Beyond Republic or Emirate: Afghan Constitutional System at Crossroads

 Introduction

President Biden’s declaration of US withdrawal from Afghanistan has raised concerns about the future of the Afghan constitutional system. Afghanistan’s current Constitution was adopted in 2004. During the process of the drafting of this Constitution, the role of Islam in the legal system and the type of the government were two most contentious issues. Foreign powers and Western media were skeptical about the compatibility of Islam with international human rights law especially related to the rights of women and religious minorities. Therefore, the Constitution assigned a symbolic role to Islam in the legal system while requiring the State to observe the UN Charter and the Universal Declaration of Human Rights. Such was the fear of the enforcement of Sharia in the legal system that the Constitution opted to embrace powerful Presidency and weak Supreme Court to dilute the effect of Islamic repugnancy clause as laid down under its article 3 that tried to appease Islamists. (President Hamid Karzai dropped the idea of the Constitutional Court from the Draft Constitution, arguing that it may act like Iran’s Guardian Council to establish theocracy). An unintended or perhaps intended consequence of such constitutional design has been the absence of adequate institutional check on the executive authority and lack of enforcement of constitutionally guaranteed human rights that have been frequently violated by the Afghan government, foreign troops, and non-state actors such as local warlords and the Taliban.

Now that the foreign troops are set to leave Afghanistan by September this year, will the current constitutional system survive or accommodate the changed political reality? It is this specific question that I want to explore in this blog post.

Embracing Ideals but Not Institutions

One of the key strengths of the 2004 Constitution is that it combines allegiance to Islam and adherence to human rights. The Constitution declares Afghanistan an Islamic Republic and provides that “no law shall contravene the beliefs and rulings of the holy religion of Islam in Afghanistan.” Such endorsement of Islam in the Constitution is unsurprising as Islam had a prominent role in all Afghan constitutions since the adoption of its first constitution in 1923 simply because the overwhelming population of Afghanistan (about 99.7%) professes Islam as its religion. Indeed, Islam plays a crucial role in state-building in ethnically diverse Afghan society. Simultaneously, the Constitution enshrines several fundamental rights and freedoms including the right to equality, life, liberty, property, work, due process of law and education, and freedom of expression, thought and association.

While the 2004 Constitution succeeds in combining Islam with human rights norms, it fails to establish an institutional mechanism for the realisation of the ideals of the rule of law and accountable, limited, government — endorsed both by Islam and human rights law. This is a fatal constitutional flaw since one of the most important functions of a constitution in divided societies is to provide an institutional mechanism to resolve political conflicts through negotiations to avoid recourse to violence. Rather than resolving political differences through dialogue, the institutional structure under the 2004 Constitution has exacerbated them by ambiguously assigning the interpretative and review authority to the Supreme Court as well as the Independent Constitutional Implementation Commission. As a result, human rights abuses and corruption became rampant while the executive authority of the President and other government functionaries remained unchecked. This has adversely affected the public perception about the legitimacy of the current constitutional order.

Islamic Republic v Islamic Emirate

Indeed, it is the rampant corruption and ineffective governance that bolster the Taliban’s rejection of the republican form of government in favor of their “Islamic Emirate”. Ostensibly, the Emirate system of governance bears a close resemblance with the Afghan presidential system. The Taliban constitutional charter, available in the draft of 1998 ratified in 2005, however, does not specify the selection process of the Amir. The Amir, who will be a male Muslim and follower of the Hanafi school, appoints the members of the legislature, the Islamic Council, and the judges of the supreme court. While the Taliban charter ensures independence of the judiciary, it assigns the duty of the interpretation of the charter to the Islamic Council rather than the supreme court. This however does not mean that the Taliban do not appreciate the institutional structure of the modern nation state. The Taliban  charter proposed the office of the prime minister and recognized the distinction between the head of the State, Amir, and the head of the government, the prime minister.

