SHARIAsource

This Country Profile provides a basic overview of the legal history and institutional structures of the Republic of Tunisia (Al Jumhuriyah at Tunisiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Tunisia'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 Bosnia and Herzegovina (Bosna i Hercegovina), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under the Bosnia and Herzegovina’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 Cooperative Republic of Guyana, based on research produced by the Library of Congress. Under Guyana's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

In Danial Latifi & Anr v. Union of India, the Supreme Court of India (the “Court”) considers whether the Muslim Women Protection of Rights on Divorce Act, 1986 (“the Act”) abrogates its ruling in Mohd. Ahmed Khan v. Shah Bano Begum and Others (“Shah Bano”).[1] In Shah Bano, the Court held that divorced Muslim women unable to support themselves have a right to lifetime maintenance under Section 127 of the Indian Code of Criminal Procedure, which does not conflict with Muslim Personal Law[2] ostensibly limiting rights to mahr[3] and maintenance during the period of iddat.[4] [5] In Danial Latifi, the Court holds that the Act did not overturn Shah Bano, but instead that divorced Muslim women who are unable to maintain themselves are entitled to receive a one-time lump sum payment during the period of iddat sufficient for lifetime maintenance. The Court chiefly justifies this ruling by arguing that abrogating Shah Bano, would violate various constitutional rights of Muslim women. The Court also makes prudential arguments concerning the impact of abrogating Shah Bano on divorced Muslim women’s economic circumstances, and moreover holds that abrogation would be contrary to Islamic law.

[1] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).

[2] India has a uniform criminal code, but different personal codes addressing family law for various religious communities. This dual system is very controversial in India.

[3] A sum agreed upon prior to marriage to be given to a wife in two parts (one deferred and one immediate).

[4] The roughly three-month period where re-marriage is forbidden to divorced women.

[5] Shah Bano produced political backlash resulting in the passage of the Act referenced above, with the intention of overturning the ruling. See supra note 1.

This Country Profile provides a basic overview of the legal history and institutional structures of the Sultanate of Oman (Saltanat Uman), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Oman's Constitution, Islamic law (sharīʿa or fiqh) is a primary source of legislation. 

This Country Profile provides a basic overview of the legal history and institutional structures of the State of Qatar (Dawlat Qatar), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Qatar's Constitution, Islamic law (sharīʿa or fiqh) is a primary source of legislation. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Republic of Azerbaijan (Azarbaycan Respublikasi), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Azerbaijan'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 United Arab Emirates (Al Imarat al Arabiyah al Muttahidah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under the UAE's Constitution, Islamic law (sharīʿa or fiqh) has primary legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Saudi Arabia (Al Mamlakah al Arabiyah as Sa'udiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Saudi Arabia's Constitution, Islamic law (sharīʿa or fiqh) is the primary source of legislation.  

Book I of the Compilation of Shari'a Economy Laws (Kompilasi Hukum Ekonomi Syari'ah) covers what constitutes a legal subject before the religious courts in shari'a economy-related disputes, as well as property deriving from trusts (amwal).

This Country Profile provides a basic overview of the legal history and institutional structures of the Lebanon Republic (Al Jumhuriyah al Lubnaniyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Lebanon's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

Holding: A witness must believe in a God in order to be sworn in court. A court may hear testimony about a witness’ belief or disbelief to determine whether the witness may be sworn. Whether a witness believes or disbelieves in a future state of rewards and punishments goes only to his credibility as a witness, not to his ability to testify.

Procedural posture: Plaintiff objected to the competency of a witness in a case before a Massachusetts court of common pleas, and the Court overruled the objection. The jury found for defendants, and plaintiff appealed. Islamic law is not directly relevant, except that the court notes that a “mahometan” belief suffices for swearing an oath.

Judgment: Reversed and objection sustained in an opinion authored by Justice Wilde.

