ANR ELIPS – Equality and Law in Personal Status

Ce projet est porté par Baudouin Dupret, directeur de recherche CNRS à LAM, Jean-Louis Halpérin, professeur à l’Ecole normale supérieure et directeur du Centre de Théorie et Analyse du Droit (CTAD-UMR 7074) et Nathalie Bernard-Maugiron, directrice de recherche à l’Institut de recherche pour le développement (IRD –CEPED).

ELIPS débute en octobre 2021 pour une durée de 4 ans.

Objectives and research hypothesis

This project investigates the evolution of legal systems recognizing a variety of personal-status laws for their citizens and the tensions involved by these diverse family laws with the principle of equality. More than two dozens of countries in Asia and Africa are characterized by a multiplicity of personal-status laws, the best known being Lebanon, Israel, India, Senegal, and Cameroon. In these countries, the rules concerning marriage, affiliation and succession rights are not unified, but applied diversely to the citizens according to their official religious belonging. For instance, in Lebanon, 18 religious communities (12 Christian, 5 Muslim, 1 Jewish) are recognized and each of them has its own personal-status law and confessional judges. In Israel, 14 religious communities (Jewish, Muslim, Druze, 10 Christian communities, Baha’i) are recognized and most of them have religious courts. In India, five personal-status laws exist for Hindus, Muslims, Christians, Parsis, and Jews.

The configurations of this plurality of family laws are diverse: in Egypt, the law of marriage is not the same for Muslims and for Copts, but succession rights are unified; on the contrary, in Indonesia there is a law of marriage common to all citizens, an optional law for Muslims, while three different sets of rules exist for succession rights. Some countries recognizing a variety of personal status laws have unified and secularized their judiciary (ex. Egypt), while others continue to refer family law disputes to religious courts (ex. Syria, Lebanon). Most of these laws do not allow inheritance between Muslims and non-Muslims.

All these countries know the principle of equality of citizens before the law that has become a common standard in all constitutions and in international law, with the UN Covenant on Civil and Political Rights and the Convention on the Elimination of all Forms of Discrimination against Women. In all of them, though, the positive law based on this principle of equality does not seem to be contradicted by the differential treatment in family law of persons belonging to different categories. Some constitutions (as art. 8.5 of the 1957 Constitution of Malaysia or art. 12.3 of the 1965 Constitution of Singapore) even contain an article providing that the principle of equality “does not invalidate or prohibit any provision regulating personal law”. In Africa, several constitutions (from the 1966 Constitution of Botswana to the 1980 Constitution of Zimbabwe, as amended in 2005) include an article banning all discriminatory provisions in law but provide an exception “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”. The existence of such a provision implicates somehow the recognition that there is an issue at stake.

Our first findings show that, after a long period of time (beginning in the colonial era) characterized by the denial of any opposition between the principle of equality (as settled in positive law) and the plurality of family laws, more and more conflicts are breaking out today in several of these Asian and African countries (at the level of both the making and the application of the law) about their compatibility.

Our hypotheses concern 1) the different factors triggering these tensions, like legal innovations promoted through judicial activism or political situations characterized by clashes between a nationalist movement favouring the dominant personal-status law and “resistance” from the “dominated” minority; 2) the scope of changes in the ways personal-status laws are conceived and applied by judges, lawyers and non-lawyers.

In order to investigate this issue, we have identified six countries (Cameroon, Egypt, India, Indonesia, Lebanon and Tanzania) where recent judgments show the development of new tensions between personal-status laws and the principle of equality. The objectives of the research are 1) to analyse all the legal aspects and socio-political backgrounds of these cases and the rulings related to them; 2) to identify the relationships between these cases and the mobilisations against or in favour of a diversity of personal-status law; 3) to compare the situation between countries in which the recognition of a plurality of personal-status laws is conflictual with other countries in which it is not.

Position of the project as it relates to the state of the art

Only one book of comparative law deals comprehensively with Asian and African countries (Menski, 2006) and there is no general study on the diversity of family laws in Asia and Africa (Sezgin, 2013 compares Israel, Lebanon and India; Tobich, 2015 considers only few countries, including some countries with a unified personal-status law). The legal literature about personal-status laws has focused on issues of conflicts of laws in private international law (Benattar, 1967; Elgeddawy, 1971) and does not provide an analysis of the configuration of countries with an internal plurality of personal-status laws. More generally, there is no real dialogue between the specialists of Muslim countries, India, Israel, Western or Eastern Africa (“African law” or « Islamic law » being often considered as singular units, Sacco, 2009). The issue therefore has to be examined afresh, based on new insights in legal theory, legal history and comparative law. Only a multi-disciplinary approach, what we call a socio-historical jurisprudence, will be able to grasp the different levels involved by this diversity and to link them with the concepts of equality and discrimination.

The concept of personal-status law is a historical creation of modern States, often under colonial or quasi-colonial pressures, that have integrated this diversity of communitarian rules into their positive laws. This history is linked to judicial practices in the Ottoman Empire (the so-called millet system) and in Egypt. The other historical source of the notion lies in the policy of European colonial powers in Asia and Africa. Contrary to the first colonization wave in America, that transplanted European laws without any real consideration for indigenous customs, the second wave of colonization in Asia, then in Africa, led Portuguese, Dutch, English and French colonizers to recognize to non-Christian populations the keeping of their own family rules.