Curiously, the Taliban charter also enshrines a bill of rights that includes human rights such as the presumption of innocence, prohibition of torture and forced confession, rights to life, liberty, privacy, due process of law, legal representation, freedom of expression (within the limits of Sharia), peaceful assembly, property, and work, and primary education. But the Taliban charter does not mention public participation, not even through the participatory process of loya jirga (grand assembly) that is deeply entrenched in Afghan history.

Reconciliation between the Republic and Emirate

Frequent references to Sharia in the Taliban charter and their public statements indicate that they believe that the source of legitimacy for state governance is Sharia rather than public support. The republic under the 2004 Constitution vests sovereignty in the people to be exercised through their chosen representatives in a system based on the separation of powers. The emirate in contrast vests sovereignty in Allah (ordained through Sharia) to be imposed by the Amir in consultation with a council in a system that is based on the presumption of the piety and incorruptibility of the Amir and his chosen council (hence there is no need for separation of powers). Such formulations of the republic and the emirate make them not only conflicting but also mutually exclusive. The clash between the sovereignty of the people and the sovereignty of Allah appears irreconcilable. Is there a way out?

Like all ideals, republic and emirate systems are prototypes, pristine and exclusive as ideas but flexible to accommodate reality. Afghans need not see far back in their own constitutional history or in the contemporary constitutional models in neighboring Muslim countries that have assimilated Allah’s sovereignty with public representation. For instance, the 1964 Constitution of Afghanistan declared Islam as the state religion but provided that national sovereignty belonged to the Afghan people. An example of the combination of God’s sovereignty with the representative form of government could be found in the preamble of the Constitution of the Islamic Republic of Pakistan, which provides, “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.” Similarly, the experience of neighboring Islamic Republic of Iran, run by fuqaha (jurists) for the past four decades, provides many insights about the workings of an ideal type within the intuitional framework of a modern nation state.

In many Muslim-majority countries, public debates have progressed from the question of compatibility of democracy with Islam, and are now focused on devising the institutional form of democracy specific to their respective social realities and determining the role of Islam in political governance. After much scholarly debate, it has been realised that, far from being conflicting, theocratic sovereignty and public sovereignty are mutually reinforcing since God’s authority on earth is vested neither in rulers nor in jurists but in the entirety of Muslim ummah.

Conclusion

The history of Afghanistan suggests that its current constitutional system is capable of accommodating the Taliban’s demand of the enforcement of Sharia as interpreted by the Hanafi jurists. Indeed, adherence to the Hanafi school has been the permanent feature of the Afghan legal system ever since the amendment of its first Constitution in 1925. (The modernist King Amanullah Khan, who promulgated the first Constitution in 1923, was forced in 1925 to declare that the Hanafi school was the official school of jurisprudence). More pressing issues that will require consideration relate to the role of Islam in political governance and the vesting of interpretative authority of Islam in particular persons or institutions in Afghanistan. Precisely, these issues relate to the questions: what and how much role should Islam have in the political and legal system? Who should have the authority to interpret the divine texts of Islam and in which institutional form e.g., advisory board of ulama or Islamic judicial review and under what procedures? It seems that both the Taliban and the current Afghan government are least likely to discuss these structural issues because it will expose their idealist positions and will subject their conduct to public scrutiny and accountability—dreaded by both religious and political elites.

Suggested citation: Zubair Abbasi, Beyond Republic or Emirate: Afghan Constitutional System at Crossroads, Int’l J. Const. L. Blog, Apr. 27, 2021, at: http://www.iconnectblog.com/2021/04/beyond-republic-or-emirate-afghan-constitutional-system-at-crossroads/

Reasserting the Authority of State: Comment on Asia Bibi v The State

 Summary

While acquitting Asia Bibi after finding inconsistencies in the statements of prosecution witnesses for the alleged offence of blasphemy, the judges of the Supreme Court of Pakistan emphasized that the protection of non-Muslim minorities is a religious obligation of the Muslim majority in Pakistan. They reminded the general public that tolerance is the basic principle of Islam which safeguards the fundamental right to freedom of thought, conscience and belief. This judgment has sent a clear message that only the State has the authority to prosecute for the offense of blasphemy through its courts, which are to administer justice in accordance with the principles enshrined in the law and the Constitution of Islamic Republic of Pakistan.