Facts: The plaintiff objected to the competency of a witness on the grounds that the witness did not believe in God. The plaintiff offered testimony from other witnesses to prove this assertion. The lower court declined to hear the testimony and overruled the objection. On appeal, the Supreme Judicial Court of Massachusetts noted that the general rule of evidence does not allow a witness to disqualify himself by declarations not made under oath. However, there is an exception for cases such as this one to prove the witness’ belief or disbelief in God, as only those who believe in God may testify in court. Article 2 of the Massachusetts Constitution—which protects citizens from being “hurt, molested, or restrained, in [their] person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of [their] own conscience”—does not apply to atheists, and even if it did, rejecting a witness for being an atheist would not violate the statute. Therefore, the Court concluded, the plaintiff should have been allowed to introduce testimony showing that the witness did not believe in God and therefore could not be sworn.

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.

To fund construction for a new building without violating Islamic law's prohibition against interest, the Islamic Center of Nashville (ICN) entered into an ijāra agreement with Devon Bank; the bank created a subsidiary for the purpose of the ijāra agreement. Under the agreement, Devon Bank had legal ownership of the building's title until ICN could fully purchase the building. After ICN paid for the building, ownership was transferred to ICN from Devon Bank. ICN applied for a property tax exemption, including for the time period in which Devon Bank held the title for the building. The state of Tennessee denied ICN the exemption for the period in which Devon owned the building, but granted it for the time after. ICN appealed that decision. The appellate court affirmed the district court's judgment on the basis of the Tax Injunction Act, which prohibits federal courts from hearing challenges to tax obligations if the taxpayer has adequate access to judicial review in state courts.  

The appellant sought to challenge Decision: 0133/Pdt.G/2014/PA.Mgl. of the Magelang Religious Court (lower court).

The court disagreed with the lower court's decision that it was precluded from adjudicating the case, instead finding that:

1. the religious judiciary, pursuant to art 49 of Law No. 7 of 1989 on the Religious Judiciary, as amended by Law No. 3 of 2006 and Law No. 50 of 2009, has the authority to examine shari'a economy cases; and
2. following Constitutional Court Decision No. 93 of 2013 (30 August 2013), the religious judiciary is the only judicial forum authorised to handle shari'a economy cases.

Therefore, the court, pursuant to art 15(2) of Law No. 20 of 1947 on Judicial Review, found that the Magelang Religious Court was authorised to adjudicate the case and ordered that it re-open the case.

The appellant sought to challenge the decision of the Surabaya Religious Court (5718/Pdt.G/2014/PA.Sby), which had found that it did not have the jurisdiction to adjudicate his claim.

The court grappled with the ambiguity as to an appropriate dispute resolution forum for shari'a banking disputes. It noted that between Constitutional Court Decision No. 93 of 2012, art 55 of Law No. 21 of 2008 on Shari'a Banking, and art 49(i) of Law No. 3 of 2006 on Religious Judiciary, the religious courts were not only authorised to resolve shari'a banking disputes, but all facets of shari'a economy. It also noted, however, that dispute resolution, purusant to art 49(i) of Law No. 3 of 2006, provides that parties may decide not to resolve their disputes before a religious court. In this instance, as the parties had specifically designated the National Shari'a Arbitration Body (Badan Arbitrase Syari'ah Nasional) as their preferred dispute resolution forum, art 1338 of the Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata) mandated that the parties had to abide by the terms of their agreement. Therefore, the court dismissed the appeal.

The plaintiff’s legal counsel asserted that, on 24 August 2011, the plaintiff (deceased) and defendant (Bank BRI Syari’ah Cabang Surabaya) entered into a financing agreement (Al Qardh) to enable the plaintiff to purchase precious metals. Articles 1 and 2 of the agreement stated that the defendant would lend to the plaintiff IDR 95.4 million to be used to purchase 200 grams of gold from the precious metals company Antam. The gold was valued at IDR 106 million, and required a down payment of IDR 10.6 million. Pursuant to art 3 of the agreement, the plaintiff was required to repay the defendant in instalments of IDR 1,590,000, over a period of 60 months (until 24 August 2016). Upon repayment of two instalments, the plaintiff was then entitled to a cash back incentive, notably after repaying the first three instalments, as well as the twelfth instalment. Article 5(1) of the agreement also specified that to guarantee the return of the monies loaned, the plaintiff was to use the 200 grams of gold as collateral. To ensure the gold was cared for and stored for the period of the loan, the plaintiff paid to the defendant a monthly fee of IDR 1,033,500, making his total monthly repayments IDR 2,623,500.

