FOREIGN JUDGMENT REVIEW | PRINCIPLE OF EQUALITY OF ARMS | INTERNATIONAL PUBLIC ORDER OF THE PORTUGUESE STATE | ISLAMIC LAW | DIVORCE | TALAQ
Tribunal da Rela√ß√£o de Lisboa, proc. 1378/18.YRLSB-7, 19.11.2019
SUBJECT: Foreign judgment review
RAPPORTEUR: Maria AmeŐĀlia Ribeiro
RULING: Dismissal of the request to review the sworn declaration made before a Notary in Bangladesh and by means of which the applicant had repudiated his wife.
Portuguese Constitution [Articles 8, 36(5), 67 to 70]
Code of Civil Procedure [Articles 980, 1094(1), 1096, 1101]
Civil Code [Articles 22, 371(1), 1671(1), 1672(1), 1675(1), 1676(2), 1682-B, 1683, 1685, 1773(1), 1775(1), 1781]
Decree-Law no. 272/2001, of 13 October 2001 (Article 12)
General Regime of the Civil Custody Procedure
Law no. 5/2017, of 2 March 2017
Supreme Court of Justice judgment, proc. 106/18.0YRCBR.S1, 28.02.2019
Supreme Court of Justice judgment, proc. 828/18.5YRLSB.S1, 09.05.2019
Supreme Court of Justice judgment, proc. 559/18.6YRLSB.S1, 21.03.2019
Lisbon Court of Appeal judgment, proc. 10602/2005-2, 18.10.2007
Universal Declaration of Human Rights, 1948 (Article 10)
Declaration of the Rights of the Child, 1959 (Principle 6)
Convention on the Rights of the Child, 1989 (Articles 18, 27)
European Convention on Human Rights, of 1950 (Article 6)
Protocol no. 7 to the European Convention on Human Rights, of 1984 (Article 5)
Protocol no. 12 to the European Convention on Human Rights, 2000 (Article 1)
European Court of Human Rights judgment D.D. v. France, proc. 3/02, 08.11.2005
EUROPEAN UNION LAW:
EU Treaty (Article 6)
EU Charter of Fundamental Rights (Articles 20 to 24)
Council Regulation (EU) no. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Articles 10, 12)
European Court of Justice (First Chamber) judgment, Soha Sahyouni v Raja Mamisch, proc. C-372/16, 20.12.2017
Bangladesh Muslim Family Laws Ordinance, 1961
Bangladesh Divorce Act, 1869
Bengal Act no. 1 of 1876
Bangladesh Muslim Marriages and Divorces (Registration) Act, 1974
French Cour de Cassation judgment, 1st Civil Chamber, 18.12.1979
French Cour de Cassation judgment, 1st Civil Chamber, 03.11.1983
French Cour de Cassation judgment, 1st Civil Chamber, 01.06.1994
French Cour de Cassation judgment, 1st Civil Chamber, 31.01.1995
French Cour de Cassation judgments, 1st Civil Chamber, 17.02.2004
Spanish High Court judgment, Civil Division, proc. 1894/1997, 15.07.1997
Spanish High Court judgment, Civil Division, proc. 583/1993, 21.03.2000
Spanish High Court judgment, Civil Division, proc. 3059/1990, 03.04.2001
Spanish High Court judgment, Civil Division, proc. 264/2003, 27.07.2004
KEYWORDS: Foreign judgment review; principles of international public order of the Portuguese State; divorce; Islamic law; Foreign law; Bangladesh; talaq; talak; principle of an adversarial process; principle of equality of arms; Bayen Talaq; translation; Bangladeshi Embassy; religious marriage; Muslim marriage and divorce rules; Muslim Family Law; Muslim religion; Sharia; Surah; Quran; Islamic tradition; divorce by repudiation; repudiated spouse; unilateral declaration of repudiation; divorce-repudiation; Muslim law; repudiation declaration; principle of equality; East Pakistan; West Pakistan; Indian subcontinent; Indian Union; former colony; British Empire; religious factor; Muslim Indians; Hindu; India; secular country; Islamic country; religious norms; Common Law; colonial regime; British India; religious customs; dowry; Muslim women; Divine Law; community of believers; Umma; Hanafi Legal School; orthodox branch of Islam; Sunni; blind obedience to tradition; Muslim population; Muslim Personal Law; Muslim marriages; Kazi; unilateral divorce; Bedai Talak; irrevocable divorce; egalitarian treatment between the spouses; principle of non-discrimination; full and effective equality; Western society; unilateral declaration by the husband; equity in the treatment of the spouses; substantive equality; shared values; value of the family; socialization of children; interests of underage children; general ban on discrimination; principle of equality between spouses
- The judgment under discussion represents a change in the Portuguese case law regarding the review of foreign judgments that have granted a divorce by repudiation (talaq). It weighed the specificities of the Islamic legal framework for the unilateral dissolution of marriage against the compliance with the adversarial principle and the principle of equality, as stipulated by Article 1096 (e) of the Portuguese Code of Civil Procedure. The Court references its judgment dated 18.10.2007, case no. 10602/2005-2, where it preferred to consider only the breach of the principle of equality in the exception of international public order of the Portuguese State , pursuant to Article 1096 (f) of the Portuguese Code of Civil Procedure, and, unlike here, confirmed the foreign judgment. A view which the Court also took in its judgment dated 07.04.2020, case no. 405/19.3YRLSB-2.