Ottoman rulers institutionalized the dhimmi system protecting Jewish and Christian communities (considered as “People of the Book”) enforced since the Umayyad and Abbasid Caliphates (beginning with the so-called “Pact of Umar” for the Christians of Jerusalem). The Ottoman millet system, granting separate jurisdictions to Jews and Christians, was officially organized between the 16th (Baude, 1982 about the myth of a foundation in the 15th century) and the 18th century (Masters, 2004). It was consolidated between 1839 and 1861. During the Tanzimat (reforms), civil equality among all Ottoman subjects was affirmed (Hatt-ı Hümâyûn. 1856). This latter decree established mixed courts for litigations between Muslims and non-Muslims. However, it did not define the competence of millet courts. For this reason, doubts remain about the application of personal statuses by these courts. Timur Kuran (Kuran, 2012) has shown that, in many cases, religious minorities in the Ottoman Empire preferred to use the qâdî courts and that there were some forms of “Islamization” of Christian and Jewish statuses. One generally considers that the capitulations treaties (which are said to have started with the treaty between the Ottoman sultan and the King of France in 1536) have granted Christian foreign merchants the privilege to be judged by their consuls on the basis of their national laws, but this privilege concerned criminal and civil cases between Christians (van den Boogert, 2005; Tait Slys 2014). There is a need to clarify the link between the different courts and the notion of “personal status” through new historical researches about the legal rules applied to non-Muslims in the Ottoman Empire. Concerning Muslims, the creation of “modern” courts (Nizamiye Courts) in the 1860s created a competition with Sharia (Seriat) courts which kept the jurisdiction on personal matters and religious endowments (Rubin, 2011) until their abolition in 1924. 

In Egypt, before the establishment of the Protectorate, the 1875-1883 judicial reforms consisted in creating mixed codes and courts for the private relationships between foreigners and Egyptians, as well as native codes and courts for criminal and civil cases between Egyptians. But personal-status matters (marriage, filiation, divorce, inheritance) remained within the jurisdiction of Sharia courts for Muslims and community courts for non-Muslims (Wood, 2016). Through Qadri Pasha’s draft code of Hanafi personal status (1875), the concept of “personal status” (al-ahwal al-shakhsiyya) as opposed to “real status” or civil rules was introduced in Muslim law (Boghdadi, 1937). That distinction between real and personal statuses finds its origins in Napoleonic civil law and definitely not in classical Islamic doctrine. In other words, the expression used to designate what is often considered as the last bastion of so-called Islamic law does not plunge its roots in Islamic fiqh. If Qadri Pasha’s personal status code was not promulgated and its authority is “still an open question” (Wood, 2016), the concept of “personal-status” was adopted by most countries in the Arab world to designate family law, whether or not they have a plurality of personal status laws. Many other Asian or African countries also use it as a synonym for family law.

Concerning Western colonization, the recognition of personal-status laws began in Goa and in Ceylon with the Portuguese (1597 Convention of Malwana), then the Dutch and the British (Cooray 2003, p. 4-5), in Bengal and in the rest of British Indies (1772 Regulations of Warren Hastings about inheritance, marriage, caste and religious cases judged according to the Quran or to the Sastras with respect to Mohammedans and Gentoos), in the French comptoirs de l’Inde (1769 ruling confirmed in 1819, Gentoos and Muslims judged according to their morals and customs, with a special court called Tribunal de la chaudrie, Bonnan, 1999), in Dutch-ruled Indonesia (since the establishment of a dual jurisdiction in 1747, Lukito 2013, p. 27) or in Algeria from the beginning of the French conquest in 1830 (Convention with the dey in which the French promised to respect religion, properties and wives of inhabitants). Using civil-law-transplanted legal categories that distinguished between personal and real statuses, local rulers and European colonizers created a separation in indigenous normativities between rules that were abolished (in criminal or civil matters) and those that were maintained (family law), as if family law was something isolated in the Muslim, Hindu or African normativities (Buskens and Dupret, 2014). Indonesia is a very significant instance of this process of positivization of “personal status”.  What is called Adatrecht is a composite made of two words: adat, which comes from Arabic and means usages, habits or practices, and recht, which is the Dutch word for law. Adatrecht was the term coined by Cornelius van Vollenhoven (1981) to describe Indonesian customs as collected and compiled by Dutch scholars and their local assistants, and made into positive law through their West-inspired organization in rationalistic codes. From 1882 onwards, Dutch colonizers also recognized religious courts for Muslims, while inheritance cases were separated from personal status in 1937, to be judged (according to adat) in indigenous courts (Lukito, 2013, p. 35 and 99).

After decolonization, countries with a diversity of personal statuses chose generally to maintain this system and accepted to recognize particular family laws for their religious minorities, like Copts in Egypt, Muslims in India or Kenya, Jews in Morocco. Despite the recognition of the principle of equality before the law (with the possibility of judicial review: Bernard-Maugiron, 2004) and sometimes (as in India) the promise of a uniform Civil Code, none of the considered States has given up this system, even if (as in Pakistan for Hindus or in Morocco for Jews) the religious minority has become very tiny in comparison with the majority of the population, itself submitted to a kind of “common law”. In spite of the differences in content of the various personal-status laws, the adoption of constitutions guaranteeing equality between all citizens and the ratification of UN instruments prohibiting any discrimination based on religion did not have concrete consequences. For long, there were obstacles to mixed marriages and claims of individuals who did not want to be tied to their religious affiliation were denied by most of these countries in order to keep the equilibrium between communities.