The plaintiff successfully made these repayments for 29 months (until January 2014), while the defendant upheld its end of the bargain by paying to the plaintiff the cash back incentives up until November 2013, after which it defaulted. The plaintiff alleged that the defendant had failed to act in good faith, providing a variety of reasons to postpone the payment of the cash back incentives. The plaintiff paid to the defendant the remainder of his debt owing (IDR 49,290,000 as of 7 February 2014), hoping that the defendant would then repay to the plaintiff all its cash back incentives. The defendant, however, continued to provide the plaintiff with reasons as to why it could not uphold its end of the bargain. Finally, on 23 May 2014, the defendant paid to the plaintiff the cash back for January 2014 (IDR 912,925) and March 2014 (IDR 981,825) totalling IDR 1,894,750.  The plaintiff told the court he had instigated proceedings to recoup the unpaid cash back incentives totalling IDR 21,893,175. The plaintiff also objected to the defendant unlawfully debiting the plaintiff’s bank account for IDR 3,100,500 when the principal debt had been repaid. The defendant claimed that this debit was to cover the plaintiff’s ijarah (fee) for February 2014, in addition to a fine equal to two months’ ijarah, resulting from the plaintiff repaying the entire principal. The plaintiff, however, claimed that the debit was clearly unlawful and in contravention of arts 2(3) and 4(1)(c) of the ijarah agreement, which stated that the ijarah period concluded when the gold/items being stored and cared for by the defendant no longer constituted a surety and had been returned to the plaintiff. The plaintiff sought actual damages to the value of IDR 52,044,637, as well as compensatory damages to the value of IDR 1 billion for pain and suffering. For every day the defendant failed to pay after the seven day deadline he sought the court to enforce, the plaintiff requested that the defendant pay a one per cent fine. Moreover, if the defendant was unable to pay the damages sought by the plaintiff, the plaintiff recommended that the court order it to sell a property it owned and pay the damages from the proceeds of the sale. The plaintiff also recommended the court hand down judgment, the implementation of which could not be delayed if the defendant sought to appeal the decision.

The defendant lodged an exception to the plaintiff’s case, stating that the court was not authorised to adjudicate the case. The defendant argued that art 55 of Law No. 21 of 2008 on Shari’a Banking permits parties to specify in an agreement their preferred mode of dispute resolution, which does not have to be a religious court, that being a state court or arbitration body. It argued that the parties’ express desire, as stated in art 12 of the agreement, was to resolve any disputes relating to the agreement before the National Shari’a Arbitration Board (Badan Arbitrase Syariah Nasional – Basyarnas), if initial discussions and deliberation (musyawarah) were unsuccessful. Moreover, that any decision made by Basyarnas was first and final. The defendant also cited art 59 of Law No. 48 of 2009 on Judicial Authority, which acknowledges arbitration as a final and binding form of civil dispute resolution, based on a written agreement by the parties to the dispute. In the event one of the parties to a dispute does not abide by the ruling of the arbiter, art 59(3) enables the other party to lodge an application with the Chief Justice of the state court (Pengadilan Negeri) to compel the non-abiding party to do so. The defendant also noted that the elucidation of art 59(1) defines 'arbitration' as including shari’a arbitration.

In regards to the plaintiff’s principal claim, the defendant retorted that the plaintiff’s calculations in regards to the cash back payments were excessive. It also argued that the monthly instalments owed by the plaintiff were IDR 2,623,500 (this figure comprised IDR 1,590,000 based on the Al-Qard agreement, and IDR 1,033,500 per the ijarah agreement). The defendant asserted that the cash back arrangement derived from the Al-Qard agreement, because it would otherwise have been a violation of the current law and the agreement itself, meaning that it must be calculated based on the ijarah agreement, on the condition the plaintiff paid all repayments for the entire 60 months, without defaulting. For the plaintiff to repay the entire contract price, and then to expect to receive all cash back payments at once, was not what the parties had agreed to in the ijarah agreement. The defendant acknowledged that the plaintiff had overpaid the defendant by IDR 2,067,100 when paying out the contract price, and was happy to return the excess monies. In regards to the actual damages sought by the plaintiff, the defendant struggled to understand the plaintiff’s reasoning and calculations. More fascinating, however, was its summation of the IDR 1 billion sought in compensatory damages, which it described as a "fantastic number that fell from the sky" (nilai yang fantastis yang jatuh dari langit) that had no basis.

