SHARIAsource

In its judgment dated December 15, 2023, a majority of the Supreme Court of Pakistan upheld various provisions of the Supreme Court Act of 2023 as constitutional. The majority rejected arguments that the Act sought to interfere with the Court's independence and exclusive jurisdiction over its own affairs and internal organization. Certain provisions of the Act constrain the power of the Chief Justice and provide certain guarantees that some cases need to be heard by a committee of justices as opposed to a single justice or only a few of them. Most importantly, the Court, in upholding the Act, rejected the Chief Justice's power as the so-called "Master of the Roster." Previously, under that power, the Chief Justice had the ability to constitute benches, that is, appoint individual justices of his choosing, who then heard specific cases. Rejecting that power, the Court ruled that the "Master of the Roster" power was alien to the Constitution of Pakistan. Further, the Court noted that the word "master" was offensive and un-Islamic, writing that "Islam establishes the principle of equality . . . ."

University of Washington, School of Law

In 1986, the Aga Khan IV promulgated a global Ismaili Constitution, which brought the social governance of the Ismaili community under one umbrella. It was envisioned as a document which could harness the best in individual creativity while creating an ethos of group responsibility. The global Constitution, amended in 1998, covers a range of topics including authority over the community, family and personal law, dispute resolution mechanisms, and the formation of institutions relevant to the community. 

The Malaysian Supreme Court case of Che Omar bin Che Soh v. Public Prosecutor arose as an appeal of the mandatory death sentences issued to three men sentenced for either drug or firearms crimes under the Dangerous Drugs Act 1952 or the Firearms (Increased Penalties) Act 1971, respectively. In their appeal, the men argued that their mandatory death sentences were unislamic and therefore unconstitutional under Article 3 of the Malaysian constitution which established Islam as the official religion of Malaysia. Following an analysis of the constitution’s text and the historical context in which the constitution was written, the Supreme Court found that its framers could not have intended Article 3 to mean that all laws contrary to Islam would be void. Thus, the Court rejected the appellants' argument.

University of Toronto

University of Utah, College of Law

The evolution of legal traditions in the Middle East will be examined, analyzed and discussed through the lens of multi-disciplinary readings reflecting the law, history, culture, human rights, and contemporary political dilemmas.

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.

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 Narasu Appa Mali in 1952, the Bombay High Court limited its own ability to address the constitutionality of Muslim personal law in India, holding that personal laws are not “laws in force” within the purview of Article 13 of the Constitution, and thus need not satisfy the fundamental rights test.

This document notes that Constitutional Court Decision No. 49/PUU-VIII/2010, 22 September 2010, declared art 22(1)(d) of Law No. 16 of 2004 on the Attorney-General of the Republic of Indonesia to be constitutionally valid, provided it is read down as meaning that the term of the Attorney-General (Jaksa Agung) concludes at the conclusion of the term of the President of the Republic of Indonesia, together with the term of cabinet members; or it is brought to an end during the term of the President in a relevant period of time.

This suit filed before the High Court of Borno State, Nigeria, centered on the question of whether the Borno State legislature can constitutionally extend the jurisdiction of the Sharīʿa Court of Appeal beyond questions of Islamic personal law to other civil and criminal matters. The Court answered in the negative. Because the jurisdiction of the High Court and the Sharia Courts of Appeal is regulated by the Constitution, the Court determined that varying its jurisdiction would require an amendment of the Constitution rather than mere legislation.

The Court affirmed a decision by the U.S. District Court for the Western District of Wisconsin, granting summary judgment in favor of the plaintiff, Jerry Charles, who alleged a violation of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to practice his religion. Specifically, the plaintiff requested accommodations that would allow him to have prayer oil, which he contended was a necessary part of his religious practice. The Department of Corrections challenged RLUIPA as unconstitutional, but the Court upheld the constitutionality of the statute.

According to the Penal Code of 1960, criminal laws purportedly based on sharīʿa ceased to exist in Northern Nigeria. In 2000, twelve states of Northern Nigeria sought to reintroduce Islamic criminal law, which had been partially in place prior to the 1960 law reforms. In pursuit of its vision to restore Islamic criminal law, the government of Bauchi state in Northern Nigeria set up a “Sharia Implementation Committee.” The Committee was charged with examining the legality and constitutionality of the proposed laws, inquiring into public opinion, and educating members of the public. To carry out this task, the Committee consulted Muslim jurists, state-trained lawyers, legal academics, and members of the public. This volume of Philip Ostien’s Sharīʿa Implementation Sourcebook contains the report of the Committee.

Plaintiff Charles Glenn, an inmate at the New Hampshire Department of Corrections (DOC) filed suit against the Respondents, various DOC prison officials, for alleged violations of his rights to free exercise [of his ability to exercise Islamic ritual law] under the First Amendment and RLUIPA. Specifically, the Plaintiff – a practicing Muslim – argued that there had been no Friday prayer (jumuʿa) services at the New Hampshire State Prison for the past three years and that he had no access to an Imam (a Muslim prayer leader), a Qur’an, or other Islamic literature, which placed constraints on his ability to practice Islam [specifically, it's ritual law aspects]. In conducting a Preliminary Review, the Court applied the four-part test for examining the constitutionality of a regulation that restricts an inmate’s First Amendment free exercise of religion found in Turner v. Safley, 482 U.S. 78, 89-90 (1987). The Court assessed the four Turner factors -- (1) whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it; (2) whether alternative means to exercise the right exist; (3) what impact accommodating the right will have on prison resources; and (4) whether there was an absence of alternatives to the prison regulation. The Court found that the prison’s policy of denying Friday Prayer (jumuʿa) services, which are a central and essential element of religious practice, impinged on the Plaintiff’s First Amendment right to exercise his religion.

Sharīʿa implementation was effected by the elected governors and Houses of Assembly of the twelve states that undertook it. In most states this was done after wide consultations. The governors appointed committees – usually called “Sharia Implementation Committees” – whose terms of reference were to study what steps should be taken, to consider the constitutionality of the measures proposed, to survey and enlighten public opinion, and to report back to the governor. “White Paper Committees” were then appointed, charged with drafting official statements of the government’s position and program, based on the Sharia Implementation Committee reports. In some states the governors then appointed third committees charged with carrying out the programs laid down in the White Papers; and these third committees, after months of work, sometimes also produced reports on what they had done. These documents – the pre-implementation reports of the initial Sharia Implementation Committees, the White Papers, and the post-implementation reports of the committees charged with implementing the White Papers – are goldmines of information about life in the sharīʿa states in the first years of the 21^st century, about the many problems affecting the people, and about what Muslims hoped to do to improve things. A number of them are reproduced in Vol. II itself, and more are reproduced in the Supplementary Materials also made available here. 

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

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Cambodia (Preahreacheanachakr Kampuchea), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Cambodia'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 Republic of the Union of Myanmar/Burma (Pyidaungzu Thammada Myanma Naingngandaw), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Myanmar'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 Islamic Republic of Mauritania (Al Jumhuriyah al Islamiyah al Muritaniyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Mauritania's Constitution, Islamic law (sharīʿa or fiqh) has legal status and is the primary source of legislation. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Arab Republic of Egypt (Jumhuriyat Misr al Arabiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Egypt's Constitution, Islamic law (sharīʿa or fiqh) is the principal source of legislation.