Most constitutions and statutory laws of the Asian and African concerned countries do not give a definition of “personal-status law”. If one wants to study the issue of equality in Asian and African countries recognizing a plurality of personal-status laws, one needs a “stipulative” definition of such legal systems. Our starting point consists in the identification of legal orders containing a set of differentiated statuses (that is, different from the status(es) of other nationals) in family law, based on the belonging (or non-belonging) of a citizen to a religion-based community, acquired by birth or marriage, with or without the possibility of choice (Halpérin, 2019). Such a definition leads to the identification of 29 countries in Asia and Africa with a plurality of personal-status laws (Bahrain, Bangladesh, Cameroon, Egypt, Ethiopia, Gambia, Ghana, India, Indonesia, Iran, Iraq, Israel, Jordan, Kenya, Lebanon, Malaysia, Morocco, Nigeria, Pakistan, Philippines, Senegal, Sierra Leone, Singapore, South Sudan, Sudan, Sri Lanka, Syria, Tanzania, Thailand). The fact that all these countries include a Muslim community (as a majority or a minority) does not mean that Islamic law is the core problem of the plurality of family laws, but that the coexistence of Muslim and non-Muslim populations in a same country has been one of the reasons why a plurality of personal-status laws has been kept until today. 

In 6 of these 29 countries, recent developments clearly show that new claims for equality and non-discrimination are challenging the traditional system recognizing the pluralism of personal-status laws:

In Egypt, in November 2019, a Christian woman managed to get a court ruling confirming her and her brothers’ right to rule out the implementation of the 1943 inheritance law and to divide the property left by her late father equally among themselves. The 1943 inheritance law codified Islamic inheritance rules that favor male heir who can inherit double the share of females. The personal-status laws of non-Muslim communities may, however, in, some areas be more stringent that those of Muslims, such as in matters of divorce where the Coptic Orthodox personal status law was amended in 2008 to limit the grounds for divorce, resulting in an increase in the cases of conversion to Islam of Copts seeking the application of the personal-status law for Muslims that allows divorce on several grounds (Bernard-Maugiron 2008 and 2011).

Since 2013, in Lebanon, some couples belonging to different religious communities have managed to get married before notaries according to the rules of the French Civil Code (as applied during the French mandate), instead of having to fly abroad to contract a civil marriage and (as in Israel) a rising trend is calling for the recognition of civil marriage in Lebanese law (Hanna, 2017). The massive demonstrations against the corruption of political life since October 2019 was also witness of the development of a women movement asking for equality between genders and more secularized laws.

In India, the Supreme Court has banned in August 2017 the triple talaq (Muslim verbal repudiation of the wife by the husband) as discriminatory and contrary to the principle of equality. The long sentence of the Supreme Court is a vivid testimony of the opposition between those who see personal-status laws as fundamental rights enshrined in the constitution (the minority opinion in this case) and those who are in favour of modifying part of these laws. The 2019 statutory law making the triple talaq an offence is now challenged before the courts (Agnes, 2019), in a political context characterized by a violent hostility towards Muslims (Jaffrelot, 2019).

In Indonesia the Constitutional Court, established in 2003, rejected a challenge against the regulation of polygamy in the marriage law (2007), as well as petitions to increase the minimal age of marriage for girls and to legitimate the interfaith marriages (2015). The 2013 Civil Administration Law ordered that one of the six religions (Muslim, Protestant, Catholic, Buddhist, Hindu, Confucian) be mentioned in the population registry but this rule was overruled in November 2017 by the Constitutional Court, weakening one of the bases of the plurality of personal-status laws that are also questioned by those wanting to extend the domain of Islamic law (The Jakarta Post, November 7, 2017).

In Cameroon, discussions about the plurality of personal-status laws have been reopened since 2004, within the frame of debates about the possibility of adopting a unified Civil Code (Atangana-Malongue, 2006). Since a 2010 ruling of the Supreme Court (Michel Zouhair Fadoul v. Omaïs Kassim) qualifying judges to exercise constitutional review, litigation regarding the principle of equality has been growing. 

In Tanzania, the activist lawyer Rebeca Gyumi succeeded in 2016 in having the provision of the 1971 Marriage Act that discriminated between girls and boys in child marriages repealed. The High Court rejected arguments based on the respect of the pluralism of personal laws (Rebeca Z. Gyumi vs. Attorney General, July 8, 2016).

Such developments show that these six countries are divided between proponents and opponents to the pluralism of personal-status laws. They also highlight the leading role grassroots movements, including women associations and human rights NGOs, can play in these debates in favour of gender and religious equality and non-discrimination in general (including domestic violence, legal status of homosexuality or abortion, which overcome the distinction between personal-status laws).

ELIPS proposes to combine historical studies and detailed surveys and to look at claims based on the principle of equality among citizens from different communities. We will make investigations about the opinions of religious leaders and grassroots movements, including women associations (N’Diaye 2016) and human rights NGOs, and analyse their impact (or their absence of impact in some countries) on statute law and case law regarding personal status. There is a real need to investigate ordinary as well as higher-courts cases in order to understand how these norms are applied in practice and not only how they are laid down in legal texts, and how courts, at all levels, have considered the plurality of personal statuses in the light of the principle of equality. Only a socio-historical jurisprudence, combining legal history, legal anthropology and legal theory can provide an added value to traditional comparative studies. It is such an approach, as a milestone for a new field of research, that ELIPS would like to adopt.

