Malaysia's Top Court Restricts Scope of State Power To Enact Sharia Law

In a decision handed down yesterday, Malaysia's highest court-- the Federal Court-- imposed significant limits on the power of Malaysian states to enact Islamic legal prohibitions, including laws that ban homosexual relationships.  The court struck down Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995-- a law of the state of Selangor that makes "sexual intercourse against the order of nature with any man, woman or animal" a criminal offense under Shariah law. Sections 377 and 377A of the federal penal code cover the same conduct.  As reported by Malay Mail:

Under Item 1 of the Federal Constitution’s State List, state legislatures can make laws on Islamic law ... "except in regard to matters included in the Federal List"....

... [T]he judge noted that the preclusion clause states “except in regard to matters included in the Federal List” and not “except in regard to matters included in the Federal Law”.

The judge explained that this does not mean that state legislatures have power to make law on matters that Parliament has not already made law on, and that state legislatures are instead unable to make law on matters that fall within Parliament’s jurisdiction, even if there is no such federal law yet....

With no challenge by any of the parties in the case over Parliament’s powers to make the Penal Code provisions that cover the same matter as Section 28, the judge said the Federal Court must accept that Parliament had competently enacted the Penal Code provisions in line with the Federal Constitution.

Malay Mail reports on the reaction of the Shariah Lawyers Association of Malaysia to the decision.

European Court Awards Damages To Widow Whose Inheritance Was Reduced Under Sharia Law

As previously reported, in 2018 the European Court of Human Rights held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights.  Sharia law resulted in her receiving only 25% of what she was bequeathed to under under a will left by her husband.  The court, however, left open the question of damages. Now in Sali v. Greece,  (ECHR, June 18, 2020), the Court held that Greece should taking steps to ensure that the wife retains her ownership of the property in Greece left to her by her husband. However if the government does not do this within a year, the Court held that Greece should compensate her for the value of the property lost, which amounts to a little over 41,000 Euros. She was also awarded 10,000 Euros for the suffering caused by the discrimination against her. Courthouse News Service reports on the decision. Three dissenting judges thought that the court should also have dealt with property in Turkey left to the wife.

Supreme Court Denies Cert In Challenge To Bus Ad Restrictions

The U.S. Supreme Court today denied review in American Freedom Defense Initiative v. Washington Metropolitan Transit Authority, (Docket No. 18-1000, certiorari denied 6/3/2019) (Order List).  In the case, the D.C. Circuit Court of Appeals remanded  a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that decry supposed Sharia adherent Islamists who want to enforce Islamic blasphemy laws in the United States. (See prior posting.)

Brunei Places Moratorium On Death Penalty Under Sharia Code; Will Ratify Torture Convention

Earlier this year, the Sultan of Brunei announced further implementation of Sharia law in his southeast Asian country, including implementation of the provisions in Syariah Penal Code Order, 2013 (SPCO) on stoning for the offences of adultery and homosexual sex. (See prior posting.) Now, according to a Bloomberg News report on Sunday, the Sultan has announced a further moratorium on implementation of the death penalty. Borneo Bulletin has published portions of the Sultan's television address delivered over the weekend:

As evident for more than two decades, we have practised a de facto moratorium on the execution of death penalty for cases under the common law. This will also be applied to cases under the SPCO, which provides a wider scope for remission.

As we are all aware, Brunei Darussalam has begun to fully implement the SPCO on April 3, 2019. This is our religious obligation to Allah the Almighty as an Islamic country. The aim of implementing the law is to uphold the objectives of Syariah which are to protect religion, life, lineage, property and intellect....

In upholding our international commitments and obligations on human rights, Brunei Darussalam will be ratifying the United Nations Convention Against Torture (UNCAT). Both the common law and the Syariah law are aimed to ensure peace and harmony of the country. They are also crucial in protecting the morality and decency of the public as well as respecting the privacy of individuals.

British Parliament Debates Sharia Councils

On May 2, Britain's House of Commons debated the operation of Sharia Councils in the United Kingdom. (full text of debate). MP John Howell said in part:

Sharia councils provide a form of alternative dispute resolution.... Members of the Muslim community voluntarily consent to accept the religious jurisdiction of sharia councils. Marital issues and the granting of Islamic marriage divorces account for about 90% of their work. They also advise in matters ​of law, including issues of inheritance, probate and wills and Islamic commercial law contracts, and they provide mediation, counselling and religious ruling services.

Sharia councils are not considered part of the British legal system. They are not courts and their decisions are not legally binding. However, despite having no judicial authority, some councils see themselves as authoritative on religious issues, and the power of sharia councils lies in how they are perceived by their communities.