Commentary on the Judgment

Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous….1

The above observation of Justice Asaf Saeed Khan Khosa epitomizes the judgment of the Supreme Court of Pakistan in Mst. Asia Bibi v The State.2 The trial court convicted Asia Bibi to death for the offense of blasphemy, and the Lahore High Court confirmed her conviction. She appealed to the Supreme Court against her conviction. This note provides a brief commentary on the judgment of the Supreme Court by summarizing its main points.

A Bench of three judges unanimously accepted the appeal. Chief Justice Mian Saqib Nisar and Justice Asif Saeed Khosa wrote separate notes. The third judge, Justice Mazhar Alam Khan Miankhel, concurred without adding a separate note.

One of the remarkable features of this judgment is that the Chief Justice Mian Saqib Nisar started his note with Kalimah-e-Shahadat (oath of faith), which he described as “the essence of Islam and the recitation of which makes us Muslims….” This opening indicates that the Chief Justice felt it necessary to assure the general public that he himself is a good Muslim and that the acquittal of the appellant, in this case, does not reflect any weakness in his faith as a true believer of Islam.

In the next paragraph, the Chief Justice affirms that “Tolerance is the basic principle of Islam. It is a religious and a moral duty and further relates to the dignity of human beings, the equality amongst all creations of Allah and also to the fundamental freedom of thought, conscience and belief.”3 The last sentence depicts the pluralistic nature of the legal system of Pakistan which operates under the common law doctrine of precedent based on multiple sources such as constitutional law, Islamic law, and international human rights law.

Further, Chief Justice Nisar refers to the Qur’anic verse 2:256,4 to affirm that Islam guarantees freedom of religion. Over the next few pages, he quotes a number of additional verses of the Qur’an to establish that love, respect, and obedience of the Prophet is a fundamental part of Muslim faith. He asserted that, for this reason, “anything which in any way attacks any aspect of his sacred life, infuriates Muslims to an intolerable limit, resulting in extremely serious law and order situation, with grievous, disastrous consequences.”5 For this reason, he explains, the Pakistani parliament inserted Section 295-C in the Penal Code to prosecute blasphemy offenses before the court.

The Chief Justice further explains that Pakistani blasphemy laws have roots in colonial history. The opinion notes that it was in the historical context of the publication of a blasphemous pamphlet/book by a Hindu publisher Rajpal and the resulting agitation of Muslims that the British government inserted Section 295-A in the Penal Code of 1860, as amended in 1927. Furthermore, the Chief Justice refers to the efforts of the government of Pakistan at the United Nations to eliminate the instances of the blasphemy of the Prophet Muhammad.

The Chief Justice highlights several instances of the misuse of blasphemy laws in Pakistan, noting that, since 1990, 62 people have been killed as a result of blasphemy charges even before any trial since 1990. In the lights of these facts, he emphasized that only the State has the authority to punish for the offense of blasphemy. He referred to the judgment of the Supreme Court in the Mumtaz Qadri case (PLD 2016 SC 17) in which the Court held that it is the duty of the State to ensure that innocent persons are not prosecuted upon the allegation of the commission of blasphemy. It is only after providing this background that Chief Justice Nisar proceeded to evaluate the evidence which led him to acquit the appellant from the charges of blasphemy.

