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Abstract

In mid-2013, Egypt’s Supreme Constitutional Court found a statutory provision in force at the time of the decision to be in violation of the constitutional provision declaring the principles of Islamic sharia the chief source of legislation (Article 2). It was the second time since the provision was originally introduced in the Constitution in 1971 and later amended in 1980. It had only happened once before, in 2006. In the ruling considered here, the Court confirmed its conventional construction of Article 2, and declared that in the case at hand the legislator had simply overstepped its boundaries by restricting the exercise of the grandparents’ visitation rights to the case of the absence of parents. In the eyes of the Court, the legislator was entitled to regulate grandparents’ visitation rights, but in doing so it did not properly align its intervention with the overall objectives of sharia (maqāṣid). The ruling was issued in a relatively peaceful phase that followed a fierce and prolonged confrontation between the Court and Islamists the previous year.

In: Arab Law Quarterly
Author:

Abstract

This article questions the lumpy character of understanding Islamic constitutionalism through all-pervasive models operating across time and space and reliance on classical texts as the ultimate reference for jurisprudence. It focuses on conflict and compromise among stakeholders in individual Muslim countries. Pakistan represents a ‘differentiated social formation’ underscored by dichotomy between modernity and tradition. The former is defined by a secular legal-institutional mechanism of authority inherited from British India, which seeks to accommodate the latter’s Islamic agenda through ideological symbolism, legal formalism and — under Gen. Zia’s martial law — cultivation of a divine source of legitimacy to counter the constitutional source of legitimacy in the form of mass mandate. In the face of outcry from modernists, the ulema fell back on a defensive strategy to safeguard their gains.

In: Arab Law Quarterly
Author:

Abstract

This paper contributes a legal and a South Asian perspective to the emerging scholarship on the materiality of the Qur’an, exploring and analysing the development of the laws and regulations that protect the Qur’an as a sacred object against the risk desecration, defilement as well as heretical translations and interpretations. Starting with the enactment of Indian Penal Code, 1860 in colonial India and ending with amendments to the Punjab Holy Quran (Printing and Recording) Act, 2011 in 2022, this paper identifies multiple layers of statutes and regulations that accompany the life-cycle of the Qur’an from ‘cradle to grave’. In analysing the legal developments that have fused the object and the text of the Qurʾan into a legal entity that demands particular interpretations of Islam, this paper identifies an Islamic state doctrine that asks and expects the Pakistani state to protect and promote Islamic law and religion in an increasing number of contexts and occasions, the protection of the Qurʾan being only one of them.

Open Access
In: Arab Law Quarterly

Abstract

This article examines the phenomenon of cyberbullying from a legal perspective, focusing on the United Arab Emirates (‘UAE’). The increased use of technology in daily life has led to a rise in cybercrime, including cyberbullying. Children are frequent users of the cyber-world, and cyberbullying has become a significant issue that can have severe physical and psychological impacts. This paper aims to explore cyberbullying in the UAE and analyse the relevant provisions of two laws: the Federal Decree Law No. 34 of 2021 on Combating Rumours and Cybercrime and the Federal Decree Law No. 3 of 2016 on Child Rights. Specifically, the paper addresses two questions: whether the concept of cyberbullying is distinct from that of physical bullying, and, more importantly, whether existing UAE laws are sufficient to address cyberbullying. The paper concludes by highlighting the urgent need for the UAE to revise some provisions to tackle cyberbullying and protect users, especially children.

In: Arab Law Quarterly
Author:

Abstract

Istiṣḥāb al-ḥāl, the presumption of the persistence of a state or ruling, is a disputed source within Islamic jurisprudence. For some scholars, it is one of the main sources of Islamic law. Many juristic principles are based on istiṣḥāb. The Hanbali scholar al-Ṭūfī (d. 716/1316) follows this idea in Sharḥ Mukhtaṣar al-Rawḍa and holds that istiṣḥāb is the fourth source of law after the Quran, Sunna, and Consensus. Al-Ṭūfī argues for the validity of istiṣḥāb with regard to a physical theory in kalām known as atomism. He discusses the possibility of continuation in existence. In his view istiṣḥāb is based on the principle that persistence/continuation (baqāʾ) is an accident (ʿaraḍ) that is not re-created in each moment in contrast to kalām atomism, which postulates that accidents are re-created constantly. This article presents al-Ṭūfī’s original approach to the validity of istiṣḥāb that guarantees the continuous existence of a state and ruling.

Open Access
In: Islamic Law and Society
In: Yearbook of Islamic and Middle Eastern Law Online

Abstract

There are ongoing arbitration-related developments and updates that are worthy of mentioning in Egypt. In 2022, Egypt has adopted a recent model BIT, wherein it included provisions related to third-party funding and has significantly amended the dispute resolution mechanism of the preceding BIT models, and reintroduced the reference to ICSID arbitration under more stringent conditions. Also, by mid-2023, the CRCICA revealed its new draft arbitration rules which introduced new provisions that are not included in the 2011 arbitration rules such as consolidation, multiparty and multiple contracts arbitrations, third-party funding, emergency arbitrator and expedited procedures. On the judicial level, there are significant decisions rendered by the Cairo Court of Appeal and the Court of Cassation addressing various issues including the following: (i) the allocation of costs is based on a legal provision and does not amount to a compensation for special damages; (ii) supplementary compensation can be awarded in the form of an interest at a set rate provided that it fulfills the legally prescribed conditions; (iii) the nationality of the arbitrator is not a fundamental requirement to be included in the award, as long as it can be revealed from the case file and unless the parties excluded a specific nationality; (iv) a judge is disqualified to hear a petition filed to reverse his/her own order refusing enforcement of an arbitral award (v) a party who does not challenge an arbitrator, who failed to disclose that he was sentenced a one-year prison for a charge involving moral turpitude, within the timeframe for challenging him/her, is considered having waived its right to object and consequently such undisclosed circumstance will not affect the validity of the award; and (vi) the interest rate set by the Central Bank of Egypt is applied to commercial loans between non-banking commercial parties and does not violate the principles of Islamic Shari’a.

In: Yearbook of Islamic and Middle Eastern Law Online
Free access
In: Middle East Law and Governance

Abstract

On-screen female advocates have been the subject of investigation in a growing body of literature over the past two decades. Celluloid depictions of women lawyers in the Middle East are less common. This paper attempts to fill this gap by examining two films: In Between and The Accused. These films were chosen for two reasons. First, they constitute rare cinematic representations of female lawyers’ personal lifestyles and the way these lifestyles inform professional identity. Secondly, they evoke detraditionalized versions of gender while emphasising the construction of new on-screen femininities not that far off from modern day legal practice. This paper consists of three parts. The first part examines the striking similarities in the way both films portray female lawyers as role models and outsiders in the legal profession. The second part situates the discussion of the two films within the consumer-based, pleasure-seeking attitude associated with the new aesthetics of legal practice. The third part draws parallels between the fictional representations of the female lawyers in the two films and the reality of legal practice.

In: Middle East Law and Governance