APPLICATION OF SHARI'AH IN VARIOUS COUNTRIES OF THE MUSLIM WORLD

APPLICATION OF SHARI'AH IN VARIOUS COUNTRIES OF APPLICATION OF SHARI'AH IN VARIOUS COUNTRIES OF THE MUSLIM WORLD [A BRIEF SURVEY ] By DR. TANZIL-UR-RAHMAN Judge of High Court of Sind and Chairman Council of Islamic Ideology, Government of Pakistan [A paper submitted to the International Seminar on "Islamic Law and its Application in the Modern Times" held fender the auspices of Centre for Islamic Legal Studies, Ahmadu Bello University, Zaria, Nigeria, April 10----13, 1979] For over 100 years after the death of the Holy Prophet, judgments were passed in strict conformity with the teachings of the Holy Qur'an and Sunnah. In cases, where there were no clear directives to be found in the Qur'an and Sunnah, guidance was sought from the verdicts of the Fuur Caliphs and from the traditions of the Companions of the Holy Prophet, and where this was not possible, Ijtihad was resorted to. But in the absence of a complied and consolidated code of law, differences and dissensions were often ezacouzatered in individual opinions and fat-was. The first step, taken to rectify this situation, was a communication, addressed to Caliph Abu Jafar Mansur by Ibn Muqaffa (died 140 A. H.) who was greatly respected during the reign of the Abbasides for his vast knowledge. In his letter, he stressed the importance of compiling laws to be enforced throughout the country. But, due to certain reasons, the suggestion of Ibn Mugaffa' could not be acted upon. It was, however, in the second quarter of the Ind Century (A. H.) that the foundation of the gigantic task of compiling the filth was laid by Imam Abu Hanifah and his followers. The science of fiqh thereby received a powerful impetus. By that time, books of firth had begun to appear. But the immediate consequence of it vas that the Qadis, instead of taking guidance directly from the Qur'an and Sunnah, started to avail of the books on fiqh. Besides commentaries, and explanatory notes thereof; f`votnotes and critical essays assumed such an unendizzg range tizat it became very curabersorne for a Qadi to arrive at a correct descion in particnlar case. It was all the more difficult to find out a specific rule in view of different attitudes takeb anti opinions formed by Imam and other jurists on matters in question. And to know what there was preferable, and on what point there was consensus of opinion, leas something beyond tl:e grasping power of an average Qadi. FATAWA ALAMGIRI In 1100 A.H. Aurangzeb Alamgir, after he had been on the Barone for about 4 years, decreed through a Royal Praclamation that Hanafi fiqh be edited and compiled. Consequently, after a selection of scholars and learned mon from the length and breath of the country a Commission was constituted under the chairmanship of Shaikh Nizam al-Din Burhanpuri. This Commission made extensive research for full eight years and succeeded in compiling four -comprehensive volumes dealing with the dictates of Hanafi figh. They covered the subjects of Worship and Religious Observances, Matrimonial .Affairs, Mutual Dealings and Punishments in the light of the teachings of the Hanafi school. Tho compilation is known as "Fatawa Alamgiri" and its translation in Urdu, as Fatawa-i-Hindiyah. This step taken by Aurangzeb Alamgir constitutes the first orderly effort in the direction of compiling and editing of the Islamic figh, which succeeded the. Fatawa Tatarkhani, compiled first in point of time. TURKEY The second regular effort was made in 1869, A. D., when following an Ordinance from the Turkish Sultan Abdul Aziz a Commission was formed to frame civil laws. This Commission in eight years time framed the said laws and named the book "Majallatul-Ahkam-al-Adliyah" embodying the Islamic Civil laws. This book is commonly known as "Majallah". In the beginning of this book there is an introduction which deals with the principles of figh and its various .kinds and the legal maxims. The number of these maxims is one hundred. The introduction is followed by 16 Chapters, on the different subjects, namely, Sale, .Hire, Security, Bailment, Mortgage, Trust, Gift, Usurpation, Pre-emption, Partnership, Agency, Composition and Indemnity, Acknowledgement, Claim, Evidence and Oaths and Administration of Justice. These laws consisting of 1851 sections, were codified on modern lines, and were given the force of law in the country. It is unfortunate, however, thaf after the revolution brought about by Kemal Ataturk the .Turkish Government decided.to adopt Swiss Laws. These Laws replaced the `Majallah.' The MajaUah in its modified farm, is however, in practice : in Iraq, Syria & Jordan as a .code of law. MARRIAGE LAWS Besides Civil laws, the Turkish Government, in 1917, promulgated ,yet anothor law to govern marriages and divorces. This law is known as "Haquq al-A`ilah". Although major part of this law was in line with the teachyrigs of the Hanafi sect, yet in matters of marriage by force, divorce under