Justice Khosa started his note with the narration of the facts of the case. He identified the weaknesses in the prosecution’s case by highlighting the delay in the registration of the First Information Report; inconsistencies in the statements of prosecution witnesses; and the context of the criminal complaint in which two young sisters accused Asia Bibi of the offence of blasphemy after their exchange of hot words over the refusal of the two sisters to drink water fetched by her because she was a Christian. After a detailed evaluation of the evidence and contentions of the lawyers of prosecution and defence, Justice Khosa concluded:

The glaring and stark contradictions in the evidence produced by the prosecution in respect of every factual aspect of this case, noticed by me above, lead to an irresistible and unfortunate impression that all those concerned in the case with providing evidence and conducting investigation had taken upon themselves not to speak the truth or at least not to divulge the whole truth. It is equally disturbing to note that the courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood.6

This attitude, according to Justice Khosa, was in stark contrast with the Qur’anic injunctions which ordain firm standing for justice and strictly prohibit distortion of testimony.7

Despite coming to the same conclusion, the difference in the tone of the language of the two judges is apparent. Chief Justice Nisar dedicated half of his judgment to contextualizing the blasphemy laws in Pakistan and to highlighting the importance of religious tolerance in Islam. By contrast, Justice Khosa minutely dissected the evidence and exposed contradictions and inconsistencies in the statements of prosecution witnesses. In their separate notes in this judgment, both judges tried to balance the tension between the administration of justice through the application of the law and public sentiment demanding the strictest possible punishment for the offence of blasphemy. Given that the appellant belonged to the minority community of Christians in Pakistan, Chief Justice Nisar concluded his note with the following saying of the Prophet (peace be upon him):

Beware! Whoever is cruel and hard on a non-Muslim minority, or curtails their rights, or burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment. (Abu Dawud)8

Similarly, Justice Khosa referred to the charter of the Prophet (peace be upon him) granted to a delegation from St. Catherine’s Monastery in which all Christians were declared to be allies of Muslims and their ill-treatment was equated with the violation of God’s covenant.9 In this way, both judges sent a clear message to the general public that the protection of minorities in Pakistan is a religious obligation of the Muslim majority.

---

[1] . Asia Bibi v The State, Criminal Appeal N0.39-L at 55, https://beta.shariasource.com/documents/3381.

[2] Asia Bibi, Criminal Appeal N0.39-L, at 55.

[3] Asia Bibi, Criminal Appeal N0.39-L, at 2.

[4] “There should be no compulsion in religion. Surely, the right way has become distinct from error.” Asia Bibi, Criminal Appeal N0.39-L, at 2.

[5] Asia Bibi, Criminal Appeal N0.39-L, at 8-9.
[6] Asia Bibi, Criminal Appeal N0.39-L, at 50.

[7] “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do” (Q. 5:8). “So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, acquainted” (Q. 4:135). Asia Bibi, Criminal Appeal N0.39-L, at 50.

[8] Asia Bibi, Criminal Appeal N0.39-L, at 34.

[9] Asia Bibi, Criminal Appeal N0.39-L, at 54.

Commentary :: Criminalization of Triple Ṭalāq in India: A Dilemma for Religiously Divorced but Legally Married Muslim Women

 India’s legislature has criminalized instant divorce (triple ṭalāq) through the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019. This piece of legislation is a result of the Supreme Court judgment in the Shayara Bano case two years ago. In this judgment, the Court declared the practice of triple ṭalāq a violation of Muslim women’s constitutional rights and gave the legislature six months “to consider legislation” regarding triple ṭalāq.

The stated objective of the Act, as its name suggests, is to protect the rights of married Muslim women by safeguarding them from being instantly divorced by their husbands. The Act does so by declaring triple ṭalāq to be “void and illegal” and subjecting the offender husbands to imprisonment of three years and an unspecified fine. The Act ensures that the aggrieved wife’s right to maintenance and custody of minor children is protected. She is entitled to a “subsistence allowance” from her husband for herself and for her children, and she is given the custody of her minor children.

