SHARIAsource

This is a draft report of the Somali Criminal Law Recodification Initiative, which includes, in Volume I, the text of the draft penal code, and in Volume II, a commentary on the draft code.

In its Grand Chamber decision, the European Court of Human Rights (the "Court") held that a French law dating back to 2010, which prohibits the concealment of one's face in public spaces, does not violate the European Convention of Human Rights (the "Convention").  The law was understood by many to have been aimed at women of the Islamic faith who choose to wear face-concealing attire, including the niqab (face veil) and the burqa.  The applicant in the case, a French born Muslim woman who wears the niqab and burqa, alleged that the law impermissibly infringed on her right to privacy, religious freedom, and her right to be free from government discrimination.  The Court disagreed, taking notice of its earlier jurisprudence that the public manifestation of religion -- as opposed to the right to hold a religious belief -- was not immune from government regulation.  It further noted its doctrine of "margin of appreciation," granting governments considerable leeway in their regulation of public manifestations of religion.  It then held, under its proportionality analysis, that the French government's contention that the law was justified on national security grounds was without merit.  However, the Court held that the government's contention that the law was justified via the aim of ensuring that citizens would be imbued with a sense of "living together" had merit.  The Court thus found no incompatibility between the law and the Convention.  Some of the dissenting opinions in the case took issue with the Court's privacy and "living together" analysis, reasoning that the right to privacy included one's right to willingly withdraw from public life or partake in it in ways that would minimize social interaction.

In its judgment dated December 15, 2023, a majority of the Supreme Court of Pakistan upheld various provisions of the Supreme Court Act of 2023 as constitutional. The majority rejected arguments that the Act sought to interfere with the Court's independence and exclusive jurisdiction over its own affairs and internal organization. Certain provisions of the Act constrain the power of the Chief Justice and provide certain guarantees that some cases need to be heard by a committee of justices as opposed to a single justice or only a few of them. Most importantly, the Court, in upholding the Act, rejected the Chief Justice's power as the so-called "Master of the Roster." Previously, under that power, the Chief Justice had the ability to constitute benches, that is, appoint individual justices of his choosing, who then heard specific cases. Rejecting that power, the Court ruled that the "Master of the Roster" power was alien to the Constitution of Pakistan. Further, the Court noted that the word "master" was offensive and un-Islamic, writing that "Islam establishes the principle of equality . . . ."

The Kerala High Court ruled: "The Quranic verse relating to khula found in Chapter 2, verse 229, in unequivocal terms, declares that a Muslim wife has the right to terminate her marriage."

In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.

The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended."  The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends.