The Rights of Religious Minorities in Iraq: The Case of the Forced Conversion of Minors

2021 ◽  
pp. 1-25
Author(s):  
Harith Al-Dabbagh
Keyword(s):  
Islamic Law ◽  
Middle Eastern ◽  
Case Law ◽  
Religious Minorities ◽  
Early 21St Century ◽  
Legal Questions ◽  
Conversion To Islam ◽  
Minor Children ◽  
The Right ◽  
A Minor

Abstract Religion raises many legal questions in confessional systems where a minor child is usually assigned the parents’ religion ex officio. In Iraq, as in many Middle Eastern countries, the conversion to Islam of one of the parents results in the conversion of their minor children. For decades, the Iraqi Court of Cassation has granted children the right to choose their religion upon reaching majority. From the early 21st century, the case law of the Court of Cassation has evolved towards denying children this right of option (iḫtiyār). The child is therefore deprived of his/her right to choose and must remain Muslim. In this article, the author criticizes this reversal of jurisprudence and deplores its dire consequences on social peace. After analyzing the teachings of Islamic law and the texts of positive Iraqi law, he concludes that the new trend of the Court of Cassation is ill-founded and flawed.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Certain aspects of allimet accounting and liability for failure to comply with obligations

2020 ◽  
Vol 4 (4) ◽  
pp. 156-160
Author(s):  
Yuliya Us
Keyword(s):  
Child Support ◽  
Legal Practice ◽  
Marriage And Family ◽  
Financial Responsibility ◽  
Positive Side ◽  
Procedure Code ◽  
Minor Children ◽  
The Right ◽  
A Minor ◽  
Family Code

Unfortunately, for ten years now, Ukraine has been the European leader in the number of divorces, as Ukrainians divorce almost twice as often as Europeans. If a couple who have a child divorces, then the person with the maintenance of a minor child also faces the greatest difficulties. There have always been parents in legal practice who were irresponsible in paying child support for their own son or daughter. This person is trying to avoid financial responsibility, so this issue is a huge problem today. Today is characterized by the recognition of women and men as equal persons. According to the Constitution of Ukraine, marriage is based on the free consent of a man and a woman. Each spouse has equal responsibilities and rights in marriage and family. The Constitution of Ukraine states that the right to family, motherhood and fatherhood in our state is protected by the state. In this paper, we will analyze alimony as an object of children's property rights. The article examines the current legislation, the rules of which regulate the procedure for awarding child support and the procedure for enforcement of a court decision on the recovery of child support. The issue of maintenance of minor children is mentioned in the following regulations: Law of Ukraine of 17.05.2017 № 2037-VIII "On Amendments to Certain Legislative Acts of Ukraine to Strengthen the Protection of the Child's Right to Proper Maintenance by Improving the Procedure for Recovery of Alimony"; Family Code of Ukraine of January 10, 2002 № 2947-III; Civil Code of Ukraine of January 16, 2003 № 435-IV; Civil Procedure Code of Ukraine Law of 18.03.2004 № 1618-IV, as well as cases from the unified register of pre-trial decisions, because it is important to analyze the practice of judges of Ukraine on this issue. On the positive side, our state has been actively working to close the gap on alimony payments for the last three years. The article will discuss ways to collect child support and leverage in the event of non-performance or improper performance of child support.

scholarly journals Socio-Religiuos Model of Disability: Sebuah Rancangan Awal

2020 ◽  
Vol 4 (2) ◽  
pp. 143
Author(s):  
Zanuar Mubin ◽  
Masykur Rozi
Keyword(s):  
Disability Studies ◽  
Islamic Law ◽  
Persons With Disabilities ◽  
Disability Discrimination ◽  
Islamic Science ◽  
The Right ◽  
A Minor ◽  
Access Right ◽  
Right Of Access ◽  
Islamic Society