A significant number of Muslims do not have a marriage recognised under British law.... [S]ome Muslim women therefore have no option of obtaining a civil divorce. Some women may have no other option but to obtain a religious divorce, for which the judgment of a sharia council is normally required.

Law & Religion UK has a more extensive summary of the debate.

Brunei Further Implements Its Sharia Penal Law-- The Details

There has been extensive coverage in the press in recent days regarding the Sultan of Brunei's further implementation of Sharia law in his southeast Asian nation.  Press coverage has focused on implementation of the provisions on stoning for the offences of adultery and homosexual sex. (CNN, ABC). Here is a closer look at the legal steps the nation has taken.

In 2013, Brunei adopted Syariah Penal Code Order, 2013 (full text). The law was to be implemented in stages, beginning with crimes involving only jail terms. Last December, the Ministry of Religious Affairs published a Notice (full text) of the remaining provisions that will go into effect April 3.  These are provisions in Chapter I of the law imposing Sharia penalties, among other things, for theft offenses (Sariqah, Hirabah), adultery (Zina), rape (Zina Bil-Jabar), sodomy (Liwat), apostasy (Irtidad), and drinking intoxicating liquors. Section 94 on pregnancy out of wedlock was excluded from the provisions taking effect.

A new Criminal Procedure Code (full text) was also ordered effective as of January 1, 2019.

Council of Europe Decries Sharia In EU Nations

On Jan. 22, the Parliamentary Assembly of the Council of Europe adopted Resolution 2253 (2019), Sharia, the Cairo Declaration and the European Convention on Human Rights.The Resolution says in part:

The Assembly considers that the various Islamic declarations on human rights adopted since the 1980s ... fail to reconcile Islam with universal human rights, especially insofar as they maintain the Sharia law as their unique source of reference. This includes the 1990 Cairo Declaration on Human Rights in Islam, which, whilst not legally binding, has symbolic value and political significance in terms of human rights policy under Islam. It is therefore of great concern that three Council of Europe member States – Albania, Azerbaijan and Turkey ...– have endorsed, explicitly or implicitly, the 1990 Cairo Declaration, as have Jordan, Kyrgyzstan, Morocco and Palestine, whose parliaments enjoy partner for democracy status with the Assembly....

The Assembly is also concerned about the “judicial” activities of “Sharia councils” in the United Kingdom. Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.

Daily Mail reports on the Resolution.

European Court:Says Greece Should Not Have Applied Sharia Law In Will Contest

In Molla Sali v. Greece, (ECHR, Dec. 19, 2018), the European Court of Human Rights in a Grand Chamber judgment held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights. As summarized in part by a press release issued by the Court:

On the death of her husband, Ms Molla Sali inherited her husband’s whole estate under a will drawn up by her husband before a notary. Subsequently, the deceased’s two sisters challenged the validity of the will, arguing that their brother had belonged to the Thrace Muslim community and that any question relating to inheritance in that community was subject to Islamic law and the jurisdiction of the “mufti” and not to the provisions of the Greek Civil Code. They relied, in particular, on the 1920 Treaty of Sèvres and the 1923 Treaty of Lausanne, which provided for the application of Muslim customs and Islamic religious law to Greek nationals of Muslim faith....

Owing to the application of Muslim inheritance law to her husband’s estate – which law in Greece applied specifically to Greeks of Muslim faith – Ms Molla Sali had been deprived of the benefit of the will drawn up in accordance with the Civil Code by her husband, and had therefore been deprived of three-quarters of the inheritance. The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate. As the beneficiary of a will drawn up under the Civil Code by a testator of Muslim faith, Ms Molla Sali had therefore been in a situation comparable to that of a beneficiary of a will established under the Civil Code by a testator who was not of Muslim faith, but she had been treated differently on the grounds of the testator’s religion.

DC Circuit Remands Suit On Anti-Sharia Bus Ads

In American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority, (DC Cir., Aug. 17, 2018), the D.C. Circuit Court of Appeals remanded for further development of an argument based on a intervening Supreme Court decision a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that

make the point that the First Amendment will not yield to Sharia adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials. 

In a 2-1 decision, the majority held that WMATA did not engage in viewpoint discrimination in rejecting the ad. However, the U.S. Supreme Court's June 2018 decision in Minnesota Voters Alliance v. Mansky , according to the majority, raised an additional issue that the parties should have the opportunity to brief:

whether the discretion vested in a government official to permit or prohibit speech is “guided by objective, workable standards.” Mansky, 138 S. Ct. at 1891.... We must determine whether Guideline 9 is so broad as to provide WMATA with no meaningful constraint upon its exercise of the power to squelch.....

The parties’ briefs predate the decision in Mansky. Yet Mansky invites arguments about whether Guideline 9 is capable of reasoned application.

