SHARIAsource

This document is a beyānnāme, or declaration, sent by the Ottoman reʾīsül-kuttāb (chief scribe) to Britain's ambassador to the Ottoman Empire, justifying the Ottoman declaration of war on Russia by explaining Russia's violation of treaty obligations. The document gives insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law. Its use of the phrase naḳż-ı ʿahd (breaking the treaty), which has its origins in a specifically Qurʾānic context illustrates one way in which war was legitimized within the Ottoman Empire. Other phrases used in the beyānnāme demonstrate how Ottoman legal plurality functioned within a martial context. 

This statute regulates the application and implementation of practices that promote, support and uphold the protection of human rights and freedoms in Indonesia. It also reiterates some of the human rights guaranteed in the 1945 Constitution and its subsequent amendments. Article 7(2) of the statute provides that international human rights laws ratified by the state 'become the responsbility of the central government'.

The plaintiff brought a case before the General Court of Roudehen seeking the Court’s authorization for remarriage. The Court rejected his claimed and stated that Article 16 of the Family Protection Law 1974 was unconstitutional.

On March 6, 2017, President Donald J. Trump issued a revised Executive Order which barred, with certain exceptions, entry to the United States of nationals from six predominantly Muslim countries, suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (political activist Linda Sarsour, as well as 26 additional Muslim individuals) filed an emergency motion for a temporary restraining order and/or preliminary injunction. While other litigation opposing the revised Executive Order were filed to enjoin only Sections 2 and 6 of the revised Executive Order, in this case the Plaintiffs asked the Court to enjoin the enforcement of the revised Executive Order in its entirety. In order for the Plaintiffs to succeed, they had to prove that (1) they are likely to succeed on the merits of their case; (2) they are likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of the equities tips in their favor; and (4) an injunction would be in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

In this circuit court decision, which affirms the district court's judgment striking down the Oklahoman constitutional amendment to prohibit courts from considering "Sharia Law" in their decisions, the Court rules that the constitutional amendment violates Muslim petitioner's right to free exercise, as the ban imposed prevents him from engaging in many religious acts such as executing a will. The amendment also sends an unmistakable message to the Muslim community that they are considered outsiders - a message that is impermissible under the Federal Constitution. 

These materials include the results relating to gender of a perceptions survey carried out in three sharīʿa states in early 2016, which included questions on hisbah and women, zakat and gender issues, practices harmful to women, and education of girls and women. Also included is documentation of a number of public enlightenment and sensitization programs on women’s rights carried out in the sharīʿa states, and of the effect of sharīʿa implementation on the education of girls and women.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

Summary for a case in which the Western Cape High Court in Cape Town declared the 1953 Wills Act inconsistent with the South Africa Constitution, because the statute’s provisions were previously interpreted to recognize only legal marriage and not Muslim marriages.

In a 3-2 decision, the Supreme Court of India declared triple ṭalāq unconstitutional and gave India’s parliament six months “to consider legislation” for handling triple ṭalāq. In its opinion, the Court cited global advances in Islamic family law (in India, called Muslim personal law) in “even theocratic Islamic states” as evidence of the need for reform.  The Court also noted that the Muslim Personal Law (Shariat) Application Act of 1937, which protects the religious freedom of Muslims in India, does not constitutionally protect practices deemed “anti-Qur’anic.” Asserting that triple ṭalāq is such a practice, the Court held that it could not be protected under the Indian Constitution.

In preambular statement (c), this regional regulation states that begging constitutes a mental illness or laziness not in accordance with religious teachings, while sexual promiscuity constitutes conduct that is contrary to social and religious norms, that endangers young lives, and increases the spread of HIV/AIDS. The regulation states that the handling of vagrancy and begging, as well as sexual promiscuity, is based on the values of the Pancasila ('five principles' - Indonesian state ideology), and principles of human rights (art 2). The regulation prohibits vagrancy and begging (art 4(1), and prohibits such behaviour en masse or alone, with the intent to engender pity in others (art 4(2)). Moreover, it prohibits the equipping of other persons, including babies and infants, to beg (art 4(3)). It also prohibits prostitution and sexual promiscuity (arts 7 and 8).