coeraon and divorce in a state of intoxication etc., the dogtrines of the Maliki sect were followed. EGYPT As regards new movement of State Legislation of Islamic law, Egypt is considered a pioneer on a wide scale. In Egypt, the task of giving proper shape to the Personal Law first began in 1915. To frame it; a commission was constituted wherein scholars of all the four sects were represented. After a few years' effort, the Commission brought out a .Draft relating to family ' laws of Islam. But when this was published there were objections' hurled on it from all sides. Hence the Egyptian Government abandoned the idea cil enforcing it as law, In 1920, the Egyptian Government once again appointed another Commission consisting of Shaikh al-Azhar, Head of the Department of Religious Affairs and Mufti of Egypt. This Commission, the same year, presented its recommendation to the Government in the form of law Reforms relating to matrimonial laws. These recommendations were soon given effect as law. Before this law was enacted, in matters relating to Personal Law, the preferred opinions of Imam Abu Hanifah were acted upon under section 280 of the Regulation of 1910, i. e. the Regulation of the Organisation of Religious Courts. However, some changes were introduced in this section under the Act of 1920, so that in matters of maintenance, and the power of women for getting divorce in cases where the husband's whereabouts were not known, the opinions of Imam Malik and Imam Shafi`i were restored to. Major changes that took place under this law were:-‑ (1) According to Hanfi figh, a wife could not demand any past maintenance from her husband, except when there was a decree granted by a Court or where an agreement between the parties existed. But under this law, in the light of Shafi`i Fiqh, wife's maintenance was declared a debt on the husband to be paid by him for the entire period he had been neglecting or refusing to pay. (2} And, in case the husband was unable to provide maintenance to his wife the right was given to her to ask for separation. Besides, in the light of Maliki figh, wife was given a right to seek divorce from her husband in case he was suffering from an incurable disease, or a disease for which a cure was a remote possibility. (3) Likewise, the wife was entitled to seek a divorce if the whereabouts of her husband had not been known for 4 years. Thereafter in 1929, the Egyptian Government promulgated yet another Ordinance under which divorce under intoxication, divorce by force and implied divorce were declared void and inoperative. Exceptions were, however, made when an intention to actually divorce was present on the part of the husband. Also, all divorces, except divorce before intercourse, divorce against compensation, and three divorces (which were completed in throe menstrual periods) were declared reversible. A wife was further entitled to seek dissolution of marriage in cases where her husband had bcen without any news for one year or when he had been in prison for three years. Several other laws were also enacted regarding paternity of children, maintenance, dower custody of children etc. In 1943, the law of inheritance and in 1946 the laws of wills and wagf were enacted. In them same provisions were found differing from the teaching of the Hanafi sect. And today the position is that all matrimonial laws as in force in Egypt are in a codified form. Certain commentaries on these laws have also been written. Besides, two other Commissions were set up in 1936 and 1938 again to codify civil laws. The last Commission was under the chairmanship of Dr. Abdul Razzaq Sanhuri. This Commission made recommendations to the Government after completing its task in 2 years. Now alt that is current in Egypt, in the field of Civil law as well, is in accordance with laws codified by the Commissions set up from time to time. SUDAN Sudan to a great extent, adopted the several legislative eaactmentc Made in its neighbour country, Egypt, by number of Circulars of the Grand Qadi (Chief Justice) of Sudan under an authority so vested in him. This process was unlike Egypt and other Arab countries. These laws were enforced by the traditional Islamic High Court of Sudan. The first Circular was issued in 1916, by the Grand Qadi which were followed by a number of Circulars till 1935 on different matters relating to family law, in supersession of those of the then prevalent rules of Hanafi figh. A number of other Circulars relating to the law of succession and wills, almost identical with the laws in Egypt were also issued by the Grand Qadl in 1943, and 1946 and enforced by the Islamic Courts. JORDAN The Hasbmi Kingdom of Jordan was founded in 1947. Article 2 of its Constitution of 1951, proclaims Islam to be its religion. The same year the Jordanian legislature codified the Family Law and promulgated it as a new law called "Qanun-ul-Huqug-al-A`ila" (the law of Family Rights}, thereby the uncodsfied law enforced till then Lost its