Judge Henderson dissented, arguing that the suit should be dismissed on mootness grounds. WTOP reports on the decision.

UAE Company Stops Payments, Saying Its Own Islamic Bonds Are No Longer Shariah-Compliant

According to a report yesterday in Bonds & Notes, an Abu Dhabi based company, Dana Gas, announced last month that it is ceasing payments on its 4-year sukuk that are to mature in October.  The company says it is taking this action because the bonds are no longer Shariah-compliant. Investors say that the payment stoppage on the $700 million (US) issue was really a way to avoid default, and they believe courts will not uphold the company's action.  Apparently there are no centralized Shariah boards to approve Islamic finance deal structures in Arab countries, leaving open the possibility of issuers making their own rulings as here.

Suit Seeking U.S. Edit of Qur'an Dismissed As Frivolous

In Levay v. United States, (ED MI, July 11, 2017), a Michigan federal district court, adopting a magistrate's recommendation (LEXIS link), dismissed as frivolous a suit by a Jewish plaintiff  seeking a formal declaration that "Koranic Sharia Law" is incompatible with U.S. constitutional law. The suit also asks for the court to direct Congress to outlaw certain passages from the Qur'an, to issues a federally approved and edited version of the Qur'an, to withdraw tax exempt status from mosques that do not adopt this new version, and to establish a National Islamic Registry Program. The court said in part:

Levay’s suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury.... Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence.... And, more fundamentally, Levay’s requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles..... Levay does not have standing to bring suit and requests remedies which violate the Constitution.

UPDATE: In Levay v. United States, 2017 U.S. Dist. LEXIS 130138 (ED MI, Aug. 16, 2017), the court denied a motion by the plaintiff to amend the judgment.

No Ramadan Divorces In Palestinian Territories

According to a report today from Al Jazeera, Mahmud Habash, the chief judge of Palestinian Islamic courts in the West Bank and Gaza, has ordered judges to grant no divorces during Ramadan.  Only religious courts have jurisdiction over divorces in the Palestinian Authority.  Habash said that based on experience from previous years, some litigants make "quick and ill-considered decisions" after they have not eaten or smoked.

Malaysian Politician Wants Ruling On Sharia Court Conviction

In Malaysia, Parliament member Khalid Abdul Samad last month was fined RM2,900 (the equivalent of $650 (US)) by the lower shariah court for giving a religious talk without having religious credentials in violation of Section 119 (1) of the Selangor Islamic Law Administration Enactment. Khalid insists he was giving a talk about his trip to Palestine, and was not giving a religious talk. As reported yesterday by FMT News, Khalid now wants the Election Commission to rule on whether this conviction disqualifies him from serving in Parliament.  Malaysia's constitution provides that an MP is disqualified if convicted of an offense by a "court of law" and is sentenced to a jail term of one year or more, or is fined not less than RM2,000.  Khalid's supporters argue that his violation was not a penal offense, and the Selangor shariah lower court is not a "court of law."

Jordan's King Appoints New Chief Islamic Justice and New Mufti

According to Jordan Times, King Abdullah of Jordan issued a royal decree yesterday endorsing a Cabinet decision appointing Sheikh Abdul Karim Khasawneh as the chief Islamic justice.  The chief Islamic justice oversees the Sharia courts that deal mainly with personal status law.  Before his appointment, Khasawneh served as grand mufti, heading the Iftaa Department that has authority to issue religious edicts. In a second royal decree yesterday, Mohammad Khalaileh was appointed grand mufti to replace Khasawneh.

UPDATE:  The appointment of a new Islamic chief justice was triggered by the resignation of the prior chief justice, Ahmad Hilayel, after he delivered a Friday sermon that embarrassed the Jordanian government.  According to Al Jazeera (Jan. 23), Hilayel criticized leaders of the Gulf States for not sharing their wealth with Jordan.

Does Sharia-Compliant Financing By Non-Profit Cause Loss of Property Tax Exemption?

In what may well be a case of first impression, the Islamic Center of Nashville on Monday filed suit in a Tennessee federal district court challenging its inability to maintain its property tax exemption after it financed new building construction employing a well-recognized Sharia-compliant technique that uses a legal fiction to avoid borrowing at interest. The Islamic Center of Nashville has continuously operated the Nashville International Academy, a grade K-8 school, at the same site since 1995.  In 2008 it constructed a new school building on the site, financing the construction through a 5-year Ijara agreement.  The agreement involved transfer of title to an entity owned by the bank in exchange for construction funds, repayment captioned as rent, and a return of title once the required number of "rent" payments had been made.