Violation of art 4(1) and (2) carries a maximum penalty of three months' imprisonment or IDR 1 million (art 20(1)), while contravention of art 4(3) and (4) carries a maximum penalty of 15 days' imprisonment and/or a fine of between IDR 5-50 million (art 20(2)), and contravention of arts 7 and 8 carries maximum penalties of three months' imprisonment and/or IDR 50 million (art 20(5)-(7)).

In preambular statement (b), this regional regulation states that Qur'anic literacy education constitutes a Muslim societal life activity in North Penajam Paser regency (Penajam Paser Utara), making it necessary to standardise the licensing of Qur'anic literacy teachers. The aim of this regulation is to improve Qur'anic comprehension and competency in all Muslims, starting from the age of pre-school (arts 3 and 4). Accordingly, it makes it compulsory for all primary, middle, and high school students to possess Qur'anic literacy skills (art 8(1)). Every middle school and high school is obliged to make intra-curricular efforts to improve the Qur'anic literacy of those of its students who are not yet literate in the Qur'an (art 8(2)).

The preamble of this regional regulation acknowledges the constitutional guarantee to freedom of religion, states that the realisation and implementation of Islamic teachings are reflected in the clothes people wear in everyday life, that covering one's aurat (genitals and other parts of the body Islam requires to be covered) is obligatory in Islam, and that communal life that reflects Islam, and efforts to realise a faithful and God-fearing society, requires the implementation of this Regulation.

The regulation mandates that people must wear Muslim dress in government and private-sector offices, state and private schools, universities, educational and non-educational institutions, and at official events. The general public is also encouraged to wear Muslim dress in everyday life, including at general entertainment events.

Men are required to wear long trousers, with either a long- or short-sleeve shirt, while women are required to wear a long-sleeve shirt covering their hips, a skirt or long trousers that reaches the top of their feet, as well as a headscarf that covers their hair, ears, neck, and chest. None of these clothes are to be tight-fitting.

For Muslim students, boys are to wear long trousers, with either a long- or short-sleeve shirt. Girls are to wear a long-sleeve shirt that covers their hips and chest and reaches their knees, a skirt or long trousers that reaches the top of their feet, as well as a headscarf that covers their hair, ears, neck, and chest. Again, none of these clothes are to be tight-fitting.

In Javed & Ors. v. State of Haryana & Ors.,[1] the Supreme Court of India (the “Court”) considers whether a non-retroactive state law barring elected members of various local governments from having more than two children is violative of various articles of the Indian Constitution (the “Constitution”). The law was challenged by disqualified candidates who argued that the law was discriminatory, arbitrary and unreasonable, that it violated fundamental rights per Article 21, and interfered with religious freedom guarantees in Article 25.[2] The Court holds that the law is reasonable and not arbitrary or discriminatory given India’s overpopulation problem and the perception of a clear nexus between reducing population and encouraging local leaders to be role models.[3] The Court also holds that contesting and holding elected office are not fundamental rights, and even if they were, the public health limitation would mean that the law does not encroach on such rights.[4] But the focus of this paper is on the Court’s analysis with respect to religious freedom, where the Court in effect holds that the public health and welfare limitation must govern and that regardless, polygamy, and having more than two children is not an “integral part” of Islam and there is no conflict with the Muslim personal law.[5]

[1] Javed & Ors. v. State of Haryana & Ors. (2003) 8 SCC 369 (India).

[2] Supra note 2 (Article 25 of the Indian Constitution is analogous to the American 1^st amendment’s religious freedom protections, but with an explicit public health limitation).

[3] Id.

[4] Id.

[5] See id. (India has separate personal codes addressing matters such as marriage for different religious communities..

In Ayub Masih v. State (23 Aug 2022), Justice Qazi Faez Isa and Justice Syed Mansoor Ali Shah granted bail on an interim petition, pending trial, to the plaintiff Salamat Mansha Masih, who was arrested for “preaching and making blasphemous remarks” in April 2021. Masih was denied bail by the Sessions Judge and the Judge of the High Court, who relied on the First Information Report (FIR), which alleges that the petitioner was a preacher, and the statements of the four witnesses. Upon review, the Supreme Court declared that an “examination of the charge reveals material deficiencies ... [and] does not contain a number of prescribed requirements with regard to the framing of the charge,” casting doubt on the reliablity of the FIR and testimony from the four witnesses. Namely, the Court pointed to the misidentification of the petitioner as a preacher, and the lack of corroborating evidence for the witness testimony. Remanding the case without deciding on the merits, the Court charged the lower courts with observing the constitutional requirements for fair trials in blasphemy and other criminal law cases. Constitutional requirements of applying shari'a, alongside its fundamental rights and fair trial provisions, include consideration of the Islamic law doubt canon instructing judges to ”avoid criminal punishments in cases of doubt”), and thereby requiring heightened procedures, a beyond a reasonable doubt standard for criminal convictions. For further studies of the doubt canon, together with the heightened procedures, standards of proof, and interpretive norms requiring lenity in Islamic criminal law, see Intisar Rabb, Doubt in Islamic Law (Cambridge University Press 2015).