Methodology and risk management

Three steps are necessary for the realization of ELIPS: 1) Defining clearly the object through an analytical method; 2) Investigating six selected countries through field researches; 3) Organizing a general survey of the concerned legal systems.

Defining the object through an analytical method

In order to conduct our research about the pluralism of personal statuses and its relationship with the principle of equality, we need to use a definition that is clearly based on an analytical method. The preparation of the project has led us to such a definition: a legal order with a plurality of personal statuses that contains a set of differentiated statuses (that is, different from the status(es) of other nationals) of family law, based on the belonging (or non-belonging) to a religion-based community, acquired by birth or marriage, with or without the possibility of choice. By “personal-status law” or “family law”, we mean a corpus of legal rules concerning the family: not only different forms of marriages that can exist in countries without such plurality of personal statuses, but different rules concerning divorce, rights of spouses, filiation, adoption, inheritance. The criterion defined as “belonging to a religious-based community” excludes African legal systems (like Botswana, Lesotho, Malawi, Zambia, Zimbabwe, Uganda and South Africa) using only the distinction between customary communities (based on territorial rather than personal rules) and “general law” (linked with civil or religious marriages inherited from the colonial period). We admit that the linkage with the personal status is not always based on a religious affiliation, in particular when citizens can choose between different personal status options (ex. Senegal, Cameroon), but we consider that this religious component is present in all countries with a plurality of personal statuses. In some countries, one part of the population can be ruled by a personal status based on religion (e.g. Muslims), whereas the other part (non-Muslims) is ruled by other personal-status laws. In other countries, like Cameroon, Islamic personal-status law is not officially recognized: interpersonal conflicts are based on the opposition between “modern law” (with inter-territorial conflicts between the common law system in English-speaking regions and the civil law system in French-speaking regions) and the customary rules of about 250 ethnic groups. However, Alkaly courts concerning Cameroonians from the English-speaking area and of Muslim religion maintain a role for the criterion of belonging to a religious community. We have decided not to include Kuwait, Oman, Qatar and the United Arab Emirates in our list, although these countries’ personal-status codes contain specific rules for non-Muslims, since the latter constitute a non-representative minority.

The idea that personal status is “acquired by birth or marriage” leads to issues related to the presence or absence of its mention in the civil registries (a controversial question in Lebanon, Israel and in Indonesia), of the freedom of choice for the form of the marriage, and of the respective role of filiation and education in the determination of the personal status of a person.

In all countries, the principle of equality is interpreted as the obligation to treat equally persons who are in the same situations. Our research will not address the “principle of equality between men and women” as such, although, in many countries with a diversity of personal-status laws, women and men do not share the same condition. There is a specific field regarding equality issues in countries with diverse personal-status laws, as evidenced by recent rulings in India, Indonesia, Egypt, Lebanon, Cameroon, and Tanzania. We want to focus on cases and situations in which the principle of equality is invoked as being consistent or, on the contrary, inconsistent with the diversity of personal-status laws. For example, when one party to a conflict claims that women (or children) from their community enjoy less rights than women (or children) from another community submitted to a less discriminatory personal-status law.

In several Asian and African countries, in recent years, transformations of criminal law based on the right to privacy, equality and non-discrimination have also indirectly affected personal status through the development of general rules applicable to all individuals (e.g. abortion laws, laws regarding domestic violence, decriminalization of homosexuality, laws regarding out-of-wedlock sexual intercourse). All these developments also deserve to be studied, but ELIPS will focus on family law in the six countries where new developments show an increasing conflict between the diversity of personal-status laws and the principle of equality. We do not underestimate the risks related to the political situation in some of these countries, nor do we ignore the development of similar configurations in other countries with a diversity of personal-status laws. Nevertheless, these risks are reasonable and manageable, provided that we show flexibility in our choices according to the development of local circumstances.

Investigating six selected countries through detailed field researches.

Six countries will be the focus of detailed field research. They correspond to different schemes of personal-status plurality (with or without religious courts, with or without national aspirations towards a future uniform code) and offer a propitious space for litigation regarding the relationship between the plurality of personal statuses and the principle of equality. We will operate in three geographical areas: Sub-Saharan Africa, Middle-East and North Africa, South and South-East Asia.