governing authority. SYRIA In Syria Majjalatul Ahkam al-Adliyah has been in force under the name of "Qanun al-Madani" since March 18, 1939, However, prior to this in 1918, due to special circumstances laws were culled from all the four creeds and fcr purposes of reformaiion, were promulgated as laws of the land. According to these laws, a marriage could be dissolved where it could be proved that a husband was unable to maintain his wife or suffered from 'an incurable disease, or when the husband's whereabouts land not been known for four years under normal circumstances and for one year, in case of war. Thereafter, on October 23, 1943, the Syrian Ministry of Justice entrusted Professor Tantanawi with the task of codifying the Personal law, which he presented to the Government in 1948. This was given to a Commission consisting of five members, including Professor Tantanawi himself This Commission did a second reading of the work done already. On December 26, 1951, another Commission Dame into being. The assignment given to this Commission was to write down explanatory notes to it. Having completed its task, the Commission presented it to the Ministry of Justice in the form of a bill, which published it with a view to making it law of the land. In some respects, however, law-making was alleged to have been not in consonance with the traditional law, At last, after revising certain sections, the Perscral Law was enforced on Septeauber 17, 1952, giving it the name of `Qanun ul-Ahwal Al-Slaaklrstyah of Syria. Under this law, the age for marriage was fixed as 17 years for girls and I8 years for boys. But in a case where a girl is 13 years old and a boy of 15, and they want to get married, the Qadi can give them the necessary permission provided their parents have no objection. Another condition is that both should be physically fit. The permission of the Qadi for this sort of union is necessary and it is also necessary to produce a medical certificate, verifying the age and state of health, of boih the partners. Similarly for entering into a second marriage while the first wife is still alive the permission of the Qadi is necessary. But this permission depends on the financial position of the husband. In matters of divorce, the Laws of lgypt were; followed. Accordingly three divorces or more than three divorces given at the saaue tisane, were considered as osaly one divorce. Similarly, besides divorce against payment of compenaatan, other divorces were included in the sphere of reversible divorce. Right was given to the wife to seek separation from her husband on the ground of his inability to maintain her. This was in accordance with the doctrines of Imam Shafi`i and Ibn Hanbal. As regards paternity of children, departing from the stand taken by Abn Hanifah that the duration of pregnancy could prolong up to two years, the period was fixed as one year. In respect of making of wills also, certain changes were introduced. For instance, in view of Maliki school, the will in favour of an unborn a considered as valid. Again, according to the same school if the the name of a person who had killed the person making the . Some changes were atso introduced even in the law of inheritance. According to the Maliki school, a murderer would inherit nothing from the heritage to the murdered person. Likewise following Zaid b. Thabit and Abdullah Ibn Masud, a brother alongwith the grandfather was declared as sharer in the property of the deceased. And inheritance due to pregnancy was considered tenable only where the pregnancy was one year old. MOROCCO The codification of Family law was in demand in Moroeco, keeping pace with the changing legal trends in the Muslim-World. Thus in 1957, a Commission was set up under a Royal IJecree for drafting a Code of Personal Status and Succession. On the basis of a comprehensive draft prepared by the Cumrnission six books of laws were together constituted as "the Code of Personal Status", 1958 (Mudawanatul-Ahwal al-Shakhsiyah) dealing with the laws of marriage, its dissolution, capacity, representation, bequests and inheritance. TUNISIA In Tunisia, the cadificatian of Personal Law was first started in August, 1956. Under the Tunisian Matrimonial Law, the ages of the boys and girls for marriage were fixed as 18 and 15 years respectively. At the same time, however, the Court had been given the right to permit marriage even before these ages were reached, provided the two parties, or airy one of them, as the case may be, had furnished proof of their puberty. More than one marriage was absolutely prohibited. Second marriage during the lifetimes of the first wife was declared an offence, punishable with imprisanmerr: extending to 1 year, or fine up to Fr. 2,500.00 (Equivalent to Pakistani Rs. 7,500, approxi mately) or bath, Under Tunisian- Law it was held imperative on the part of a husband to file a suit in a Court of law to exercise his right of divorce. The position now is that no divorce is legal