For the Act’s critics, rather than protecting the rights of married women, the Act is intended to prosecute Muslim men. In response to this criticism, the Act’s proponents note that the Act provides the following three safeguards against malicious prosecution:

• The offense is cognizable only if information is given to the police by: (i) the married woman upon whom triple ṭalāq is pronounced, or (ii) any person related to her by blood or marriage;
• The offense is non-bailable, but the Magistrate may grant bail if s/he is satisfied that there are reasonable grounds for granting bail after hearing the aggrieved woman;
• The offense may be compounded by the Magistrate upon the request of the aggrieved woman. This means that she is empowered to stop legal proceedings against her husband should she wish to settle the dispute outside of court. The terms and conditions of the compounding of the offense, however, will be determined by the Magistrate.

The efficacy of these safeguards to limit the prosecution and incarceration of Muslim men will be tested in the near future when the Act comes into force. The more important question to ask at this stage is whether the Act indeed live ups to its name in protecting the rights of married Muslim women? To the dismay of women’s rights activists, the Act does not provide any new rights to Muslim women. They contend that the so-called entitlements of aggrieved women to “subsistence allowance” and “custody of children” provided under the Act are already available under the laws of maintenance, custody, and guardianship of children.

Ironic as it may sound, the Act is likely to further jeopardize the rights of married Muslim women, who, if subjected to triple ṭalāq, will be divorced religiously but remain married legally. Far from enabling them to maintain an existing marriage or to end an unhappy marriage and then to remarry and start a new family, women subjected to triple ṭalāq will be stuck in “limping marriages.” They may be permanently deserted by a husband who is no longer religiously married to them, or if they entered into a second marriage after triple ṭalāq, they could be exposed to the punishment of imprisonment of up to seven years for bigamy under section 494 of the Indian Penal Code. Meanwhile, their “husbands” would have the freedom to enter into another marriage because of the permissibility of polygamy for Muslim men in India. It is indeed unfortunate that neither the Act nor other Indian legal provisions provide any remedy against “limping marriages” to such “half married and half divorced” Muslim women who are already marginalized in Indian society for their being “a minority within a minority.”

It will, however, be an exaggeration to pit uncodified and unofficial sharīʿa against state enforced official law on the issue of triple ṭalāq. After all, Muslim family law in India, known as Muslim Personal Law, is based on judicial precedents of superior Indian Courts rather than classical fiqh book or fatāwā. These courts have already settled the issue of triple ṭalāq by formulating a number of conditions for its validity: a Muslim husband must have a “reasonable cause” to divorce his wife; the divorce must be preceded by reconciliation efforts by two arbiters each representing one party; and the pronouncement of triple ṭalāq must also be properly evidenced in the form of a formal declaration by the husband. (See Iqbal Bano v State of UP AIR 2007 SC 2215; Shamim Ara v State of UP AIR 2002 SC 3551). To effectively enforce these principles, the legislature should have passed a procedural law to provide an institutional mechanism for the process of reconciliation before divorce.

In view of this already existing Indian law, the only contribution of the Act is that it penalizes the pronouncement of triple ṭalāq to create a deterrence against its pronouncement. But will the criminalization of triple ṭalāq save broken marriages by protecting the marital rights of Muslim women? It is important to note that the Act only criminalizes triple ṭalāq and not the ṭalāq itself. In other words, a Muslim husband still enjoys his unfettered right to unilateral no-fault divorce to end his marriage by pronouncing ṭalāq, which becomes effective after his wife completes three menstrual cycles. Does Indian law provide a similar unilateral right to no-fault divorce to Muslim women in order to escape unhappy marriages? The straightforward answer is no. Both the Indian judiciary and legislature have not yet given Muslim women this right, even though their counterparts in a number of Muslim countries have acquired this right more than five decades ago. In neighboring Bangladesh and Pakistan, Muslim women have had this right since 1967 when the Supreme Court of Pakistan acknowledged the no-fault based unilateral right of wives to divorce their husbands on the basis of the principle of gender equality in Khurshid Bibi v Baboo Muhammad Amin PLD 1967 SC 97.

In conclusion, the Muslim Women (Protection of Rights on Marriage) Act, 2019, should be called the Criminalization of Triple Ṭalāq Act, 2019, because penalization of triple ṭalāq is the only contribution this Act makes to existing legal provisions. The protection of the rights of married Muslim women, however, is likely to take more time and legislative effort.

