SHARIAsource

Holding: In a judicial proceeding to determine whether a defendant should be denied entry to the United States, the court is not bound by the decision of a U.S. customs officer or collector. Rather, it must investigate and weigh the evidence offered by both parties, including any visas or certificates from defendant refuting evidence from the government.

Procedural posture: United States commissioner ordered defendant, a Chinese immigrant with a student visa, deported from the U.S., based on a decision of the deputy collector at the port where defendant had tried to enter the country. Defendant appealed. Islamic law is not directly relevant, except that the Court notes that some of the alleged evidence on which the deputy collector based his decision was so intangible that “the collector could have justified his course as well by asserting . . . that it was supported by the revelations of the Koran.”

Judgment: Reversed and remanded in an opinion authored by Judge Coxe.

Facts: The defendant applied for admission to the United States at the port of Malone, NY, on Oct. 13, 1884, with a valid certificate permitting him to enter as a student. The deputy collector at Malone initially found the defendant’s papers to be valid. However, two days later, he met a Mr. Clemenshire in New York, who said that the people at the address at which the defendant said he would be staying in the U.S. knew nothing about the defendant and that the defendant was actually going to work “in laundry” in Connecticut. The deputy collector then telegraphed the port to have the defendant returned to Montreal. At the defendant’s deportation hearing, the commissioner ordered the defendant deported after finding the deputy collector’s decision final and controlling.

The U.S. District Court for the Northern District of New York found that the defendant had not received a fair hearing. It found that the collector’s action “was based upon an irrelevant rumor,” because Mr. Clemenshire’s information was “conjecture.” Having previously believed the defendant’s papers to be valid, the collector’s subsequent decision was not based on valid statutory grounds. Furthermore, the commissioner was not barred from investigating and deciding the case on the merits; he had a duty to determine the status of the defendant by investigating the entry certificate and any contrary proof a customs officer might introduce. Therefore, the decision was reversed and remanded for the commissioner to reconsider based on the evidence offered by each party.

The Asia Bibi case is one of the recent manifestations of the blasphemy laws in Pakistan. The Applicant, Asia Bibi, a Christian woman, was sentenced to death by the trial court after allegedly uttering blasphemous statements against the Prophet Mohammad to fellow Muslim field workers. Despite serious questions regarding the quality of her defense and the truthfulness of the allegations against her, the appeal to the Lahore High Court was dismissed.

In divorce proceedings, a wife appealed the decision of the Oakland Circuit Court Family Division, granting her husband’s motion to dismiss her claims and recognize their previous divorce, which occurred when the couple was in India. Specifically, she contested the validity of the “triple ṭalāq” divorce (a version of final, irrevocable divorce under Indian and Islamic law, performed unilaterally by the husband) that her husband performed in India, and filed for divorce in Michigan. The trial court concluded that the certificate of divorce that the defendant husband produced from their earlier divorce was sufficient evidence to dismiss the case under Michigan Compiled Laws 2.116(C)(7) (which bars claims based on prior judgment). The Court of Appeals reversed and found in favor of the plaintiff, concluding that the Indian divorce violated due process requirements of the Fourteenth Amendment and the Michigan Constitution art. 1, § 2, as it gave the wife no chance to plead her case concerning the divorce before a court. The Court also concluded that allowing the divorce to stand would be contrary to state public policy, as it privileged the Muslim personal law of India (which placed women in a weaker position regarding property division in the event of a divorce than would Michigan state law) over Michigan state law and the rights and protections extended to persons living in the state.

This case was brought on appeal from the U.S. District Court for the Western District of Virginia, which granted summary judgment in favor of the defendants, prison officials (Warden Jack Lee, Assistant Warden Gene Shinault, and Correctional Officer K. Lester). Petitioner Leroy Lovelace was removed from a “pass list” (which gives inmates access to Ramadan prayer services and special meals) after prison officials claimed that he broke his fast by eating during the day. Lovelace argued that his removal was due to his complaints about expired food, and was thus in violation of his First Amendment right to free exercise of religion, the Fourteenth Amendment right to due process, and the requirements of Section 3 of the Religious Land Use and Institutionalized Persons Act (RLUIPA) (protecting prisoners from having their religious practices substantially burdened, without a compelling government interest). Section 3 of RLIUPA states that “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.A. §2000cc-1(a). The Court vacated the grant of summary judgment in favor of Officer Lester, the prison official who reported the alleged fast breaking, as well as against Warden Lee, who was in charge of overseeing the prison, concluding that both officials played direct roles in the incident. The Court remanded the case to the district court to determine whether the plaintiff had made out a valid due process claim, and the Court affirmed the remainder of the district court’s grant of summary judgment in favor of the defendants.

