Personal Status (i.e. Family and Inheritance) law in Pakistan is primarily governed by Islamic law for Muslims. However laws such as the The Guardian & Wards Act 1890; Dissolution of Muslim Marriages Act 1939; and the Muslim Family Laws Ordinance 1961 introduced some (primarily procedural) reforms and there are a number of other statutory provisions which have sought to exercise some control over certain areas of family law.
Legal System of Pakistan
Pakistan achieved independence from the Crown in 1947 and at the same time was partitioned from India. The legal system in Pakistan is based on English common law; pre- and post- Independence/Partition Statutes; and Islamic law.
The Constitution of Pakistan provides that all laws be brought into consonance with the Qur’an and sunnah (the practice of the Prophet Muhammad). The Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court have a remit to examine any law that may be repugnant to the “injunctions of Islam, as laid down in the Qur’an and the sunnah.” The process of ‘Islamisation’ has been relatively steady in recent decades and has widespread, although not universal, popular support.
The impact of the process of Islamisation is that there can sometimes be some doubt as to what the law is in relation to any particular question. Where traditional ‘shari’a’ law is in conflict with statutory provisions, there can be a contest as to which set of rules prevails.
As referred to above there can also be a contest within the shari’a between different schools of law as to which principles will apply. The Hanafi school has traditionally been adhered to in Pakistan, however during the process of Islamisation, principles have been derived from all schools of law.
Islamic Law
Islamic law (shari’a) is:
. . . an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing ordinances regarding worship and ritual, as well as political and (in the narrow sense) legal rules.”[1]
It consists of the express injunctions of the Qu’ran, the practice of the Prophet (sunnah)and the opinions of jurists.
Within Islam there are a number of schools of law with different interpretations of aspects of the law and within and between those schools there can be different ways of interpreting the basic texts. However there are a number of fundamentals common to most or all schools.
In nearly all Muslim countries, areas such as criminal, civil, commercial and labour law have been codified. In many but not all Muslim countries family law has either been codified and / or legislative amendments or reforms have been made to the ‘classical’ Islamic law.
[1]Joseph Schacht, An Introduction to Islamic Law (Oxford University Press, 1964), p. 1
Family Law in the Kurdistan Region of Iraq
The most important family law in Iraq is the Personal Status Code[1], Law No. 188 of 1959[2] which regulates custody disputes and which has effect in the Kurdistan Region, subject to any Kurdish post 1991 amendments. Kurdish Law No. 24 of 2005 and in particular Kurdish Law No. 15 of 2008 made substantial amendments to the 1959 Personal Status Code.
[1]some non-Muslim communities in Iraq have special provisions and courts which apply only to them. Muslims are dealt with under the Personal Status Code, whether Sunni or Shia
[2]as amended by Law No. 11 of 1963 and Law No. 106 of 1987
Legal System of the Kurdistan Region of Iraq
The Kurdistan Region’s legal system is based on the same model as the Iraqi legal system and the structure of the Kurdistan Regional court and judicial system closely follows that of the Iraqi Federal judiciary. Kurdish Decree No. 11 of August 1992 and the Kurdish Judicial Authority Law No. 44 of December 1992[1] (now superseded by Kurdish Law No. 23 of 2007) established the judiciary in the region as autonomous and independent of the Kurdistan Regional Government. The Courts pronounce judgment in the name of the people of Iraqi Kurdistan and have authority over all people, including the members of the Kurdistan Regional Government.
The Kurdistan Region Courts apply the laws made by the Kurdistan Parliament (formerly National Assembly of Kurdistan) since 1992; and the laws of Iraq as they existed as at 1991 unless subsequently repealed or amended by the Kurdistan Parliament. Save (at least in theory) for laws relating to the exclusive federal powers as listed in Article 110 of the 2005 Iraqi Constitution (which does not include personal status / family law or criminal law), post 1992 new legislation and amendments to existing legislation originating from Baghdad are not recognised as applicable in the Kurdistan Region of Iraq unless expressly endorsed by legislation of the Kurdistan Parliament. This includes the Coalition Provisional Authority orders issued during the occupation of 2003 / 2004[2]. The Kurdish Judicial Authority Law No. 44 of December 1992[3] (now contained in Kurdish Law No. 23 of 2007) also established a Cassation Court for the Kurdistan Region. At the next level down, there are appeal districts in Erbil, Dohuk and Suleiymaniye and below those Courts of Appeal are the 1stinstance / personal status courts. The Kurdish Judicial Council, headed by the Kurdish Chief Justice, is independent of the executive and independent of the Federal Iraqi Higher Judicial Council. Theoretically the Federal Supreme Court in Baghdad has authority to determine disputes between the Kurdistan Region and the Federal Government.
The Kurdish judiciary is in the process of establishing itself as a respected, independent force. A Kurdish Regional judicial training college was opened in 2012. The American Bar Association published a Judicial Reform Index for the Kurdistan Region in 2006 which did express some concerns about the independence of the judiciary but this was prior to implementation of Law No. 23 of 2007 which attempted to institutionalise independence from the executive. A more substantial practical problem is posed by the fact that the bulk of the legislation (including all of the old Iraqi Codes) are in Arabic rather than Kurdish – the everyday language of the Kurdish people.
