.

The Court dismissed the appeal, only making minor amendments to the wording of the lower court's judgment.

University of Kansas School of Law

Examines the history, doctrine, texts, and role of Islamic law throughout the world. The course focuses on the background and birth of the Arab-Islamic Empire, the life and times of the Prophet Muhammad, the development of Islam, the Moghul and Ottoman Empires, the Qurʾān and Sunna and other sacred texts, the principal schools of Islamic law, the status of women and religious minorities, and basic principles of some of the substantive areas of law, including criminal, family, inheritance, contract, business, and banking law.

In this case, the defendant, a Muslim male to whom a 13-year old child was "married," shortly after the marriage, had engaged in non-consensual intercourse with the minor. While pleading guilty to the charge of first degree sexual assault on a child, the defendant nevertheless argued that his Islamic upbringing and background prevented him from fully appreciating the nature of the criminal conduct and he asked that this be considered a mitigating factor. The Court of Appeals of Nebraska rejected the claim, ruling that the defendant's culture and upbringing could not be taken into consideration as factors mitigating his culpability.

In this case, deciding on the issue of whether a note was subject to garnishment which entailed deciding on the issue of whether the note was personal or communal property, the Court of Appeals of Arizona first looked into Moroccan Law (which the Court called "Islamic law"), which directed the Court to look at Syrian law applicable to its Christian minority, ruling that the note was separate and personal property and thus subject to garnishment. The application of non-US law (ultimately, Syrian law and not Islamic law) was not objected to by either party.

Lawmakers in Brunei passed the Syariah Penal Code Order of 2013 in October of that year, and implemented the law in two stages: sections regulating minor crimes and misdemeanors took effect on May 1, 2014, and the remainder—including serious crimes and felonies that entail classical Islamic criminal law’s fixed crimes and punishments—took effect on April 3, 2019. This Islamic criminal code exists in parallel to Brunei’s “civil” (or secular) criminal laws, which borrow from British law. Among other provisions, Brunei’s new code criminalizes failures to perform various religious obligations, sexual relations out of wedlock, and gay or lesbian sexual relations. It includes punishments of whipping, amputation of hands and feet, and stoning. Notably, the most severe punishments accompany very high evidentiary standards as laid out within the Code, and in the related Syariah Courts Criminal Procedure Code Order, the SCCPCO of 2018.