The elucidation to Law Replacement Government Regulation No. 3 of 2005 simply provides a longer explanation for the changes to the statute, those being the need to contemplate an election being postponed due to a force majeure, as well as the need to expedite the election process.

This statute regulates the lawmaking process in Indonesia. It was subsequently superceded by Law No. 12 of 2011 due to inadequacies and societal change. Article 7, which deals with the hierarchy of laws, differs slightly in that art 7 of Law No. 12 of 2011 includes determinations of the People's Consultative Council (Majelis Permusyawaratan Rakyat) second in the hierarchy, whereas this statute does not include them at all.

The expansion of the authority of the Court of Religion in Aceh and the subsequent change of its name to Mahkamah Syar’iyah has created an overlap of jurisdiction in the processing of civil and criminal cases. This was due to the granting of the special province status for Aceh in 1999 which entails the right for Aceh to implement Islamic law in the region. Mahkamah Syar’iyah was then granted the authority to process both civil and criminal cases for Aceh’s Muslim citizens, a jurisdiction previously shared between the Indonesian General Courts (Peradilan Umum) and the Courts of Religion (Pengadilan Agama). 

The decision of the Chief Justice of the Indonesian Supreme Court signifies the relegation of authority previously held by the Indonesian General Court to Mahkamah Syar’iyah in Aceh.

The relegated authorities are as follow:

1. Muamalah (civil law) cases of Muslim citizens of Aceh regulated in Aceh Qanun
2. Jinayah (Islamic criminal law) cases regulated in Aceh Qanun

A petition sent to the Ottoman Sultan from Egypt in 1155 AH (1742-3), concerning a dispute between a Muslim and a Christian in the town of Zifta. The Muslim petitioner attempts to enforce the regulation of the Pact of 'Umar that forbids non-Muslims from having houses taller than those of Muslims. Baldwin's commentary on the petition focuses on how the petitioning process relates to the sharīʿa court system in the Ottoman Empire.

During trial court proceedings in which a Muslim couple was dividing their marital property, the husband, Mr. Irfan Aleem, attempted to perform a “triple ṭalāq” divorce—a form of final, irrevocable dissolution of marriage under Pakistani law, initiated unilaterally by the husband. The Court refused to honor this type of divorce, concluding that it violated due process rights guaranteed by the Fourteenth Amendment by not giving Mrs. Farah Aleem any role or voice in the divorce proceedings. The Court also concluded that allowing the ṭalāq divorce to replace court proceedings was contrary to the public policy interest of the people of Maryland, as it would allow Pakistani version of Islamic law, which grants all property to the husband as the default in divorce cases, to regulate distribution of property in the state of Maryland. The Court thus upheld the ruling of the Circuit Court of Montgomery County, granting the wife’s petition for divorce, and applied the Maryland default rule that, in the absence of prior written agreement, marital property is to be divided fairly and equitably.

In this excerpt, Ibn al-Jawzī (d. 597/1201) relays cases in which a presiding judge revealed the falsity of the petitioner’s or defendant’s claim by employing shrewd investigative techniques to detect their guilt. For example, in one case the petitioner accused the defendant of failing to return money he had entrusted to him. The judge bade the petitioner to go to the mosque in Karkh where he claimed the money had been transferred and fetch a page of the Qurʾānic muṣḥaf kept there, so the defendant might swear his innocence on it. Once the petitioner was on his way, the judge asked the defendant whether he thought the petitioner had already reached the mosque. Although the defendant had claimed that he was not familiar with the site in question, he answered, “Not yet.” Having caught the defendant in a lie, the judge decided the defendant was deceitful and must return the money to the petitioner. In a second case, the judge of Hamadān discerned the dishonesty of a man who was called to give testimony by noting a difference in his stride. The man usually walked with a measured stride, taking a certain number of steps through the courtyard when he was called as a witness, but this time the judge noticed that the crossing took him several additional steps, “indicating that he walked slower to feign dignity.” The judge thus drew on his individual knowledge of the witness’s behavior to reject the latter’s credibility on the basis of subtle evidence. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites these cases to illustrate how the judge might employ various forms of evidence, including his own knowledge, in order to resolve a case and achieve justice. However, he notes that both instances occurred before the stage of the case at which procedural due process begins, and thus they do not prove that the judge can employ personal knowledge later.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

