Articles 89 and 110, Chapter 3, Sharia Court Regulations, promulgated by Law No. 78 of 1931, which regulated the activities of Sharia Courts, whose purpose was in settling personal status disputes, included the legislative basis of hisba cases in "The principles of pleadings," from ch. 2, Civil Procedures Code, Vol. IV, "On notifications, registering lawsuits, presenting documents, pleadings, evidence, rulings and challenges."
Article 89 stated that, "A lawsuit is only accepted from a real, legal opponent."
Article 110 stated that, "Where the plaintiff or his attorney attend on the specified date and the case and its verdict is heard, following which the plaintiff pleads what can be considered an independent lawsuit, then does not attend or send an attorney on the specified date, the defendant may choose to request that the case be considered invalid, or that the plea be legally continued by reversing the roles, i.e., the plaintiff becomes the defendant and vice versa."
Law No. 462 of 1955 repealed many of the articles of the regulations organizing Sharia Courts, including Articles 89 and 110 which represent the legislative basis of hisba cases. Thus, the regulations became free of any legislative basis for hisba cases. Personal status disputes thus became governed by the provisions of the Civil Procedures Code with relation to the acceptance of lawsuits, as there were no longer any special laws within the remainder of the regulations or the supplementary laws regulating the matter in accordance with Article 5 of Law No. 462 of 1955, which states that:
"Subject to the Civil Procedures Code in the matters related to personal status and religious endowments (waqf) which used to be under the jurisdiction of Sharia Courts or Millat Councils, except those cases for which special rules were stated in the Sharia Court Regulations, and other courts."
Jurisprudence and the judiciary differed over defining the effect of such a repeal. Jurisprudents, along with the Court of Cassation, believed that hisba cases should still apply within the field of personal status disputes, since this area is totally governed by the Sharia. This is backed by Article 280 of the Regulations which refers the judge to the most probable interpretation of the Hanafi school in cases where the Regulations and its supplementary laws lack any provisions to settle the disputed case. Thus, in cases where the Regulations and its supplementary laws lack any provisions repealing hisba cases, and as hisba cases are interpreted to exist according to the Hanafi school, hisba cases should be accepted in accordance with Article 280 of the Regulations.
Others considered the repeal as the clear will of the legislature to bring personal status disputes under the Civil Procedures Code, as all other civil disputes are, with the aim of unifying the judiciary. This opinion is based on Article 1 of the said Law which states:
"Sharia and Millat Courts are hereby abolished as from January 1, 1956. The cases before such courts shall be referred to national courts until December 31, 1955, to be settled in accordance with the Civil Procedures Code..."
The above text makes it clear not only that religious courts were abolished, but also that personal status cases became subject to the provisions of the Civil Procedures Code. The text also specifies dates to start the enforcement of the said article in cases to which such criteria apply, i.e., the text specified a time frame for the validity of its provisions, thus subjecting all new personal status cases filed as from 1/1/1956 to the provisions of the Civil Procedures Code.
"Rulings should be based on the Regulations and the most probable interpretation of the Hanafi school, except those cases where the law on Sharia courts clearly states rules, then the rulings should be issued according to the law."
This Article cannot be a legislative basis for hisba cases for the following reasons:
Articles 89 and 110 of the Regulations, and not Article 280, are the only two articles regulating hisba.
Article 280 was not stated in section two of the Regulations, the section dedicated to procedures, which regulates both capacity and interest, but in section four dedicated to rulings
Article 280 is legally invalid because it refers judges to unwritten rules which have not been codified. Most modern legal systems are based on codified written rules to facilitate the work of judges and lawyers in preparing their defense and for the higher court to be able to monitor the application of the law.
Article 280 is unconstitutional in that it did not adhere to the principle of separation of the legislative and judicial authorities. The article gives judges the task of finding the most probable interpretation of the Hanafi school.
If the rule chosen by the judge is clear, then there is no doubt about its constitutionality. But if the rule is unclear, and the judge must search for the rule to legislate it, then this falls under the jurisdiction of the legislature.
Justice Mahmud Oqba, opposing the constitutionality of the article, said: 'the judge rules on the grounds of the most probable interpretation of the Hanafi school, but what is the most probable interpretation of the school? It has been said that the most probable is what was agreed upon by Abu Yusif, chief justice in the times of Caliph al-Rashid, who only compiled Kitab al-Amwal on the work of Abu Hanifa and financial rights. Muhammad compiled all the work of the Hanafi School. Both cannot be the base to identify the most probable interpretation of the Hanafi school."[endnote 1]
Another aspect of the unconstitutionality of Article 280 is that it limited Sharia to the Hanafi school alone. Historically, the limitation is based on the period of occupation by the Ottoman Empire, whose official school was the Hanafi school.
Article 280 is unconstitutional, based on the condition of publishing all legislation in the Official Gazette within two weeks following its promulgation (Article 188 of the Constitution). Publishing is a substantial element in the issuing of new legislation. The Hanafi school rules lack the characteristics of legal rules for this reason.
1. Akhbar al-Adb, no.31, January 14 1995, p. 10.
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