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Marriage as Children’s Play: Unregistered Islamic Marriages under English Law

 That marriage creates certain rights and obligations goes without saying. The legal definition of marriage, however, remains contentious, especially in multicultural, religiously diverse and legally pluralistic states and societies where legal and religious definitions of marriage may differ. The complexity of the issue is exacerbated when courts have to balance private and public interests while adjudicating matrimonial disputes.

The ostensible simplicity but legal complexity of marriage is depicted in the case of Ms Nasreen Akhtar. When she was getting married in 1998, she could have hardly imagined that her marriage would be subjected to judicial scrutiny twenty years later. Her husband, Mr Khan had promised her that the religious ceremony of their wedding would be followed by a civil ceremony as required by English law. Such ceremony, however, did not take place even after the lapse of two decades during which four children were born to them. When their relationship broke down, Ms Akhtar filed a suit for divorce to secure her financial rights. Mr Khan defended the suit on the basis that their unregistered nikāḥ ceremony was not a valid marriage under English law. In her reply, she contended that her unregistered nikāḥ was a valid marriage based on the presumption of marriage arising out of cohabitation and reputation as spouse. The Family Division of the High Court, however, did not accept Ms Akhtar’s argument and held that her unregistered religious marriage was void under English law.

This would normally be the end of the matter but, in this case, the Court granted Ms Khan financial remedies despite rejecting her argument as to the validity of her marriage. This was so because English family law recognizes financial rights of parties even when their marriage is declared void for disregarding legal requirements. Such marriage does not confer all the rights of a valid marriage, which include status of spouse resulting in tax benefits and proprietary entitlement to pensions and inheritance. This is an advantageous aspect of English family law as it does not punish people who inadvertently fail to comply with the procedural requirements of the law. This benefit, however, is not extended to couples who exchange their vows to live together as spouses in a religious ceremony or who simply cohabit. Their relationship may give rise to certain legal rights or obligations under English law of contracts, property or trusts, but English family law does not recognize their “marriage”, not even as a “void marriage.” The judges have coined the term “non-marriage” for such relationships which do not have any legal consequences, which they likened to wedding ceremonies in a soap opera or in a children’s play.[1] Therefore, when Justice Williams of the Family Division of the High Court declared that Ms Akhtar was entitled to financial rights under her void marriage, it was a deviation from established legal principles.[2] Press coverage described this judgment as “recognition of sharia law” under the English legal system.[3]

Given the public importance of this judgment, the Attorney General challenged it before the Court of Appeal. The Court accepted the appeal and held that an unregistered religious ceremony of marriage was “a non-qualifying ceremony” with no legal consequences at all. In their unanimous judgment, three judges of the Court made it absolutely clear that statutory English law supersedes all other norms based on private agreements, social practices or religious ceremonies. They justified this view by holding that the marital status of individuals is important not only for them, but also for the state because marriage creates a variety of rights. As the main objective of state regulation of marriage is to ensure certainty of these rights, legal formalities for the registration of marriages should not be taken lightly and must be strictly followed.

The Court regarded the registration of marriage a matter of “public interest” and rejected the argument that the strict legal requirements of marriage registration could be softened, either through the application of the principles of equity or human rights law. In his judgment, Justice Williams referred to two equitable maxims: “equity treats as done what ought to be done”; and “equity focuses on intent not form.” He also referred to the relevant provisions of human rights law which included: Article 8 (right to respect for private and family life) or Article 12 (right to marry), of the European Convention on Human Rights, and Article 1 (right to peaceful enjoyment of property) of the First Protocol to the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.