Cameroon is a unitary State that succeeded to British and French colonization (after the German one, and a League of Nations mandate), then to a federal State (1961-1972). In Western Cameroon, British colonizers have created customary courts and recognized customary laws for marriage, guardianship and successions (including Islamic law since 1955). In Eastern Cameroon, French colonizers have installed indigenous courts (distinguishing customary and Islamic laws), but they have reformed some aspects of the marriage law through decrees (in 1939 regarding the consent of the bride) and in 1951 regarding marital gift), and allowed in 1947 the possibility to opt in favour of the French Civil Code (Bokally 1997). The successive constitutions (from 1960 to 1996, amended in 2008) have maintained the laws in force until their abrogation through new statutory laws, without any reference to customs. This is why the French Civil Code (in its version in force in 1960) is still applicable to persons opting for the “modern” status in Eastern Cameroon. A dual system of courts was confirmed by decree in 1969: customary laws are to be applied by customary courts for about 250 ethnic groups and by alkali courts for Muslims (about 20 % of the population) in the provinces of Eastern Cameroon. As the marriage certificate must specify whether the marriage is monogamous or polygamous (Marriage Act, art. 49), it seems to open the door to at least two different personal statuses (the “modern one” with monogamous marriage seeming rather rare among the population). Although a 1985 ruling of the Supreme Court stated that “Islamic law is not a Cameroonian institution or a custom” (Ebi, 2012), it continues to be applied by alkali courts or by the first instance courts in Francophone Cameroon. A 1981 ordinance (amended in 2011) harmonized certain matters in the domain of personal-status law, whereas the Supreme Court imposed the respect of equality against male privilege in inheritance law (1968) and reinforced the rights of the surviving spouse (1972). Taking into account cases of resistance among judges regarding the application of the principle of equality, there is a clear need to know how these rules are applied by customary and Alkali courts and how all stakeholders (judges, lawyers, notaries, academics, parliamentarians, traditional and religious leaders, human rights associations) consider the possibility of adopting a civil code. 

The evolution of personal-status law in Tanzania deserves new investigations. If there are Kadhi Courts for the population of the islands of Zanzibar (99 % Muslim), the mainland of Tanzania (with around the same percentage of Muslims and Christians) has a very specific system (Makamba, 2010). Marriage was unified in 1971: it recognizes two kinds of marriages, monogamous and polygamous, the second one being submitted to state rules that are close to the Muslim tradition (for example, possibility of divorce through talaq but with a mandatory phase of conciliation). There are four systems of inheritance: one common law system according to the 1865 Indian Succession Act introduced by the British colonizer, customary rules, Islamic rules and the 1870 Hindu Act. It seems that the latter is not applied by courts anymore (this has to be checked by on-field investigations) and that inheritance is shared according to the law (or the faith) of the deceased, without excluding the coexistence of customary and Muslim heirs in the same inheritance. The UN Committee monitoring the implementation of CEDAW has criticized Tanzania in 2015 for discriminating customary widows who are deprived of any right of inheritance (Dancer, 2017). In 2017, the High Court of Tanzania struck down the provisions of the Tanzania Marriage Act allowing the marriage of girls at the age of 15 based on the principle of equality. In its ruling, the Court said that the rules of customary and Islamic laws do not apply to matters covered by the Marriage Act (case of Rebecca Giyumi who won the UN Human Rights Prize in 2018). We have to study if there are two, three or four personal statuses in Tanzania, if there are possibilities of change from one status to another (in particular through interfaith marriage and interfaith inheritance) and whether the system is going through a “crisis”.

Lebanon has 18 recognized religious communities (most of them with a personal-status law in force, even though doubts may be raised regarding the Jewish status today, while the Ismaili community is not legally “organized”). According to 1936 and 1951 statutes, each community had to submit the provisions of its personal status to the Government. The Druze (1948), the Sunnites (1955-1956) and the Shias (1967) are submitted their statutory laws but do not enjoy legal autonomy (their jurisdiction is integrated in the State apparatus and their qâdîs are paid by the state). The six Catholic communities are ruled by a 1952 common text; the Orthodox and the Jewish communities presented their own personal status codes, which were never statutorily approved but are nevertheless applied by judges (Hanna, 2017, p. 57-58). The unified law of inheritance (Law of 23 June 1959) was limited to non-Muslims (according to a 1969 Law, inheritance matters are judged by Sunnite or Chia qâdîs for Muslims). In 2013, the first civil marriage celebrated in Lebanon was registered on the basis of a French decree that was not abrogated since the mandate. It is necessary to update our knowledge regarding litigation inside each community, as well as the social demands asking for the evolution of personal-status laws.

Egypt is known for the personal status law of the Coptic Orthodox minority (1938 Personal Status Regulations as amended in 2008), besides that of the Muslim majority (law-decrees of 1920 and 1929 on personal status as amended in 1985; Law of 2000). In fact, fourteen non-Muslim religious communities have been recognized (four Orthodox, seven Catholic, one Protestant and two Jewish). There are many questions concerning the functioning of this plurality of personal statuses within a unified and secular judiciary. Egypt is also specifically characterized by a unified law of succession (1943 law based on Islamic doctrine) prohibiting the succession between Muslims and non-Muslims (Bernard-Maugiron 2010). The Supreme Constitutional Court has been asked to rule on cases involving personal statuses and equality: in 1997-1998 regarding the unification of the age of transfer of children custody from the divorced mother to the divorced father; in 2010 regarding the non-imposition of a right to divorce to the Coptic community; in 2017 regarding the granting to Copt civil servants of a one-month vacation right to make pilgrimage to Jerusalem; or regarding the striking down of a 2008 law concerning the non-registration of marriages of children under 18 years (an issue that transcends the differences between personal statuses). Recent developments since the 2011 upheaval have to be taken into account. 

India also has a unified and secular judiciary without religious courts (Halperin 2012). It recognises five personal statuses (Hindu, Muslim, Christian, Parsi and Jew). If cases related to the Jewish status are not likely to be brought before the courts, the four other statuses, though, are applied by Indian judges. The questions regarding the belonging to a religious community (Hindu marriage is reserved to spouses who can prove to be Hindu, Buddhist, Sikh or Jain, which may raise problems for children born from interfaith marriages), to conversions (in the absence of a state-controlled procedure and with a movement encouraged by the Bharatiya Janata Party in favour of conversions from Islam to Hinduism), to recourse to the special marriage (a kind of civil marriage that can be used for interfaith marriages or for registration of a former religious marriage) continue to provide a rich case law (Halpérin, 2016) under the supervision of the Supreme Court (that has struck down the Islamic rule of triple talak in 2017). There are today hot debates related to tensions with the principle of equality, whereas nationalist Hindus might be tempted to reignite the project of a uniform civil code. 

Indonesia has, since 1974, a unified marriage law subjecting the union to “the law of religion and beliefs of both sides” (interfaith marriages are not explicitly prohibited) and provides three different succession laws: codified law (from Dutch origin), Islamic law and customary (adat) law (Barlinti, 2013). Under the Dutch (Lukito 2013), Indonesia knew a dual and even triple justice system: general courts for Europeans (and those accepting to be judged by these courts), county courts for indigenous people (applying adat law, in some cases confused with Islamic law), Islamic religious courts with limited competence. After the 1945 independence, adat courts were suppressed and a unified judiciary was established in 1960. However, Islamic courts were recognized in 1970 and their competences enlarged in 1989 (including inheritance law). Islamic law was compiled (1991 Presidential Order). The post-Soeharto era (since 1998) confirmed the strong position of Islamic Courts through the laws of 1999, 2004, 2006 and 2009. Marriage is concluded according to the religion of the spouses (Muslim 87 %, Protestant 7 %, Catholic 2,9 %, Buddhist 0,7 %, Confucian less than 0,1 %; Hinduism is not recognized) and must be registered (with common rules for marriage age, polygamy and divorce, which are controlled by judges). Regarding inheritance law, there seems to be an optional system (adat law can be applied to Muslims, if not challenged before Islamic courts; some courts admitted, in 1999 and 2001, interfaith inheritance in favour of non-Muslim heirs in Muslim successions). There is also a process of accommodation for adoption (traditional in adat law, permitted by civil law, normally forbidden by Islamic law). There is a political pressure toward the extension of Iaws inspired by Islam (criminalizing out-of-wedlock sexual intercourse and homosexuality). We have to study how judges and stakeholders act in such a situation.

In these six countries, ELIPS has the ambition to go beyond statutes and exegetic descriptions by academics. It will conduct investigations not only into published case law, but also in written files and archives and within courtrooms and attorneys offices in order to answer the questions related to the working of personal-status laws plurality and the possible tensions with the principle of equality. First, there is the issue of the link with one of the recognized communities and the possibility of changing one’s community affiliation. In Lebanon, the practice (and not the statutory rule of the 1951 law) is to declare the religious community of a child at the moment of his/her registration in the civil registry (Hanna, 2017, p. 97), but it is possible to ask for the radiation of this religious affiliation. This radiation was used recently (in 2013) to conclude a civil marriage (before a notary) according to the 1936 French regulation (and with reference to the French Civil Code). Some couples obtained the registration of such marriages with the support of the Ministry of Justice, despite increasing tensions since 2015 and hesitations of courts. The issue of registration of religious affiliation is also controversial in Indonesia: the 2013 Civil Administration Act has ordered the mention of one of the six religions (Muslim, Protestant, Catholic, Buddhist, Hindu, Confucian) in the population registry, but this rule was overturned in November 2017 by the Constitutional Court. The question of conversions and of their impact has also been raised in several cases in India, as well as the current practice of “reversion to Hinduism”. The religion of children is also a source of conflicts (it was an issue about the religion of Rajiv Ghandi in India). In Egypt, Christians convert to another religion or denomination to benefit from the personal-status rules governing Muslims and be allowed to divorce.

ELIPS will also update information about legislation and case law concerning interfaith marriage and inheritance, which may challenge the principle of equality. Are inter-religious marriages recognized by judges? Is civil marriage allowed? What about children from inter-religious marriages? In Indonesia, the silence of the law regarding interfaith marriages was interpreted in 1986 by the Supreme Court as permissive, but the evolution since that time and the choice of the law to be applied to a mixed couple remain unclear. Can Muslims inherit from relatives who belong to another religious community and vice-versa? The existence of a dominant personal status law (that can be applied to interfaith marriages as in Egypt, where a marriage of two persons belonging to different Christian communities is submitted to the general law applicable to Muslims) can appear as inconsistent with the principle of equality. We will analyse all kinds of disputes using this argument, in particular those based on women and children rights.

ELIPS will investigate several other issues: Why were some religious communities allowed to keep their personal status laws while others were not? On what grounds were personal-status rules recognized as statutory laws or as administrative regulations? How were personal-status laws drafted and who may amend them? Can state authority interfere with the legislative autonomy of the different communities? In which countries do community councils/courts rule on personal-status conflicts? How are their members appointed? Can women testify at courts? Can they seat in such councils/courts (Cardinal, 2010)? Some personal statuses seem to be based on extremely fragile grounds and to be more dependent on informal authorities than on courts. New investigations on these religious, communal or customary authorities deserve to be conducted, like what was done regarding Senegal (N’Diaye, 2016). Policies of supreme or constitutional courts will be closely considered because of their power to rule on the compatibility between the plurality of personal-status laws and the principle of equality of citizens before the law.