The court acknowledged that the parties had, in art 12 of the agreement, agreed to resolve any disputes via arbitration. It cited Surat Al-Maidah, verse 1, which encourages Muslims to uphold the agreements they make, as well as art 1338 of the Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata), which requires parties to an agreement to treat that agreement as law, and art 4(1) and (2) of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution, which permits parties to agree to arbitration as their preferred mode of dispute resolution. In regards to the Constitutional Court’s (No. 93/PUU-X/2012) decision regarding the elucidation of art 55(2) of Law No. 21 of 2008, and vesting in the religious judiciary absolute jurisdiction over shari’a banking cases, the court said it needed to consider the opinion of Prof Dr Laica Marzuki, former Supreme Court and Constitutional Court Justice, that Constitutional Court judgments have no retroactive application, but are prospectively binding. As the parties had reached their agreement on 21 August 2011, the court found that the Constitutional Court’s judgment was inapplicable and, therefore, the parties were bound by the contents of the agreement.

The Court noted that the appellant had lodged his complaint as illegal misconduct (perbuatan melawan hukum), something outside the jurisdiction of the religious courts. It acknowledged, however, that the basis of the appellant's claim did indeed constitute a shari'a economy case, for the purposes of the elucidation of Law No. 3 of 2006, art 49(22)(i). This was because the basis of the appellant's claim derived from a Murabahah (sale-purchase) financial agreement, and a power of attorney, which the appellant believed to be legally invalid. Under the power of attorney, the respondent was authorised to sell, transfer and relinquish all rights over a parcel of land to any person, including itself, if the appellant had failed to pay its debt owing to the respondent. The appellant submitted, however, that as he had signed the agreement without properly understanding its content and effect, it, along with the Murabahah agreement, should be declared null and void. The Court disagreed with the appellant, upholding the ruling of the lower court.

The plaintiffs, Sehatno Samiadoen and Tutik Ani Rahmawati, represented, Moses Antonius (complainant), who had filed a complaint with the Kalimantan Consumer Protection Group (Yayasan Lembaga Perlindungan Konsumen Kalimantan) on 30 May 2013, against the defendant's (PT Bank BNI Syariah) Banjarmasin branch. The complainant had entered into a shari’a-style home loan (Murabahah) with the defendant’s Banjarmasin branch for the purchase of a 150m² property on 18 September 2012. The term of the loan was 120 months (10 years), with monthly repayments of IDR 8,638,583, and an initial down-payment of IDR 147.5 million. The complainant also provided the defendant with payment for the first two months (IDR 17,277,166) in a show of good faith. The complainant and defendant also entered into a power of attorney agreement on 28 May 2012, pursuant to which the complainant vested in the defendant the authority to sell, transfer and release all rights over the property to any person, including to the defendant itself.

The complainant then experienced financial hardship and went into arrears. The defendant sent to the complainant three separate written warnings in regards to his default. The plaintiffs, however, told the court that the agreement contravened shari’a principles, as contained in Law No. 21 of 2008 on Shari’a Banking, as well as standard clausal requirements, as regulated in Law No. 8 of 1999 on Consumer Protection. Moreover, that as the complainant had only recently become a Muslim (muallaf), he did not properly understand Islamic shari’a, nor did he properly understand the content of the agreement, or the fact that he could not novate its terms. Consequently, the complainant felt aggrieved by the inclusion of standard clauses, which he believed contravened art 18(1) of Law No. 8 of 1999 on Consumer Protection. Pursuant to art 18(3) of Law No. 8 of 1999, the plaintiffs argued for the agreement to be rendered null and void, and sought to invoke art 62 of Law No. 8 of 1999, which prescribes a penalty of up to five years imprisonment or a fine of up to IDR 2 billion. The plaintiffs also sought to rely on the principle of presumption of liability, thereby compelling the defendant to prove its innocence, as it claimed was supported by art 23 of Law No. 8 of 1999.

