Legal System of Egypt

In the last 100 years, the Egyptian Legal System provided the model for many other nations in the Middle East. Article 2 of the 2014 Egyptian Constitution states that Islam is the religion of the state and that the principles of shari’a are the main source of legislation. Article 3 states that “The principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders”. Article 93 states that “The State shall be bound by the international human rights agreements, covenants and conventions ratified by Egypt, and which shall have the force of law after publication in accordance with the prescribed conditions.”

Egypt’s legal system, legal profession and judiciary are relatively well respected in the Arab world. Many lawyers who are trained in Egypt, staff law firms across the richer gulf countries and beyond although standards of education of both lawyers and judges has been in decline as the numbers educated has increased exponentially in recent decades.[1] The senior judiciary in Egypt has in recent decades been noted for its attempts at professionalism and independence from the state.[2] However the speed of the justice system in Egypt has been the subject of criticism for many years. Criminal cases take on average 4 years to complete and civil cases can regularly take a decade.[3] A first instance decision in the family court can take between 12 to 18 months. A very large number of first instance decisions go to appeal and there are many more re-hearings than in e.g. the English court system.

[1]See Amr Shalakany, “‘I Heard it all Before’: Egyptian Tales of Law and Development,” Third World Quarterly 27, No. 5 (2006): 833-853

[2]See in particular the work of Nathan J Brown includingThe Rule of Law in the Arab World: Courts in Egypt and the Arab States of the Gulf (Cambridge University Press, 1997)

[3]Risley, D, Egypt’s Judiciary, Middle East Institute, 13 January 2016

Family Law in Syria

The 1953 Syrian Law of Personal Status (SLPS) is a comprehensive Code that modifies and regulates many aspects of shari’a. Article 305 of SLPS directs that the residuary source of law is the most authoritative doctrine of Hanafi school of law of Sunni Islam.

Family law for Muslims in Syria is administered by judges sitting in the shari’a personal status courts. Although shari’a court judges administer
family law, they are not religious clerics trained in Islamic jurisprudence. Rather, they are appointed in the same way as other judges working within the courts of general jurisdiction, and they require a law degree, amongst other qualifications.

The Legal System of Syria

The rule of law in Syria is somewhat geographically dependent. Syria is not a fully functioning state. It has been in a state of civil war since 2011. Parts of Syria are outside of central government control and the justice system has collapsed in parts of the country.

Article 3 of the 2012 constitution states that Islamic jurisprudence shall be a major source of legislation. As throughout the Middle East, the influence of shari’a has always been particularly strongest in family and inheritance law matters. However in practice the Syrian legal system, including in the area of family law, is a largely codified civil law system on the French / Egyptian model.

Family Law in Lebanon

Article 9 of the 1926 Lebanese Constitution guarantees that the personal status and religious interests of the people are respected, whatever religious sect they belong to. Decree 60 L.R. (13 March 1936) of the French High Commissioner, who also exercised the duties of the legislative authority during the French mandate in Lebanon, granted the recognized religious denominations in Lebanon the right to administer their own affairs and the right to legislate and pass judgement in respect of issues of personal status, with the limits of the Constitution, existing legislation and the rules of public order. Article 2 of the Lebanese law on Personal Status (3 April 1951) expressly stipulates that “denominational jurisdictions have authority (concerning matters of): marriage contract, its conditions and marital obligations as well as the validity or non-validity of the marriage…..”. This includes child custody.

Matters related to personal status (inheritance, marriage, divorce and child custody) are governed by a separate set of laws designed for each of the different sectarian communities and those laws are administered either by a separate judicial tribunal system or by a combination of a community based system with the national civil system. Although most sectarian communities in Lebanon have adopted a specific personal status code, the examination of the substance of the laws is further complicated by the fact that even where such a code exists, additional sources of laws and foreign legal opinions are considered. For example, the various Christian personal status laws are not limited to the relevant personal status code but also include the canon law of each church, the Bible, apostolic writings, resolutions of the general or local synods, and edicts issued by the patriarchs. In addition, legal opinions in Christian courts are not limited to those issued by Lebanese ecclesiastical courts, but include those issued by high foreign religious tribunals.

In Lebanon, disputes about the application of law by different religious courts can be determined by the civil courts but there is no (non religious) civil personal status jurisdiction in Lebanon. Where parties have only married abroad, the Lebanese courts can apply the foreign law rules to personal status disputes. From time to time, suggestions have been made to reform the sectarian / confessional personal status system – usually involving as a bare minimum at least a choice of a civil (non religious) marriage but efforts at legal reform have failed thus far.

Legal System of Lebanon

Most of the legal system of Lebanon is based on that of France, the former mandatory power until 1943. Lebanon gradually emerged from the French mandate granted by the League of Nations to France after the break-up of the Ottoman Empire in the wake of World War One. Lebanon is considered to be a civil law country and much of the law is codified. Precedent is however influential and cases of higher courts are cited in argument before the lower courts. Personal status matters are determined differently for each of the many different recognised religious communities.

In periods of Lebanon’s history the power of the central state has been very weak, however the ‘rule of law’ has historically been strong within the remit of each sectarian community.

Family Law in Pakistan

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