We will also have to enquire about the position of religious leaders defending the status quo and their own powers and autonomy, in particular when those minorities may be frightened (as Muslims in India, Copts in Egypt) by the unification of personal-status laws into one single code. The movements in favour of the recognition of civil marriages (in countries prohibiting this kind of marriage inside their borders, triggering some couples to contract a civil marriage abroad) are another subject of documentary investigations. The program will conduct inquiries and interview with human rights associations, as well as traditional leaders, investigating e.g. how they can interfere with the law making and adjudication processes. It will also address international and regional human rights mechanisms to see whether the supervisory bodies have had the opportunity to report on these countries, in particular the UN Human Rights Committee in charge of the supervision of the implementation of the International Covenant on Civil and Political Rights.

The methodology used for local investigations will be based on inquiries into the activities and discourses of judges, lawyers, religious and traditional leaders, women rights and more generally human rights activists. We will combine the systematic survey of case law (that is poorly known in many cases) with an extended program comprising in situ ethnographies, interviews with judges and lawyers, studies of case files, analysis of judicial styles and problems linked with the difficulties of the dissemination and interpretation of statute law. Courts observation will also allow us to get updated information about the application of personal-status laws (since small and isolated communities are not expected to go to courts), cases implying conflicts of laws as well as the use of constitutional or international norms to claim the violation of the principle of equality. For all these reasons, our enquiries will involve constitutional and administrative courts as well as ordinary tribunals and conciliation councils. We will manage the risks regarding the protection of privacy and freedom of speech, particularly when conducting interviews, by guaranteeing the anonymity and securing the consent of the concerned persons.

Making an overall survey of all the Asian and African countries that know a plurality of personal-status laws

ELIPS will make an updated analysis of all legal systems that recognize a diversity of personal-status laws in Asia and Africa. We will classify these 23 countries into three groups. The first one will include countries with small and isolated minorities where we expect personal-status laws to exist only on the paper. The second group will gather countries where we have not heard of court cases regarding conflicts between personal status laws and the principle of equality. Five countries with a special situation, comparable to, and together with, our six target countries constitute the third group.

The first group will include countries that allow minorities to apply their own personal status laws but where we have serious doubts about the implementation in practice of these laws. (such is also the case for the Emirates, Kuwait, Oman, and Qatar, whose non-Muslim minorities are insignificant). Kuwait and Qatar’s personal-status laws are nevertheless worth interest, since they recognize an intra-Muslim personal-status pluralism. The other 8 countries do have important and organized minorities with their own laws and courts but will also be included in this first group because the current situation in the country prevents them from having access to judicial institutions. This is the case for Syria (Eijk, 2016 p. 172-205) that is facing civil war and Iraq in war against the Islamic state. Irak however deserves to be studied more in depth since it is the only country that has a personal status law that applied to one of its region, Kurdistan. Iran will also be included in this group because the recognition of Christian and Zoroastrian minorities by the Islamic Republic has theoretically maintained the personal statuses of these minorities, but we have not been able yet to get any information regarding possible litigation. Jordan inherited a plurality of personal statuses from the Ottoman period but the 2010 personal-status law for Muslims is considered as the common law and there is only scarce information regarding councils competent for disputes among Christians (Engelcke, 2019). In Pakistan and Bangladesh, non-Muslim minorities are very weak and seem unable to go to courts (Ispahani 2017; Zahir, 2015). There are doubts about the occurrence of interfaith marriages. In East Africa, similar uncertainties are found in Sudan (for the Christian and Hindu minorities, whereas the Muslim majority is ruled by a 1991 Family Law inspired by the sharia, Fadlalla, 2001; Kongden, 2018) and in the recently independent South Sudan (with a Christian majority and the organisation of customary courts that are not based on religious criteria).

The second group will comprise ten countries where the plurality of personal statuses is not likely to trigger litigation with respect to the principle of equality. Sri Lanka knows three personal statuses:  Kandyan Law for the Singhalese majority, Islamic Law for the Muslim minority and Tesawalamai for one part of Tamils (in this case mixing personal and territorial criteria, Cooray 2003, 147). We have to check whether the situation changed since the end of the civil war in 2009. Thailand has a special status for the Muslim minority since 1946 (Samah and alii, 2017) that has not been studied so far. In 1977, Philippines also granted its Muslim minority (6 % of the population) a Code of Muslim Personal Law (Mastura, 1994) that needs to be better studied. Singapore law makes a distinction between Muslims (submitted to the 1966 Administration of Muslim Law Act and to religious courts) and non-Muslims (ruled by the 1961 Women Charter). If there is a clear opposition between these two groups in marriage and inheritance law, it seems that there are no conflicts between civil and religious courts, the former applying inheritance rules for Muslims according to a certificate given by the latter (Abbas, 2012). In Ghana, there are three different statuses: the Muslim one (according to the Marriage of Mohammedans Ordinance of 1907), the modern one (according to the 1914 Marriage Act, amended in 1990, and the 1970 Matrimonial Causes Act) and the customary one (with polygamous marriage). Islamic law being a “variation of customary law” (Essien, 1994) there is a problem with a great number of Muslim marriages that are not registered and we doubt that there is any substantial case law concerning the plurality of personal statuses. Sierra Leone (78 % Muslims, 20 % Christians) knows four kinds of marriages, but the 2007 Devolution of Estates Act applies to every person irrespective of religion or ethnic origin and is not applicable to family property under customary law. Here again there is an uncertain situation about the reality of personal-status laws, as in Gambia with also four kinds of marriage and one law for inheritance (the 1992 Will Act limits wills to one third of the inheritance). Morocco recognizes the right of Moroccans of Jewish faith to be governed by the provisions of the Hebraic Moroccan  Family Law that is distinct from the “common law” of the Mudawwana (the family code adopted in 2004), but this “equilibrium” seems conditional upon not-challenging the principle of equality before state courts. In Ethiopia, Sharia courts were created in 1942 and confirmed in 1999: they apply Islamic law without taking into account the principle of equality and apparently without any control from the superior courts (Seidel, 2019). In Bahrain, a 2017 unified family code applies to both Shia and Sunni Muslims, with provisions that apply only to Shia and others that apply to both. There is no reported case of litigation about the principle of equality.