unless Court has given a decree to that effect. A wife is entitled to divorce if, in war, the whereabouts of her husband have remained unknown fora period of 2 years. But in normat circumstances, the determination of period has been left to the discretion of the Judge. In Tunisian Matrimonial Law, there seems to be a compromise between the Maliki figh and the Hanafi figh. ALGERIA In 1959, some rules relating to Family Laws were enacted and given the force of law by Algerian Marriage Ordinances which were substantially similar to the codified law of Morocco. LEBANON In Lebanon also the `Majallatul-Ahkam-al-Adliyah' of the Ottoman Empire had remained in force. But under the influence of the French rule, other laws gradually replaced the `Majallah' and finally on October I1, 1934, a new Civil Law, came rnto force. The draft of this Law was prepared by Professor Louis. By virtue of this law, all such provisions of the Majallah or of the law of Shariat as were against or were not in line with the new law, were abrogated. The result was that, except for a few sections of the `Majallah' all other provisions were repealed. But under protests from the Muslims, the Lebanon Government, through an Ordinaacr, constituted a number of Sunni and Shia Courts- on November 4, 1942. To these Courts was granted the right to hear cases relating to marriage, divorce and dower etc. In addition, the right of appeal against the decisions of these Courts was taken away from High Courts of Appeal which were newly constituted. The religious law of Lebanon is based on the figh advocated by Hanafi and Jafary schools of law. IRAQ In 1959 the Ministry of Justice, Iraq approved a Law called Qanun Al-Ahwal-al-Shakhsiyah. But it did not contain all the provisions of law relating to Personal Law. A major portion of these laws is based on Shia doctrine and the law that has been prescribed for the Sunnis is what can be said to be an abridged form of the law prepared by Qadri Pasha. This part is based on the figh of Imam Abu Hanifah. IRAN After the Constitutional Revolution, Muzaflar-al-Din Shah Qachat announced the formation of a Constitutional Government in Iran in 1906. The Iranian cabinet approved its own Constitution. The National Parliament, after Raza Shah Pahlvi came into power, took to law-making, keeping in view the various trends of the time. Various laws, Civil, Criminal. Industrial and Commercial were duly framed, but mostly based on French law. In 1931, _Iranian Parliament enacted Qanun Izdiwaj (Marriage-law). A few additions were made to this law by two other enactments enfareed in 1937 and 1938. But in 1967 the Iranian Parliament enacted a new law called "Qanun Himayat Khanwada" (Family Protection law), which principally regulates and controls divorce and polygamy. SINGAPORE Although Singapore is not a Muslim State, there also, steps were taken in this direction. On August 30, .1957, a Muslim Ordinance was promulgated, under which Religious Courts were set up. The' right to register divorces was given to these Courts. Under .Muslim Marriages and Divorces Rules of 1959, it was made clear that, after an agreement was reached, the two parties concerned would file an affidavit and affix their signatures in the Divorce Register. In a case where there was a dispute in giving a divorce, i. e. in case wife was demanding a separation, to the Religious Courts to pass sedate Board wase set up to heard appeals permitted to appear and an App against the judgment of these .Courts. The members of this Board were necessarily Muslims, INDONESIA Although the substantive law relating to Muslim Family relations was not subjected to State-legislation in Indonesia, yet a number of Regula tions were issued during 1946-55 by the Ministry of Religious affairs to regulate certain family matters e. g. Marriage, divorce and revocation of divorce. CEYLON As early as 1906, a Codo of Islamic law was cvmpilal and made applicable to the Muslims in Ceylon under the title' "Muhammadah Code". The Code remained in force in its cntirety Muslim Marriage and Divorce provisions were repealed and replaced by Registration Ordinance", which remained in force till 1955, when the Muslim Marriage and Divorce Act took its place. This .Act continues in force, as amended in 1954, till today. INDO-PAK SUB-CONTINENT After taking over the rule in India, when the Britishers revived the judicial system in the country they announced through an Ordinance that the Indians would be free to practise their own beliefs .relating to marriage, inheritance, wills,. etc. Nevertheless, in harmony with the changing times, restrictions were imposed on the marriages. of minors through Children's Marriages Restraint Act, 1929. Besides, the Dissolution of Muslim Marriage Act was passed in 1939. Under this Act, a number of grounds were formulated conceding the right of a Muslim woman to seek separation due to any reason recognized by Islamic Law. This Act was declared as binding on all Muslims, irrespective of