Studi disabilitas masih menjadi tema kecil dalam ilmu pengetahuan Islam. Hal ini menunjukkan bahwa ilmu pengetahuan Islam tidak memiliki misi untuk mengatasi permasalahan diskriminasi yang dialami penyandang disabilitas. Hal ini mengakibatkan penyandang disabilitas dikucilkan bahkan dalam komunitas Muslim. Kami mengidentifikasi bahwa kurangnya akses yang dilakukan oleh masyarakat Muslim disebabkan oleh kurangnya ilmu- ilmu keislaman dalam mendorong mereka untuk berperilaku secara inklusif. Artikel ini mencoba menawarkan model sosio-religius dalam mengentaskan diskriminasi disabilitas dengan dua level metodologis. Level pertama adalah mengkritisi epistemologi hukum Islam untuk mendobrak bias normalitas yang berakibat pada tidak diangkatnya masalah disabilitas sebagai tema dalam hukum Islam. Pada level kedua dilanjutkan dengan menginternalisasi filosofi model disabilitas sosial pada ahliyyah dan maqasid, sehingga epistemologi hukum Islam memiliki gagasan inklusi. Hasil penelitian ini adalah bahwa hak akses dijamin oleh ahliyah al-wujub, dan strategi pemenuhan hak akses diatur dalam teori maqasid. Metode ini menghasilkan konsep hukum Islam praktis yang dapat dijadikan dasar untuk membentuk masyarakat Islam yang inklusif.[Disability studies are still a minor theme in the Islamic science. This indicates that Islamic science does not have a mission to alleviate discrimination problems experienced by persons with disabilities. This results in disability being excluded even in Muslims’ community. We identified that lack of access performed by Muslims society is caused by lack of Islamic sciences in encouraging them to conduct inclusively. This article seeks to offer a socio-religious model in alleviating disability discrimination with two methodological levels. The first level is crticizing epistemology of Islamic law to break down the bias of normality which results in the lack of appointment of disability problems as themes in Islamic law. At the second level is continued by internalizing social-disability model philosophy in ahliyyah and maqa>s}id, so that the epistemology of Islamic law has the idea of inclusion. The results of this study are that the right of access is guaranted by ahliyah al-wuju>b, and strategy of fulfilling access right is regulated in light of maqa>s}id theory. This method fruits the concept of practical Islamic law which can be used as a basis for forming an inclusive Islamic society.]

scholarly journals The Adoption of Found Child According to Islamic Law and Law No. 3 of 2006 on Religious Courts in the Perspective of Maqasid Al-Shari'ah

2021 ◽  
Vol 21 (1) ◽  
pp. 89-112
Author(s):  
Siti Muniroh ◽  
Khoiruddin Nasution
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Adoptive Parents ◽  
Adopted Child ◽  
Judicial Decisions ◽  
Education Status ◽  
Child Adoption ◽  
The Right ◽  
A Minor ◽  
Religious Courts

Islam is a religion that regulates everything in the life of Muslims. No exception in the case of adoption, the jurisdiction of the court up to the adoption of a minor. in the case of child adoption. Today, Islam applies limitations in some matters, such as the prohibition of lineage, the establishment of non-mahram relationships to the issue of inheritance and guardianship. In addition to that field, there is the authority of the judge in the Religious Court to be ijtihad to determine the best decision for the child of the findings as the extent of its authority is based on Law No. 3 of 2006 on Religious Justice. The purpose of this study is to analyze how the legal impact on the adoption status of the findings based on the rationale maqasidus syar'i and its relevance to the development of Islamic law. Research methods use the study of literature through its sources of reference through primary law, both derived from religious sources and from positive legal sources that apply in Indonesia. In addition, the researcher used jurisprudence from the relevant judicial decisions used.The results of this research are (1) through the approach of maqasid al shari'ah doruriyah that children (including children of discovery) must be protected their rights, both their right to life (an nafs) and their intellect (al aql), the right of lineage, religion, as well as paying attention to his rights, including his right to obtain the obligatory will/right of inheritance from the parents who raised him (al maal), (2) The legal impact is, the child is found as a person, he is an orphan so the religious treatment is the same as an orphan. While the adopted child then the legal status can be assessed through recognition by the adoptive parents such as the child of guardianship, then the adopted child has the right to be guarded by his adoptive parents due to the absence of a lineage guardian. (3) While the relevance to the development of Islamic law is that in maintenance (other than the issue of lineage and inheritance), then the child has the same protection and education status of both adoptive parents. There is a need for efforts from various related parties to prioritize the benefits to protect from unwanted things and save the lives of children.

A Tale of Two Cities: Fundamental Rights Protection in Strasbourg and Luxembourg

2018 ◽  
Vol 20 ◽  
pp. 3-31
Author(s):  
Síofra O’LEARY
Keyword(s):  
Religious Freedom ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Court Case ◽  
The European Union ◽  
Religious Symbols ◽  
The Right To Privacy ◽  
Legal Questions ◽  
The Right

AbstractThis article tackles questions relating to the interrelationship between the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, as well as the roles of the two European courts charged with their interpretation and application, by way of two case studies. The cases chosen address two very different issues—surrogacy and the right to privacy and family life on the one hand, and religious freedom and the wearing of religious symbols in the workplace on the other. On the surrogacy issue the article refers to an Irish Supreme Court case as well as case law from the Strasbourg and Luxembourg courts to illustrate how limits to the jurisdiction of the two European courts is, or is not, clearly articulated and the legal tools used when addressing sensitive legal questions of this nature. As regards the wearing of religious symbols in the workplace, the article concentrates on cases originating in the United Kingdom and France which have been examined by the Strasbourg court and highlights the similarities and differences between that case law and recent judgments of the Luxembourg court, called on, for the first time, to tackle questions of discrimination on grounds of religion with reference to EU anti-discrimination directives and the provisions of the Charter on both equality and religious freedom.