The judgment of the Court of Appeal in this case is symptomatic of the inadequacy of statutory English family law to meet the needs and requirements of a culturally and religiously diverse society in contemporary England and Wales. While state enforced law has accommodated the religious marriage of Christians and Jews,[4] it still regards similar marriage ceremonies of other religious communities such as Muslims, Hindus and Sikhs as “non-marriage.” The judges of the Court of Appeal realised the inappropriateness of the term “non-marriage” and suggested that the legal consequences of unregistered religious marriages should be described as “non-qualifying ceremony”. They, however, fell short of analyzing the current legal framework on unregistered religious marriages under Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

In this judgment, the Court of Appeal has dashed the hopes of women’s rights activists who were encouraged by a gender egalitarian and flexible interpretation of statutory law in various recent judgments.[5] Such strict interpretation was clearly and boldly manifested in the judgment of Justice Williams of the Family Division of the High Court in Ms Akhtar’s case.[6] By strictly interpreting the relevant legal provisions, the judges of the Court of Appeal appear to have operated under the mistaken assumption that couples who did not register their marriages under the law and thus “knowingly and willfully” flouted the law, want to have “more rights” than the ones who complied with the law.[7] While making this argument, the judges seem to have conflated the distinction between a valid marriage and a void marriage in order to distinguish these types of marriages from the so-called “non-marriages”—a dubious category with no basis in statutory law.[8] In doing so, the judges rejected the opinion of Justice Williams that courts should take a holistic view of marriage as a process rather than a single ceremony by taking into account the intentions of the parties and surrounding circumstances.

This judgment has clarified that for a marriage to have legal effect under English law, parties should go beyond voluntary exchanges of consent to solemnize their union in public—the essence or hallmark of a marriage. In light of this judgment, such voluntary exchanges of consent are not sufficient to create a legal relationship of marriage. To enter into a legally recognizable marriage, the parties need to follow certain formalities of the law by either giving notice or marrying in a place authorised for marriage. Otherwise, their marriage ceremony will be nothing but a children’s play.

Notes:

[1] Nasreen Akhter v. Mohammad Shabaz Khan [2018] EWFC 5 at para. 45.

[2] A.M. v. A.M. [2001] 2 FLR 6; Gandhi v. Patel [2002] 1 FLR 603; El Gamal v. Al-Maktoum [2012] 2 FLR 387; Al-Saedy v. Musawi [2011] 2 FLR 287; Dukali v. Lamrani [2012] EWHC 1748 (Fam.), [2012] 2 FLR 1099; Sharbatly v. Shagroon [2012] EWCA Civ. 1507, [2013] 1 FLR 1493.

[3] Kate McCann, British court recognises sharia law in landmark divorce case, The Telegraph (Aug. 1, 2018), https://www.telegraph.co.uk/news/2018/08/01/british-court-recognises-sharia-law-landmark-divorce-case/.

[4] In Gereis v. Yagoub [1997] 1 FLR 854 a purported ceremony of marriage at a Coptic Orthodox Church, unlicensed under the marriage Act 1949, was held to be a void marriage because it “bore the hallmarks of an ordinary Christian marriage and both parties treated it as such.”

[5] In Asaad v. Kurter [2013] EWHC 3852 (Fam.), [2014] 2 FLR 833, the judge described the religious ceremony of nikāh as “not ‘so deficient’ that it can be described in English law terms as a ‘non-marriage.’” In MA v. JA [2012] EWHC 2219 (Fam.), [2013] 2 FLR 68, the judge upheld as valid a marriage performed in a registered mosque though the parties did not give a notice to the registrar and as a result no marriage certificate was issued.

[6] Nasreen Akhter v. Mohammad Shabaz Khan [2018] EWFC 5.

[7] Id. at para. 45.

[8] In Hudson v Leigh [2009] EWHC 1306 (Fam), [2009] 2 FLR 1129, despite finding as void under the South African law the religious ceremony of a Christian marriage which was planned to be followed by a civil ceremony in London, the judge declared it as non-marriage under English law. Valentine Le Grice QC, ‘A Critique of Non-Marriage’ [2013] Fam Law 1278 (arguing that statutory law does not give the court power to declare a ceremony as a “non-marriage”).

First published at the Harvard Law School's Islamic Law Blog