- The review of foreign judgments originating from legal systems with legal solutions which are very different from those in force in Portugal has raised major multicultural challenges for domestic courts [see PATR√ćCIA JER√ďNIMO, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa: Os desafios postos √† pr√°tica judicial‚ÄĚ, in Paulo Pulido Adrag√£o et al. (eds.), Atas do II Col√≥quio Luso-Italiano sobre Liberdade Religiosa. A Intoler√Ęncia Religiosa no Mundo: Estado da Quest√£o, digital edition, Faculdade de Direito da Universidade do Porto, 2017, pp. 59-100]. The review of foreign judgments aims at enforcing before the authorities of the State where the coercive power is to be exercised a foreign judgment which has the force of res judicata. Three models of foreign judgment review are identified in the literature: the system of automatic recognition (ipso iure), as in Italy and Germany; the system of exequatur, applied in Portugal, which entails a control of the (procedural or substantive) conditions of the judgment under review; and the combined system, like in France [see LUIŐĀS DE LIMA PINHEIRO, ‚ÄúRegime interno de reconhecimento de decis√Ķes judiciais estrangeiras‚ÄĚ, Revista da Ordem dos Advogados, year 61, 2, 2001, pp. 581 and ff.]. The requirements for the confirmation of the foreign judgment are laid down in Article 1096 of the Portuguese Code of Civil Procedure. In order for a foreign judgment to be confirmed it has to meet the following requirements: (a) There must be no doubt regarding the authenticity of the document containing the judgment or the intelligence of the decision; (b) The judgment has to be final in accordance with the law of the country in which it was issued; c) The judgment has to originate in a foreign court whose jurisdiction was not established by means of fraud and must not rule on matters under the exclusive competence of the Portuguese courts; d) There must be no cause to invoke the exception of pending litigation or res judicata with regard to a case under the jurisdiction of a Portuguese court, except if it was the foreign court that prevented the jurisdiction; e) The defendant must have been regularly summoned in accordance with the law of the country of the court of origin, and the principles of an adversarial process and of equality of the parties must have been observed in the proceedings; f) The judgment under review cannot contain a ruling whose recognition would lead to a result manifestly incompatible with the principles of international public order of the Portuguese State.
- The issue at stake is the review of a foreign judgment originating in a legal system of Islamic law, namely, the review of a sworn declaration made before a Notary, dated 24.09.2017, in Bangladesh, by means of which the divorce by repudiation (talaq) was ratified. The fact that, in this case, we have a foreign notarial decision which consisted in registering the applicant‚Äôs divorce in the ‚ÄúRegistry Book of Divorce by Husband in accordance with Muslim Marriage and Divorce Rules‚ÄĚ, pursuant to Section 27 of the Muslim Family Laws Ordinance of 1961, does not preclude the use of the procedure of foreign judgment review, since, as Lima Pinheiro has argued, ‚Äúdecision‚ÄĚ means any public act that has the force of res judicata under the legal system of the State of origin [see LUIŐĀS DE LIMA PINHEIRO, ‚ÄúRegime interno de reconhecimento‚Ä¶‚ÄĚ, op. cit., pp. 581 and ff.]. The Court noted the additional specificity of the facts at hand in that the husband‚Äôs unilateral declaration was not subject to the exercise of a public authority. It pointed out that there was not a ‚Äúfact attested according to the perception of the authority issuing the document‚ÄĚ, with reference to Article 371 (1) of the Portuguese Civil Code, but it appears that it refused to draw all the consequences that would lead to the immediate dismissal of the request based on the unsuitability of the procedure of foreign judgment review. Instead, the Court preferred to analyse the compliance of the notarial act with the further requirements laid down in Article 980 (e) (f), respectively, regarding the observance of the adversarial principle and the breach of the international public order of the Portuguese State. The Court could have taken the opportunity to discuss the constitutional provision for the protection of difference in the Portuguese legal framework, in this case, with reference to different non-State means of conflict resolution, but unfortunately this did not happen.