scholarly journals Hak Pemeliharaan Anak bagi Mualaf: Konflik Undang-Undang di Malaysia

2021 ◽  
Vol 33 (1) ◽  
pp. 51-78
Author(s):  
Redwan Yasin ◽  
◽  
Noor Aziah Mohd Awal ◽  
Nurhafilah Musa
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Legal Issues ◽  
Law Reform ◽  
Main Concern ◽  
Civil Marriage ◽  
Library Research ◽  
Conversion To Islam ◽  
Application Procedure ◽  
The Right

In Malaysia, disputes concerning custody rights are among the frequently-debated topics in cases of conversion to Islam, if it involves a marriage previously registered under civil law. Since coming into force, a frequent issue that has arisen is the rights of convert spouses under the Law Reform (Marriage and Divorce) Act 1976 (Act 164), specifically Sections 3 and 51, as the muallaf (convert to Islam) does not have the right to petition for dissolution of marriage under this Act. However, in 2017, amendments were made to this Act to bring about better and more efficient resolutions to any legal issues arising in such matters. Therefore, this article aims to compare the concept of hadhanah (care and protection of children) in Islamic law with custody rights under Malaysian civil law. The factors that frequently give rise to conflict were analysed, as well as the implications of the 2017 amendments (Act 164) concerning the application procedure for custody rights of convert spouses. Library research was employed to collect data for content analysis. The findings show that the amendments are able to aid in resolving issues concerning divorces of converts who were previously bound to a civil marriage without the right to petition for dissolution. The amendment also allows both spouses the right to apply for custody of a child after their divorce has been finalized by the civil court. The study further recommends that in such cases, child welfare, and not the rights of the converted parent, should be the main concern at all times.

The AMA Guides in Pennsylvania “Post-Protz”: Act 111 and Case Law Update

2020 ◽  
Vol 25 (3) ◽  
pp. 12-19
Author(s):  
Justin D. Beck ◽  
Judge David B. Torrey
Keyword(s):  
Case Law ◽  
General Assembly ◽  
Disability Benefits ◽  
Permanent Disability ◽  
Sixth Edition ◽  
Legal Questions ◽  
The Supreme Court ◽  
Recent Edition ◽  
Impairment Ratings

Abstract Medical evaluators must understand the context for the impairment assessments they perform. This article exemplifies issues that arise based on the role of impairment ratings and what edition of the AMA Guides to the Impairment of Permanent Impairment (AMA Guides) is used. This discussion also raises interesting legal questions related to retroactivity, applicability of prior precedent, and delegation. On June 20, 2017, the Supreme Court of Pennsylvania handed down its decision, Protz v. WCAB (Derry Area Sch. Dist.), which disallows use of the “most recent edition” of the AMA Guides when determining partial disability entitlement under the Pennsylvania Workers’ Compensation Act. An attempted solution was passed by the Pennsylvania General Assembly and was signed into law Act 111 on October 24, 2018. Although it affirms that the AMA Guides, Sixth Edition, must be used for impairment ratings, the law reduces the threshold for total disability benefits from 50% to 35% impairment. This legislative adjustment benefited injured workers but sparked additional litigation about whether, when, and how the adjustment should be applied (excerpts from the laws and decisions discussed by the authors are included at the end of the article). In using impairment as a threshold for permanent disability benefits, evaluators must distinguish between impairment and disability and determine an appropriate threshold; they also must be aware of the compensation and adjudication process and of the jurisdictions in which they practice.

Application of Statutes of Limitations to Islamic Banking: The Case of Malaysia

2020 ◽  
Vol 17 (1) ◽  
pp. 56-69
Author(s):  
Aishath Muneeza ◽  
Zakariya Mustapha
Keyword(s):  
Qualitative Research ◽  
Financial Institutions ◽  
Research Methodology ◽  
Islamic Law ◽  
Islamic Banking ◽  
Legal Action ◽  
Qualitative Research Methodology ◽  
The Right ◽  
Limitation Of Action ◽  
Insight Into

Limitations of action designate extent of time after an event, as set by statutes of limitations, within which legal action can be initiated by a party to a transaction. No event is actionable outside the designated time as same is rendered statute-barred. This study aims to provide an insight into application and significance of Limitations Act 1950 and Limitation Ordinance 1952 to Islamic banking matters in Malaysia as well as Shariah viewpoint on the issue of limitation of action. In conducting the study, a qualitative research methodology is employed where reported Islamic banking cases from 1983 to 2018 in Malaysia were reviewed and analysed to ascertain the application of those statutes of limitations to Islamic banking. Likewise, relevant provisions of the statutes as invoked in the cases were examined to determine possible legislative conflicts between the provisions and the rule of Islamic law in governing the right and limitation of action in Islamic banking cases under the law. The reviewed cases show the extent to which statutes of limitations were invoked in Malaysian courts in determining validity of Islamic banking matters. The limitation provisions so referred to are largely sections 6(1)(a) and 21(1) Limitations Act 1953 and section 19 Limitation Ordinance 1953, which do not conflict with Shariah viewpoint on the matter. This study will prove invaluable to financial institutions and their customers alike in promoting knowledge and creating awareness over actionable event in the course of their transactions.

