SHARIAsource

This indictment relates to a case involving a defendant with the initials AM who was accused of committing khalwat (being in a close proximity with a man unrelated to her by blood or marriage) and ikhtilath (physical intimacy between an unmarried man and woman). Her neighbors found her to be in close proximity in her home with a man, RS. AM insisted that RS was, in fact, her legitimate husband and that they were married by way of nikah dibawah tangan, a marriage officiated by a local imam and not registered in the civil registry. The prosecutor rejected the legitimacy of her marriage with RS by claiming that such unregistered marriage violated the Indonesian Marriage Law of 1974. Accordingly, AM’s act of being in close proximity with RS was considered unlawful.

Two accused persons, both previously married to other persons, were charged with the crime of committing zinā (fornication), which is prohibited in the Islamic Penal Code of Sokoto State, Nigeria. The man denied the charge and declared his innocence in court. The woman admitted to having sexual intercourse with the accused man and to being pregnant as a result. The Court held that the crime of zinā (fornication) is proved by a valid confession, the evidence of four witnesses, or by pregnancy outside of marriage. Because the first accused person denied that he had made an earlier confession, a confession could only be verified by the testimony of four witnesses. Because only two witnesses had given such testimony, the confession was not valid. The Court also held that retraction of a confession is permissible. Therefore, even if the first accused, the man, had earlier confessed, his denial of the charge in court amounted to a valid retraction of the confession. The Court convicted the second accused person, the woman, on the basis of her in-court confession and sentenced her to death by stoning after childbirth and weaning. The woman successfully appealed her conviction.

This case is an appeal of a zinā (fornication) conviction by the Upper Sharīʿa Court of Gwadabawa, Nigeria, on several grounds, including: the trial court's lack of jurisdiction on the grounds that the Sharīʿa Penal Code upon which the appellant's trial and conviction was based came into existence after the alleged commission of the offense, and the failure of the trial court to explain the nature of the crime to the accused person. During the proceedings, the Appellant's counsel retracted the confession that the appellant had made to the trial court. The Court held that a person cannot be punished for an offense not known to law at the time of commission. The Court further determined that, because the Sharīʿa Penal Law of Sokoto State had not been enacted at the time the offense was committed, the conviction was invalid. Furthermore, it determined that the confession of the Appellant before the trial court was invalid due to the defects in the charge and the failure to explain the offense to the Appellant. Even if the confession had been valid, its retraction upon appeal was valid because retraction of confession is valid at any time before judgment. Pregnancy by a divorced or widowed woman is not conclusive proof of zinā where such pregnancy occurs within 5-6 years of the previous marriage. It is an overriding principle (according to the doubt canon) that where doubt exists, fixed criminal penalties (ḥadd penalties) should be avoided. The Court quashed the conviction.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

Petitioner Muneer Awad sued defendant members of the Oklahoma Election Board seeking to prevent certification of election results of a proposed state constitutional amendment that would have prevented Oklahoma state courts from considering or using "Sharia Law." The Petitioner claimed this state constitutional amendment would have violated his federal constitutional First Amendment rights and sought a preliminary injunction. The Appellate Court determined that the Petitioner asserted the kind of direct injury-in-fact necessary to create First Amendment Establishment Clause standing. Specifically, the Appellate Court determined that because the amendment would have been certified a week after it was passed, the injury was imminent and not conjectural or hypothetical. The Appellate Court also found that the proposed amendment violated the Establishment Clause because it discriminated among religions, and was therefore subject to strict scrutiny. The Appellate Court ruled that the proposed amendment could not pass the strict scrutiny standard because the Oklahoma Election Board could not prove that the amendment was enacted to provide a compelling state interest, and therefore could not prove that the amendment was not “closely fitted” to that interest.

On July 28, 1958, the colonial government of the Northern Region of Nigeria appointed a panel of jurists to examine the multiple systems of law existing in the region and to make recommendations for avoiding conflict among those plural systems. The multiple systems of law were English common law, British colonial statutory law, customary law, and Islamic law. The product of the panel’s deliberations was the Penal Code of 1960. This Penal Code abrogated the application of the sharīʿa to criminal mattes and abolished the judicial powers of the Islamic rulers. The Penal Code was based on the Sudan Penal Code of 1899, which had been enacted by the British colonial government. The Sudan Penal Code was itself derived from the Indian Penal Code, 1834. This document is the report of the Panel of Jurists.

According to the Penal Code of 1960, criminal laws purportedly based on sharīʿa ceased to exist in Northern Nigeria. In 2000, twelve states of Northern Nigeria sought to reintroduce Islamic criminal law, which had been partially in place prior to the 1960 law reforms. In pursuit of its vision to restore Islamic criminal law, the government of Bauchi state in Northern Nigeria set up a “Sharia Implementation Committee.” The Committee was charged with examining the legality and constitutionality of the proposed laws, inquiring into public opinion, and educating members of the public. To carry out this task, the Committee consulted Muslim jurists, state-trained lawyers, legal academics, and members of the public. This volume of Philip Ostien’s Sharīʿa Implementation Sourcebook contains the report of the Committee.