- Specifically as regards the divorce by repudiation (talaq) in Bangladesh, the judgment under discussion refers that, after its independence, Bangladesh adopted a Constitution (1972) that expressly states the principle of equality before the law, even though Sha‚Äôaria principles are still of great relevance. As a result of the Muslim Family Laws Ordinance of 1961, the registration of marriage is mandatory and the Kazi (the celebrant of marriage) is required, under legal obligation, to inform the respective registry office of the celebration of marriage in view of its registration. The Muslim Marriages and Divorces (Registration) Act, 1974, adopted similar provisions. According to the judgment, the most common modality of divorce at the husband‚Äôs discretion, in Bangladesh, is called Bedai Talak (talaq al-bid'ah, irrevocable/final divorce). The judgment also mentions that Section 7 of the Muslim Family Laws Ordinance of 1961 prescribes that the divorce granted by the husband only takes effect after the husband notifies the President of the local administrative government (Union Parishad) and after a lapse of ninety days from the date of issuance of the said notification. Within that period the husband may revoke the divorce. The husband is also required to provide a copy of this notification to his wife. The President, upon receiving the notification, attempts a reconciliation that, if successful, will declare the divorce void and null, but he cannot prevent the talaq by the husband.
- The judgment under discussion underlines the specificities of the review of a foreign judgment that has granted the divorce by repudiation (talaq) in compliance with the underlying principles of the legal system, in particular, the adversarial principle and the principle of equality in civil proceedings, as provided for by Article 1096 (e) of the Portuguese Code of Civil Procedure. When stating that the divorce was decreed by means of a procedure that ‚Äúdoes not consider the wife‚Äôs intervention [and] disregards the possibility of her intervention/defence, since the defendant was not granted the opportunity to oppose the dissolution of the marriage‚ÄĚ, the Court asserts the breach of the adversarial principle stipulated in Article 980 (e) ex vi Article 1096 (e) of the Portuguese Code of Civil Procedure and, on these grounds, dismisses the confirmation of the judgment under review. This represents the main innovation of the current judgment, which follows the example of the early stage of the French Cour de Cassation case law. It requires further careful attention, however.
- The autonomous consideration of the compliance with the procedural guarantees foreseen in Article 1096 (e) of the Portuguese Code of Civil Procedure must take place against the backdrop of the constitutional system of fundamental rights protection. In this regard, it is worth considering, in the first place, how the procedural guarantees are always accessory and, as stated in the judgment of the Lisbon Court of Appeal, dated 07.04.220, case no. 405/19.3YRLSB-2, that the dismissal of the review of a foreign judgment that has granted a divorce by repudiation (talaq) based on the breach of procedural guarantees is tantamount to the exclusion of the substantive regime that supports them. However, the consideration of the substantive regime of divorce shall always contemplate the other axiological principles of the domestic constitutional and legal framework, in particular in this case, the need to ensure the stability of the transnational legal exchanges in a context of growing constitutional openness to legal pluralism and the fundamental (constitutional and supra-national) protection of difference.
- The fundamental right to an effective judicial protection [ex vi Article 20(5) and Article 13 of the Portuguese Constitution] encompasses both a subjective and an objective dimension in the compliance with the principle of separation of powers. As a fundamental right foreseen in Article 20(5) of the Portuguese Constitution, it shall be observed in accordance with the principle of equality set forth by Article 13 of the Portuguese Constitution. Amongst the possible limitations, the principle of legal certainty and security, as a result of the principle of the rule of law (Article 2 of the Portuguese Constitution), intends to prevent by recognising foreign judgments the perpetuation of limping situations in transnational legal relations.