Metodologi Pengeluaran Fatwa di Jawatankuasa Fatwa Negeri Johor

2018 ◽  
Vol 13 (1) ◽  
pp. 70-88
Author(s):  
Mohd Faez Mohd Shah ◽  
Norhidayah Pauzi
Keyword(s):  
Literature Review ◽  
Research Methods ◽  
Research Methodology ◽  
Research Method ◽  
Islamic Law ◽  
Field Research ◽  
The State ◽  
Original Source ◽  
Interview Methods ◽  
The Right

In the discipline of Islamic law research, strong proofing and clear Istinbat method are key pillars in the construction of Islamic law based on the application of the science of usul al-fiqh and maqasid al-shari'ah. However, what happens at the state of Johor’s fatwa institution is the opposite. The fatwa research methods applied by the Fatwa Committee of Johor in resolving current fatwa issues is not based on the right and true discipline of Islamic law research. In fact, current inputs related to fatwa issues are not explicitly stated in the method of determining the law either in the form of reality or scientifically verified. Therefore, this paper will discuss the fatwa procedures undertaken by the Fatwa Committee of Johor based on the methods applied in resolving current issues. The research methodology adopted is library and interview methods. This study shows that fatwa management and production in the state of Johor is placed under the jurisdiction of the Mufti of Johor’s Department. The methods adopted by the Fatwa Committee of Johor covers two methods, namely: internal research methods including literature review through the application of original source and proofs based on syarak. Second: field research method that includes an external review or going to the location of study such as conducting observation, questionnaires and interviews including referrals to specialists of different fields. Maslahah and mafsdah consideration are also implemented by the Fatwa Committee in every fatwa decision based on the standard that meets the interests of maqasid al-shari'ah. Keywords: Metode, fatwa, istinbat, usul al-fiqh, maqasid al-shari’ah ABSTRAK Dalam disiplin penyelidikan hukum Islam, kekuatan pendalilan dan kaedah istinbat yang jelas merupakan tunggak utama dalam pembinaan hukum Islam berasaskan kepada aplikasi ilmu usul al-fiqh dan maqasid al-shari’ah. Namun begitu, apa yang berlaku di institusi fatwa negeri Johor adalah sebaliknya. Kaedah penyelidikan fatwa yang diaplikasi oleh Jawatankuasa Fatwa Negeri Johor dalam menyelesaikan isu fatwa semasa tidak berasaskan kepada disiplin penyelidikan hukum Islam yang tepat dan sebenar. Malahan input-input semasa yang berkaitan dengan isu fatwa juga tidak dinyatakan secara jelas dalam kaedah penentuan hukum sama ada dalam bentuk realiti yang berlaku atau pembuktian secara saintifik. Justeru, kertas kerja ini akan membincangkan prosedur fatwa Jawatankuasa Fatwa Negeri Johor berdasarkan metode-metode yang diaplikasi dalam menyelesaikan isu-isu yang bersifat semasa. Metodologi kajian yang digunakan dalam kajian ini adalah melalui metode perpustakaan dan metode lapangan. Hasil kajian menunjukkan bahawa pengurusan dan pengeluaran fatwa di negeri Johor hanya terletak di bawah bidang kuasa Jabatan Mufti Johor. Metode fatwa yang diamalkan oleh Jawatankuasa Fatwa Negeri Johor merangkumi dua metode iaitu pertama, kaedah penyelidikan dalaman yang merangkumi kajian kepustakaan menerusi pengaplikasian dari sumber asas dan dalil-dalil syarak. Kedua, kaedah penyelidikan lapangan yang meliputi kajian luaran atau turun ke lokasi kajian seperti observasi, soal selidik dan temubual dan rujukan kepada pakar dalam bidang yang berlainan. Pertimbangan maslahah dan mafsdah juga dimplementasikan oleh Jawatankuasa Fatwa dalam setiap keputusan fatwanya berasaskan standard yang menepati kepentingan maqasid al-shari’ah. Kata kunci: Metode, fatwa, istinbat, usul al-fiqh, maqasid al-shari’ah

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