In 2014, a Malaysian federal court invalidated an Islamic state law criminalizing the public behavior and appearance of transwomen (people identifying as women and identified as men at birth). The Court ruled that the Malaysian Constitution’s fundamental rights trumped state-legislated Islamic law. It relied heavily on the notion that the Muslims being prosecuted suffered from Gender Identity Disorder (GID), over which they had no control. Evidence of the plaintiff’s GID and information about GID was provided to the Court by two psychiatrists, a psychology, and a sociologist.

In Indonesia, the Islamic practice of polygamy is circumscribed by specific provisions in Law No.1 of 1974 on Marriage. Mohammad Insa was a Muslim man who wished to take a second wife without any state interference, and without due consideration for the rights and feelings of his established wife. He argued that polygamy is a religious duty, and one that he was entitled to undertake in accordance with the 1945 Constitution, which guarantees freedom of religion. He petitioned the court for a judicial review of those legal restrictions on polygamous marriages. This decision to dismiss his petition was handed down by the court on 3 October 2007, after several months of lengthy deliberations and media attention. The court reasoned that art 28J(2) of the Constitution not only authorises the state to regulate religion, but obliges it do so.

The applicant, Suryani, requested that the Constitutional Court review the constitutionality of art 49 (and its elucidatory statement) of Law No. 7 of 1989 on the Religious Judiciary. Article 49 of Law No. 7 of 1989 states: 'Religious courts are tasked and authorised to investigate, determine, and resolve cases in the first instance between persons of the Islamic faith in the areas of: a. marriage (perkawinan); b. inheritance (waris); c. wills (wasiat); d. gifts (hibah); e. endowments (wakaf); f. alms-giving (zakat); g. infaq; h. shadaqah; and i. shari'a economy (ekonomi syari'ah). The applicant submitted that art 49 circumscribed his constitutional right to freedom of religion and to practise that religion in accordance with that religion's teachings, as guaranteed by arts 28E(1), 28I(1) and (2), and 29(1) and (2) of the Constitution.

In dismissing the application, Justice Moh. Mahfud MD, on behalf of the court, noted that the applicant's submissions were incompatible with the relationship between the state and religion in Indonesia. Specifically, Moh. Mahfud MD held that Indonesia is not a country based on one religion, nor is it a secular state that transfers religious affairs to the individual and society. Rather, Indonesia is a state based on the belief in Almighty God (ber-Ketuhanan Yang Maha Esa), which protects every person's right to practise their respective religion. In abiding by the Indonesian state philosophy of Pancasila ('five principles'), national law must, therefore, guarantee state ideology and territorial integrity, while facilitating just and courteous religious tolerance. It follows that Indonesian national law is a vehicle for national unity and that the Indonesian state is not based on majoritarianism or minoritarianism, ethnicity or race. While it can be said that Islamic law constitutes a source of national laws, it is not the sole source thereof, with customary (adat) law, Western law, and other traditional legal sources also serving as sources of national law.

This Country Profile provides a basic overview of the legal history and institutional structures of the Union of the Comoros (Udzima wa Komori (Comorian); Union des Comores (French); Jumhuriyat al Qamar al Muttahidah (Arabic)), based on research produced by the Library of Congress. Under Comoros' Constitution, Islamic law (sharīʿa or fiqh) has legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Holy See/Vatican City-State (La Santa Sede/Stato della Citta del Vaticano), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under the Vatican City-State's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Federal Republic of Somalia (Jamhuuriyadda Federaalkaa Soomaaliya), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Somalia's Constitution, Islamic law (sharīʿa or fiqh) has legal status.