- This assessment shall always observe the principle of international sovereign equality, which is a general principle of International Law, with jus cogens status, established by Article 2 of the Charter of the United Nations and transposed into the Portuguese legal system by Article 8(2) of the Portuguese Constitution, from which the principle of equivalency in the relations of Comparative Law emerges. In this case, it also justifies the rules governing the review of foreign judgments and the exceptionality of the provision of international public order of the State. This international openness of the State is particularly significant in the Portuguese legal framework, which is historically open to the world, to difference and to multiculturalism, and is established in Article 7 of the Portuguese Constitution.
- The effective judicial protection on equal terms [Article 20(5) ex vi Article 13 of the Portuguese Constitution] shall as well be weighed against the fundamental protection of difference foreseen in the Portuguese Constitution. The prohibition of discrimination for reasons of ‚Äúterritory of origin, religion‚ÄĚ is also stipulated by Article 13 of the Portuguese Constitution and derives from the principle of free development of one‚Äôs personality, which constitutes a right of freedom (freiheitsrecht), set forth in Article 26 of the Portuguese Constitution. This principle is also referred to internationally, namely in Articles 20 and ff. of the Charter of Fundamental Rights of the European Union. The positive discrimination of difference is a constitutional requirement that departs from a unilateral perspective of equality in terms that should have been considered in the judgment under discussion. The issue here is not to determine whether or not the comparative radical differences with the context in which the equality of arms is limited in the divorce procedure by repudiation (talaq) hinder the core of the fundamental right to access to an effective judicial protection as stipulated in the domestic constitutional and legal framework, but instead whether or not the possible breach of these guarantees warrants the refusal to recognise the effects of a foreign judgment with the prejudice to the transnational legal certainty and security that comes from it. The interpretation of Article 1096(e) of the Portuguese Code of Civil Procedure in conformity with the Portuguese Constitution does not just consider the provision of paragraph (e) in isolation regarding the adversarial principle, but instead weighs it against the procedure of foreign judgment review, guided by the (also constitutional) principles of sovereign international equality, legal certainty and security, and against the fundamental protection of difference required by the Constitution.
- The Court also discussed whether this breach of the principle of equality falls under the exception of international public order of the Portuguese State foreseen in Article 1096(f) of the Portuguese Code of Civil Procedure, as acknowledged by its judgment dated 18.10.2007, case no. 10602/2005-2, and more recently by its judgment dated 07.04.2020, case no. 405/19.3YRLSB-2. In the judgment under discussion, the Court preferred to rely on the comparative French case law and the International Law commitments that are common to Portugal and France, noting that, since 2004, the French Cour de Cassation has refused to confirm foreign judgments pertaining to divorces by repudiation (talaq) on the grounds that it breaches the principle of equality of Article 6 of the European Convention on Human Rights (ECHR) and, more specifically, of Article 5 of Protocol no. 7 to the ECHR. The exception of international public order of the Portuguese State is the main form of substantive control of foreign judgments whose review is required, better yet of the potential result of the recognition of the foreign judgment, in view of the requirements of legal certainty and security of private international legal exchanges that would be better served by the automatic recognition of foreign judgments and would also further observe the principle of sovereign equality of States. The difficulty in defining in substantive terms the concept of international public order has led scholars to term it vague, topical and relative [see RUI MOURA RAMOS, ‚ÄúL‚Äôordre public international en droit portugais‚ÄĚ, BFDUC, vol. LXXIV, 1998, pp. 45-62], and was made worse by the reform of the Portuguese Code of Civil Procedure in 1995, which determines that the use of this exception of international public order is always exceptional, on a case-by-case basis assessment of the opposing options, which can only lead to the refusal of recognition of a foreign judgment whose ‚Äúresult‚ÄĚ is ‚Äúmanifestly incompatible‚ÄĚ with the international public order of the Portuguese State.