On December 26, 2008, Mariam Ayad ("Wife") and Ayad Hashim Latif ("Husband") got married.  They executed a prenuptial agreement ("Islamic Prenuptial Agreement") on the same day, which the wife alleges she considered to be a customary marriage certificate, not a contract conferring substantive rights and limitations on the Husband and the Wife, respectively.  The couple have a son.  Their marriage started deteriorating in 2020, at which point the Wife alleges she learned for the first time about the existence of the Islamic Prenuptial Agreement and the fact that she had executed it on the day of her marriage with her Husband.  On January 25, 2021, the Wife filed for divorce.  The Husband countersued for divorce and filed a motion to have the Islamic Prenuptial Agreement enforced, which provides that all divorce-related matters, including spousal support, child support, alimony, and marital property division, shall be resolved through the ruling of a fiqh panel to be convened.  The trial court, in rejecting the Wife's arguments regarding the invalidity and unenforceability of the Islamic Prenuptial Agreement, which the Wife had argued based on her assertion that she had thought she was signing a cultural document at the time of signing and that she was not given an opportunity to read and understand the terms, ruled in favor of the Husband and held that the prenuptial arrangement be enforced. 

The Wife appealed to the appellate court seeking relief from the order of referral to arbitration of the trial court.  In her submission to the appellate court, the Wife made four separate arguments:

1. The Islamic Prenuptial Agreement is void on grounds of contravening public policy, as the agreement clearly disavows Texas law and the laws of the United States, and replaces those with Islamic Law, which, according to the Wife's submission, "limits the rights of a woman to obtain a divorce," in violation of Equal Protection, the Establishment Clause, and Due Process, given the different weights assigned by Islamic law to official testimony from women compared to men.

2. The Islamic Prenuptial Agreement is void as a matter of Texas contract law because the agreement was involuntarily executed.

3. The trial court abused its discretion in finding that the Islamic Prenuptial Agreement stipulated to arbitration, as the agreement does not contain evidence of a meeting of the minds as regards an intent to arbitrate.  The agreement's mention of a "fiqh panel" or a "Muslim court" cannot unequivocally be read as an agreement to arbitrate.

4. Relatedly, the trial court also abused its discretion in referring the dispute to arbitration without allowing the Wife to present meaningful evidence refuting the existence of an alleged agreement to arbitrate.

The case is pending before the Texas appellate court.

A Toledan man named Ibn Ḥātim was accused of being a heretic by sixty witnesses on the initiative of a fellow Toledan called Ibn Labīd al-Murābiṭ. The judge consulted with the local jurists, and following their legal opinions, he sentenced the accused to death. However, he granted the accused the right to challenge the witnesses (iʿdhār). Ibn Ḥātim escaped from Toledo and found refuge in the neighboring kingdom of Badajoz. Ibn Labīd went after him, carrying a copy of the judge’s sentence (tasjīl) along with the legal opinions of a number of non-Toledan jurists. In Badajoz, the ruler withdrew his support from Ibn Ḥātim, who fled again, this time to Cordoba. While in Cordoba, the “moral” police arrested Ibn Ḥātim, and the judge imprisoned him, giving him two months to prove his innocence. Unable to do so, Ibn Ḥātim was crucified alive. A number of legal issues arise in the course of this case: should the process of iʽdhār—the right to challenge witnesses—be granted to those accused of heresy (zandaqa)? Should refuge be granted to them? What happens with the estate or inheritance of an executed zindīq? Can a judge reverse a sentence given by another judge? The source is a collection of court cases by Andalusi scholar Ibn Sahl (d. 486/1093), and it is based on information directly available to the compiler, who was also a witness of most of the events described.

This document is the first draft of Criminal Procedure Bill prepared and adopted by the parliament and sent to the Guardian Council for review.

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. 

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.