Tennessee Code Sec. 43-610.7 exempts from property tax:

real and personal property owned by religious, charitable, scientific or non-profit educational institutions which is occupied and used by such institutions purely and exclusively to carry out one or more of its purposes....

In May 2016, the Tennessee State Board of Equalization Appeals Commission concluded (full text of opinion) that, while it was sympathetic with the Islamic Center's sincere desire to comply with its religious principles, the formal transfer of title to an entity owned by the bank meant that the property was not exempt from taxation from 2008 to 2013 (when the Islamic Center regained formal title). The Islamic Center then sued for a declaratory judgment and damages.  The complaint (full text) in Islamic Center of Nashville v. State of Tennessee, (MD TN, filed 9/19/2016) argues:

Here, ICN was ironically denied the religious exemption from property taxes by Defendant specifically because of its adherence to its religious tenets.

The suit claims violations of state and federal RFRAs, RLUIPA, the Elementary and Secondary Education Act, and the Establishment Clause. The Tennessean reports on the lawsuit.

Illinois Court Recognizes Muslim Divorce In India Through Khula

Times of India reported yesterday on a June 28 opinion handed down by a Cook County, Illinois circuit court judge recognizing that a Muslim woman's first marriage had been validly dissolved in India in 2007 through the little-known wife-initiated Sharia law procedure of khula.  The issue arose when the woman's second husband raised as a defense in a divorce proceeding the argument that their marriage was never valid because the wife was never divorced from her first husband.

Court Says Religious Autonomy Precludes Adjudication of Suit By Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held that the "religious autonomy doctrine" requires it to dismiss a suit against a U.S. church by a convert from Islam to Christianity who was captured and tortured in Syria because of his conversion. The facts are set out more fully in a complaint (full text) filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to convert, but told First Presbyterian Church leaders that his conversion had to remain confidential because he periodically traveled back to Syria and the punishment for apostasy under Sharia law was death. Despite assurances of confidentiality, the church published an announcement of his baptism in its Order of Worship, which was posted on the World Wide Web.  After traveling back to Syria, plaintiff was bound, beaten and tortured by radical Muslims who threatened to behead him. He eventually escaped.  His suit alleges that the church is guilty of negligence, breach of contract and outrageous conduct leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, Oklahoma, (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of the names of those who have been baptized "is a key part of how the Church requires a conversion and baptism to be 'visible" to the world." The court went on to say:

the simple dispositive issue is whether the public dissemination of Plaintiff's name as a baptized person is "rooted in religious belief"....

[A] secular Court like this one must not consider claims ... that arise out of a sacrament because a sacrament is part of the most sacred beliefs of that religious institution.... Defendants' deeply held religious belief about the visible, public nature of baptism must not be disturbed by this Court. [emphasis in original]

Tulsa World reports on the decision, with additional background.

In Israel, Sharia Courts Must Now Display Israeli Flag

In Israel, personal status matters, such as marriage and divorce and in some cases custody and inheritance, are handled by religious courts of the various religious communities. These courts-- Jewish religious courts for the Jewish population, Sharia courts for the Muslim population, as well as Druze and Christian courts-- are part of the state judicial system. I24 reported yesterday that Justice Minister Ayelet Shaked has ordered that Sharia courts must now display Israeli flags and national symbols. Previously they have not done so. Shaked has also taken steps aimed at appointment of the first female as an Israeli Sharia Court judge and member of the selection committee for Muslim religious judges.

Britain's Home Office Launches Investigation Into Sharia Law

In Britain last week, Home Secretary Theresa May announced that her office has begun an independent investigation into the application of Sharia law in England and Wales.  The review will be chaired by Professor Mona Siddiqui, an internationally known expert in Islamic and inter-religious studies. Her panel of experts will be advised by two imams. According to the Department's May 26 press release:

The Home Secretary committed to an independent review of the application of Sharia Law as part of the government’s Counter-Extremism Strategy. The strategy notes that many people in England and Wales follow religious codes and practices, and benefit from the guidance they offer. However, there is evidence some Sharia councils may be working in a discriminatory and unacceptable way, seeking to legitimise forced marriage and issuing divorces that are unfair to women, contrary to the teachings of Islam. It will also seek out examples of best practice among Sharia councils.

Powers of Saudi Religious Police Are Curbed

Al Jazeera reports that Saudi Arabia's cabinet yesterday voted to strip the country's religious police-- the Commission for the Promotion of Virtue and Prevention of Vice-- of their power to detain or arrest those charged with violations of Islamic religious law.  The new regulations say: "Neither the heads nor members of the Haia are to stop or arrest or chase people or ask for their IDs or follow them - that is considered the jurisdiction of the police or the drug unit." Religious police were told that they should "carry out the duties of encouraging virtue and forbidding vice by advising kindly and gently."