According to the Penal Code of 1960, criminal laws purportedly based on sharīʿa ceased to exist in Northern Nigeria. In 2000, twelve states of Northern Nigeria sought to reintroduce Islamic criminal law, which had been partially in place prior to the 1960 law reforms. In reintroducing Islamic criminal law, eleven of the states enacted new penal codes, which now exist side by side with the old penal code. The twelfth state, Niger State, amended the old penal code. This is the text of the Niger State Penal Code Amendment.

In this indictment, MS and MA were found sitting together in a shack in Keudah Station, Banda Aceh. Both of them were planning to go to a concert together but decided to stop by Keudah Station before heading to the concert. Suspicious of their act, the witness named Efriyadi approached MS and MA asking the nature of their gathering. MS and MA insisted that they were only sitting around without any intention to do more than that. Failing to show their marriage certificate on the scene, Efriyadi called the sharīʿa police.

After investigating the case, the prosecutor indicted them for committing khalwat (close proximity between an unmarried man and woman) which violates Aceh Qanun No. 6 of 2014 article 23 (1). Pursuant to this law, the prosecutor demanded both MS and MA to be punished with eight public lashes.

Evidence presented by the prosecutor:

• One pair of jeans
• One blouse
• A pillow
• Blue tarpaulin

MS and MA were found sitting together in a shack in Keudah Station, Banda Aceh. Both of them were planning to go to a concert together but decided to stop by Keudah Station before heading to the concert. Suspicious of their act, the witness named Efriyadi approached Marzuki and Marlina asking the nature of their gathering. MA and MA insisted that they were only sitting around without any intention to do more than that. Failing to show their marriage certificate on the scene, Efriyadi called the sharīʿa police.

In response to the indictment of the prosecutor on the case of MS and MA, the judge ruled against the defendants and pronounced both of them guilty of khalwat (close proximity between an unmarried man and woman). For this, both defendants are to be punished with seven public lashes.

Evidence used in the court:

• One pair of jeans
• One blouse
• A pillow
• Blue tarpaulin

This suit filed before the High Court of Borno State, Nigeria, centered on the question of whether the Borno State legislature can constitutionally extend the jurisdiction of the Sharīʿa Court of Appeal beyond questions of Islamic personal law to other civil and criminal matters. The Court answered in the negative. Because the jurisdiction of the High Court and the Sharia Courts of Appeal is regulated by the Constitution, the Court determined that varying its jurisdiction would require an amendment of the Constitution rather than mere legislation.

The jurisdictional question that formed the basis of this appeal arose out of a paternity suit. In this appeal, the Court of Appeal of Nigeria considered the legality of the establishment of sharia courts in Borno State by the Borno State Sharia Administration of Justice Law (No. 11) of 2000. The Court concluded that the sharia courts were validly established in Borno.

The Sharia Court, Mariga, Nigeria convicted the Appellant for the offense of house trespass and theft under the Penal Code of Nigeria. The Appellant brought this appeal before the High Court of Niger State, challenging his conviction on the basis that the Sharia Court’s jurisdiction was limited to Islamic law and did not extend to the Penal Code, which is based on Common Law. The High Court allowed the appeal and quashed the conviction.

The police raided Remita Sinaga's house in early 2016 where they found 70 bottles of alcohol. Subsequently, the prosecutor indicted her for selling alcohol to her neighbors, a criminal act punishable with up to 30 public lashes under the Acehnese Qanun Jinayat. The prosecutor demanded for her to be punished in the form of 6 lashes in public but the court decided to punish her with 30 lashes. Sinaga became the first non-Muslim who was prosecuted and punished under the Acehnese Islamic criminal law.

The respondent was charged before the High Court of Kano State for the offense of homicide under the Kano State Sharia Penal Code Law 2000. Arguing that only sharīʿa courts are competent to try offenses arising under the Sharia Penal Code, the respondent challenged the jurisdiction of the High Court to hear the matter. The Court held that it was competent to apply the Sharia Penal Code. Therefore, the jurisdictional challenge failed.

The Appellant challenged his criminal conviction by the Sharia Court of Appeal of Zamfara State, Nigeria on the ground that the Court’s jurisdiction did not extend beyond Islamic personal law [family law]. The Court of Appeal held that the jurisdiction of the Sharia Court of Appeal was limited to personal law. As such, it could not validly exercise criminal jurisdiction. The Court quashed the conviction.

In the book Ijhāḍ: Aḥkāmuh wa-ḥudūduh fī al-sharīʿa al-Islāmiya waʾl-qānūn al-waḍʿī [Abortion: Related Islamic Rulings and Limitations in Islamic Law and in Modern Law] Muḥammad Ḥasan al-Nujaymī discusses the regulations and prohibitions surrounding abortion in Islamic law.

A Maryland court ruled that Sharīʿa Court lacked jurisdiction in a custody case since the couple never resided in the jurisdiction of the Sharīʿa Court.