[1]as amended by Law No. 2 of 1994
[2]despite the wording of Articles 26 and 54(B) of the 2004 Transitional Administrative Law
[3]as amended by Law No. 2 of 1994
Legal System of Iraq
The Federal Iraqi legal system is a civil law system on the Egyptian/French model comprising the ordinary civil, labour, personal status and criminal courts. Unlike some other countries in the region, there is no separate shari’a based system. Family law (personal status law) is administered within the ordinary court system.
Civil disputes are largely regulated by the Civil Code, Law No 40 of 1951 and where relevant the Commercial Code No. 30 of 1984 and civil procedure and evidence is regulated by the Civil Procedure and Actions Law No. 83 of 1969 as amended by the Civil Evidence Law No. 107 of Year 1979. The system is inquisitorial and judge led rather than adversarial. The Iraqi legal system does not operate a system of precedent whereby decisions of higher courts must be followed by lower courts. However higher court decisions can be given a certain amount of weight by lower courts in determining disputes before them. The appellate system for civil cases provides for an appeal from the Court of First Instance to the Court of Appeal and from there to the Court of Cassation. Some administrative decisions can be challenged before the Shura Council which is part of the Ministry of Justice – rather than being part of the federal judicial structure.
Article 2 of the Iraqi Constitution states:
“First:Islam is the official religion of the State and is a foundation source of legislation:
- No law may be enacted that contradicts the established provisions of Islam
- No law may be enacted that contradicts the principles of democracy.
C. No law may be enacted that contradicts the rights and basic freedoms stipulated in this Constitution.
Second:This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans.”
Many resources relating to Iraqi Law can be found at http://gjpi.org a resource hosted by the University of Utah S. J. Quinney College of Law.
Adoption and kafala in Islam
Islamic law does not recognise adoption as such in that it prohibits the legal fiction that a child becomes the child of the adoptive parents. There is a specific injunction in the Qur’an which states:
…Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers; that is juster in the sight of Allah. But if you know not their father’s (names, call them) your brothers in faith, or your trustees. But there is no blame on you if you make a mistake therein. (What counts is) the intention of your hearts. And Allah is Oft-Returning, Most Merciful.
(Qur’an 33:4-5)
Kafala is a concept of Islamic law meaning the long term fostering of a child without the right to kinship. While kafala results in placing the child securely with a caring family, it does not allow the actual adoption of a child and a change e.g. in his/her inheritance rights.
The English courts have dealt with kafala arrangements – in the context of Jordan (In the Matter of the Adoption Act and in the Matter of J [2002] EWHC 766 (Fam) Fam Div); and Egypt (Z (A Child) (English Adoption: Egyptian Orphan), [2016] EWHC 2963 (Fam). The European Court of Human Rights dealt with an Algerian kafala case in Harroudj v France (43631/09) and a Moroccan case in Chbibi Loudoudi v Belgium(52265/10).
UN Convention on the Rights of the Child
Most nations are signatories to the UN Convention on the Rights of the Child (CRC) which states in Article 3:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 20 of the CRC states:
Article 20
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalahof Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
Andrew Allen QC: Middle Eastern Law Expert Blog
This blog seeks to provide a very basic outline guide to the legal systems in what is very broadly defined as the Middle East (including North Africa, Iran, Pakistan and Afghanistan). I will start with Family Law and then cover other areas of law in the future. I hope that such a shared resource can provide an introduction to some of those legal systems and may point some in the direction of further study. Andrew Allen
Andrew Allen QC acts as an expert witness in Middle Eastern Law. He is based at Outer Temple Chambers, London and his work has included reports on the laws of Pakistan, Bangladesh, Sudan, Saudi Arabia, Somalia, Egypt, Lebanon, Jordan, United Arab Emirates (Dubai, Abu Dhabi, Sharjah, Ras Al Khaimah, Ajman, Fujairah and Umm Al Quwain), Syria, Algeria, Yemen, Oman, Morocco, Tunisia, Libya, Algeria, Iran and Iraq (including Kurdistan Region). Expert report subject matters include questions relating to adoption, kafala, child custody and contact, abortion, marriage, divorce and inheritance.
Andrew Allen QC was called to the bar in 1995 and was appointed as Queen’s Counsel in 2020. He holds an MA in Law from Christ’s College, Cambridge (1992); an LLM (1994) in Middle Eastern Law from the School of Oriental and African Studies, University of London; and an MSc in Sociology from Birkbeck College, University of London (2014).
Family Law in Algeria
Family law in Algeria is governed by the 1984 Family Code. The provisions of the 1984 Code are drawn from various schools of law, a draft Algerian code of Muslim law formulated by a commission in 1916 during French rule, and parallel legislation from neighbouring countries (particularly Moroccan enactments). It is primarily rooted in shari’a principles. Article 222 of the Code specifies the shari’a as the residuary source of law, thus allowing for selection of appropriate interpretations from any school of law or directly from the original sources of law (Qur’an and sunnah) or from secondary sources. Women make up 70% of the country’s lawyers and 60% of its judges.
The 1984 Code has been subject to revision, in particular in 2005. Procedure in the Family Courts is regulated by the 2009 Code of Civil and Administrative Procedure – in particular in relation to family cases in Book 2, Title 2, Chapter 1.
An unofficial translation of the Algerian Family Code provided by the British Embassy, Algiers is available at https://www.gov.uk/government/publications/algerian-family-code
Andrew Allen QC 