The plaintiffs requested that the court grant an interlocutory order precluding the defendant from dealing adversely with the complainant’s property. They also requested that the court declare the defendant’s conduct illegal by rendering the three agreements the complainant had with the defendant null and void.

The defendant lodged an objection in regards to the plaintiffs’ choice of forum, citing art 45(1) of Law No. 8 of 1999, which requires an aggrieved party to lodge an application with either an institution assigned to resolve consumer-related disputes, or a civil court. The defendant also cited art 25(2) of Law No. 48 of 2009, which states that civil courts are authorised to adjudicate civil matters, as further proof that a civil court was the appropriate forum to hear the matter. The defendant further argued that the plaintiffs had erred in submitting their application to the court because, per arts 18 and 19 of their Murabahah agreement, the complainant and defendant had agreed to resolve any disputes in the Registrar’s office of the Banjarmasin Religious Court. The defendant also submitted that the special power of attorney, pursuant to which the plaintiffs were acting on the complainant’s behalf, was invalid due to formulaic irregularities.

In addition, the defendant sought to impugn the fact that the plaintiffs’ statement of claim referred to the complainant as if he were the plaintiff. Moreover, it argued that the plaintiffs’ assertion that the Murabahah agreement contravened shari’a principles, as contained in Law No. 21 of 2008 on Shari’a Banking, as well as clausal standards, per Law No. 8 of 1999 on Consumer Protection, was illogical and lacked legal basis. The defendant also criticised the plaintiffs for seeking to bring a civil action, pursuant to a civil statute (Law No. 8 of 1999), to a religious court.

The court found that, pursuant to Constitutional Court Decision No. 93 of 2012, the elucidation of art 55(2), which prescribed a civil forum as a suitable venue for shari’a banking dispute resolution, was invalid. Moreover, that a 'civil judicature' (Peradilan Umum), per art 45(1) of Law No. 8 of 1999 on Consumer Protection, was to be read and interpreted as a religious court (Pengadilan Agama). Accordingly, the court found that religious courts had absolute jurisdiction over this matter. Crucially, however, the court found that the parties had clearly specified the Banjarmasin Religious Court as the appropriate resolution forum, precluding it from handing down a judgment.

The plaintiff submitted that he had obtained a working capital borrowing facility from the first defendant, but that he had never received a copy of the agreement, despite making repeated requests to the first defendant. The conduct of the first defendant was therefore, the plaintiff submitted, in contravention of art 1338 of the Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata), and constituted a default on the parties' agreement. As a result, the plaintiff did not know when the agreement concluded nor the details of the repayments he was required to make in favour of the first defendant. Accordingly, the plaintiff submitted that he could not be held solely responsible if he failed to make a repayment pursuant to the agreement because the defendant had deliberately concealed the agreement from the plaintiff, contrary to art 1320 of the Civil Code.

When the plaintiff fell into arrears, the first defendant sought to auction the security property leveraged by the plaintiff to secure the loan. The plaintiff submitted, however, that the first defendant had failed to issue him with a warning before auctioning the property.

The court dismissed the plaintiff's application due to several formulaic errors contained therein. First, the plaintiff had failed to identify a legal or legislative basis to establish a legal relationship between the parties. Secondly, the plaintiff's provisional prayer for relief (petitum provisi), prayer for relief (petitum), and outline of claim (posita) differed insofar as the outline of claim defined the defendant's conduct as a default, while the provisional prayer for relief sought the suspension of the auction of the property, and the prayer for relief declared the property lawful and of value. More importantly, the court found that the plaintiff had failed to include in its claim the Office of State Assets and Auction Services (Kantor Pelayanan Kekayaan Negara dan Lelang) as a co-defendant.