Five special cases form the third and last group, in addition to our target group of six countries. The situation in Kenya has been recently studied (Cussac, 2008; Ochich, 2011): Anne Cussac has shown that the Muslim community (around 11 % of the population) managed to keep the kadhi courts, but that the rulings of these courts are rather limited (especially in inheritance cases), which casts doubts about the content of the different personal statuses. Important studies regarding Senegal (Brossier, 2004; N’Diaye, 2016) show the coexistence of two different personal-status laws in the field of marriage and inheritance in the 1972 Family Code. We have to update information about this very original system with the optional character between civil and customary marriages, as well as between general inheritance law and Islamic inheritance law.  

Three other cases will need due consideration, in comparison with neighbouring countries of our target group. Close to Cameroon, Nigeria raises the question of the possible evolution from a plurality of personal statuses to different territorial laws. Nigeria is a federation with 36 States and a population with two important groups (each one claiming to be the largest one) of Muslims and Christians, the former rather in the Northern States and the latter in the Southern States. Eighteen of the nineteen Northern States have Sharia Courts that apply extensively some kind of ”Islamic law”, whereas some North-Eastern States apply Islamic law only in the field of personal-status (Mwalimu, 2005, vol. I, 168). The evolution seems to lead towards two different systems on a territorial (and not personal) basis.

Close to Lebanon, Israel recognizes 14 religious communities and around ten different religious courts, considering that the Greek, Armenian and Syrian Catholics have transmitted their rights to Catholic ecclesiastic courts (Sezgin 2003, 90). There is some doubt concerning the existence of Baha’i courts and laws. The patrimonial effects of divorce are judged by secular courts according to the 1969 Dissolution of Marriage – Special Cases Act. Civil marriage is only possible abroad or for persons who are not officially recognized as Jews according to the 2010 Civil Union Law for those without Religious Affiliation. Inheritance is unified (with a large testamentary freedom) according to the Succession Law of 1965. Israeli case law is rather well known and the Supreme Court is very reluctant to apply the principle of equality in this field. However, recent evolutions concerning interfaith marriages should be studied.

Close to Indonesia, Malaysia contains more than 66 % Muslims, 17,92 % Buddhists, 8,96% Christians and 5,12% Hinduists (Reddy, 1995). In the Straits Settlements, as in Sabah and Sarawak, the British colonizers applied both Islamic and customary (adat) laws to non-Muslims (Chinese and Indian people), for example recognizing equal rights of inheritance to Chinese secondary and primary wives (Poh-Ling Tan, 1997). Christian marriage was submitted to Ordinances enacted in 1898 and 1915 (Swee-Hock, 2007). After independence, the Federation of Malaysia first maintained this system, but in 1976 the Marriage and Divorce Act prohibited polygamous marriages (from 1982 onwards) and created a unique law of marriage (always registered, with the possibility of a civil or religious ceremony according to religious or customary rites) for all non-Muslim Malays. The Federation has competence to legislate “Islamic law and personal and family law of persons professing the religion of Islam”. In fact, each State has powers for regulating matters in Islamic law: a model of family law was drafted at the federal level) and, from 1983 onwards, each State adopted a law inspired by this draft (Siraj, 1994). The Constitution has thus recognized a Muslim personal status and a civil status for non-Muslims, which includes the Marriage Act of 1976, the 1971 Inheritance Act and the 1952 Adoption Act. Muslims have their own rules of inheritance with customary (adat) institutions. Studying cases and case law will help develop comparisons with Indonesia.

As far as these 23 countries are concerned, it seems that the plurality of personal-status laws is mainly a historical survival and that, in some cases, the demographic evolution makes the minority statuses not likely to be applied by courts. Although these personal status laws may be implemented by their communal authorities, the very small number of interfaith marriages and inheritances does not seem to raise questions about the principle of equality. The tasks of the survey will be to distinguish between “paper rules” and really applied rules, to consider the possibility of disappearance of some personal statuses (through disuse, imposed unification or absence of non-Muslim citizens) and to study the positions of minorities and their leaders regarding this issue. The denial of minority rights could of course be considered a violation of the principle of equality in these countries. The general survey will lead to a better knowledge and typology of these 23 legal systems through a data base (demographic information, judicial statistics, legal texts of reference, case law, bibliography).


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Partenaires :

HALPERINJean-LouisPUCTAD UMR 7074Coordinator
DUPRETBaudouinDRLAM (UMR5115 CNRS)Partner’s scientific leader
BERNARD – MAUGIRONNathalieDRIRD-CEPED (UMR 196 IRD)Partner’s scientific leader