the fact that they -were subject to different beliefs and creeds. The most important aspect of this Act was the right of a woman, in accordance with the Malikt jrgh, to seek divflrce in case the whereabouts of her husband were not known for years." PAKISTAN After the inception of Pakistan, the Government of this country set up a Commission in August 1955, comprising of 7 members, for study aad report on Family Laws. under the Chairmanship of Dr. Khalifs Shuja-ud-Din. Due to his sudden death, the then Chief Justice of Pakistan Mr. Abdul Rashid was nominated as its Chairmaa on October 27, 1955. This Commission was successful in presenting its Report to the Government in June, 1956, which was then published in the Gazette of June 30, 1956. In view of very strong criticism on the part of `Ulama', the Report could not be given a kgal shape for quite a long time. Meanwhile on. October 8, 1958, when a bloodless revolution came in, the Constitutional Government was brought to an end and Martial Law was imposed in the country. On July 15, 1961, at he ...persistent demand:by all Pakistan Wnmen's Association, President Muhammad Ayub Khan- promulgated .the Family Laws Ordinance in the light of the recommendations made by the Commission. Under the Ordinancx, to register a marriage was held obligatory. It was also incumbent on the part of the husband that, to enter into a second marriage, he must get permission of the proper authority appointed by the Government and to state if first wife's consent has been obtained. In the law of inheritance, the right of a grandson and granddaughter, whose father er mother had died during the lifetime of his or her grandfather or grandmother, to get a share from his grandfather's or grandmother's Legacy was recognised, so that now they could have a share equal to that of their father or mother, as the rase may be. So far as dower was concerned, it was made clear that in cases where no details as to the mode of payment were mentioned in the Nika/r Nama, the whole of dower should be payable on demand. In 1962, the then Government of West Pakistan repealed the Customary Law of the Punjab in the matter of wills and inheritance which gave the women of that province the right to inherit immovable property, including the agricultural land, as provid,;d by the Sari'ah which for centuries was denied to them under the Customary Law. During 1973-77, several laws relating to prohibition of liquors, and the anti-prostitution and anti-smuggling were also promulgated, but the greatest step in the field of implementatian of Shari'ah, is the enforcement of Hadd punishments against the offences of theft {sarqah), robbey (harabah), adultery (zina) and false accusation of adultery {gadhaf), since 12th of Rabiul Awwal 1399 A. H. 10th of February, 1979. In addition thereto, the Superior Courts of Pakistan have been empowered to strike down any provision of law barring fiscal, Revenue, Procedural and Muslim Personal Law, if found repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah. For this purpose, special jurisdiction has been conferred on Shari'at Benches eonstitutzd by a Corstitutional Order of the President, on 12th of Rabiul Awwal 1399 A. H./ 10th February, 1979. Besides a Presidential Order relating to imposition and recovery of Zakat and `Ushr by the State has been promulgated which is to be enforced with effect from July and October, 1979, respectively. In the Zakat Order, a departure has been made from Hanafi law inasmuch as it also imposes Zakat on the properties of miners and lunatics, in accardance with the Maliki and Shafi`i law. The Islamic Council of Pakistan is also presently engaged in codifying certain penal laws of Islam relating to Qisas, Dtyat and Jinayat. CONCLUSION The above study of Islamic legislation, in its historic perspective, makes it clear that:--- (i) In all Muslim Countries except Saudi Arabia and to same extent Indonesia, there has been codification and state Legislation of Islamic law; (ii) The Courts have enforced the Islamic law, so codified and legislated; (iii) All the Countries, except Sudan, have appointed Commission, as a step towards state legislation of Islamic Laws; (iv) The Commissions, so appointed, did not strictly adhere to the dictates of only school of figh, but took advantage of the views of other schools where certain provisions of law, according to the Commission, was more suitable to the changed social conditions of the society. (v) Lastly, it is also evident from the above survey that matters falling within the domain of Muslim Personal law occupy dominant position almost in every Muslim country and the larger issues in the areas of socio-economic and constitutional supremacy of Shari'ah does not seem to attract these countries. With the result, that the fields of Constitutional Law, Commercial Law, Industrial and Labour law and International Law are almost untapped and no serious efforts for their codification and enforcement appear to have been made.