- The international public order of the Portuguese State comprises, via Article 8 of the Portuguese Constitution, a set of commitments of International and European Union Law which point to the prohibition of discrimination between spouses in divorce proceedings. The judgment at hand refers to Article 10 of the Universal Declaration of Human Rights and to the Charter of Fundamental Rights of the European Union that stipulates the equality before law (Article 20), a general prohibition of any discrimination based on any ground (Article 21), extending it to discrimination on the ground of cultural, religious and linguistic diversity (Article 22), and the equality between men and women that must be ensured in all areas (Article 23). From here the Court resorts to Article 6 of the Treaty on European Union that recognises the acquis of the ECHR, with particular reference to Protocol no. 12 to the ECHR, adopted in Rome, on 04.11.2000, that extends the general prohibition of discrimination to all areas of State activity ‚Äď not only to legal proceedings, which is of great relevance herein since it concerns the review of a foreign notarial (nonjudicial) decision. The Court also invokes Regulation (EU) no. 1259/2010 of 20 December 2010, even though the EU Court of Justice case law, in case no. C-372/16, has specifically excluded the divorce by repudiation (talaq) from its scope of application. The above-mentioned Regulation established enhanced cooperation in the area of the law applicable to divorce and legal separation; its Article 10 sets out that the law of the forum shall apply where the law applicable makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, and its Article 12 also acknowledges the exception of international public order of the law the forum to refuse the application of the law of origin.
- The Lisbon Court of Appeal, in this judgment, also considers the regulation of parental responsibilities regarding underage children amongst the concerns about the exception of international public order of the Portuguese State raised by the inequality between spouses at the time of divorce, namely in terms of equality of arms. The Court mentions the Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations, Resolution no. 1386 (XIV) on 20.11.1959; the Convention on the Rights of the Child, as adopted by the General Assembly of the United Nations on 20.11.1989; the Protocol no. 7 to the ECHR, dated 22.11.1984; and the Charter of Fundamental Rights of the European Union, whose Article 24 refers to the rights of the child, concluding that these are the reasons why the unilateral divorce is not permitted in Portugal. This constitutes a substantive perspective of divorce as a special guarantee of the right to form a family and from which both the judgment of the Lisbon Court of Appeal, dated 18.10.2007, case no. 10602/2005-2, and the discussions in the literature regarding the admissibility of the unilateral divorce in Portugal have distanced themselves. Jorge Miranda and Rui Medeiros, in their explanation of Article 67 of the Portuguese Constitution, termed this solution as ‚Äúconstitutionally dubious‚ÄĚ, since marriage is the subject of a constitutional guarantee, given that it does not constitute a precarious situation and the family founded on marriage must be protected by law [see JORGE MIRANDA and RUI MEDEIROS, Constitui√ß√£o Portuguesa Anotada, vol. I, Coimbra, Coimbra Editora, 2005, p. 412]. Vital Moreira and Gomes Canotilho share the same point of view but differ on the grounds; they consider that the divorce at one spouse‚Äôs sole discretion is ‚Äúconstitutionally questionable‚ÄĚ as it impairs the essential core of the right to divorce granted to both spouses along with the personal freedom and the right to the free development of one‚Äôs personality [see VITAL MOREIRA and GOMES CANOTILHO, Constitui√ß√£o da Rep√ļblica Portuguesa Anotada, vol. I, 4.th ed. rev., Coimbra, Coimbra Editora, 2007]. Other authors think otherwise. Carlos Pamplona Corte-Real and Jos√© Silva Pereira have argued that the divorce-failure should only be dependent on the will and views of the spouses and the judge should play a minimal role when assessing the definite nature of the breakdown desired by one of the spouses [see CARLOS PAMPLONA CORTE-REAL and JOS√Č SILVA PEREIRA, Direito da Fam√≠lia: T√≥picos para uma Reflex√£o Cr√≠tica, 2.nd ed. rev., Lisbon, AAFDL, 2011, p. 22]. Fid√©lia Proen√ßa de Carvalho is more emphatic when arguing for the possibility that one of the spouses, unilaterally, and even with the opposition of the other spouse, may terminate the marital contract, since it will free the marriage from one of its major stigmas ‚Äď the notion of perpetuity [see FID√ČLIA PROEN√áA DE CARVALHO, A Filosofia da Ruptura Conjugal, Lisboa, Pedro Ferreira, 2002, pp. 86-87]. The Lisbon Court of Appeal judgment of 18.10.2007, case no. 10602/2005-2, even stresses the law-maker‚Äôs freedom to regulate the requirements for the dissolution of marriage by divorce, pursuant to Article 36 (2) of the Portuguese Constitution, and invokes legislative initiatives like the legislative proposal no. 232/X, submitted by the political party Bloco de Esquerda (legal regime of the divorce at the request of one of the spouses).
- The issues raised regarding the constitutional admissibility of the unilateral divorce for substantive reasons related to the special constitutional guarantee of marriage as the preferable way to ensure the fundamental right to form a family, pursuant to Article 36 of the Portuguese Constitution, or to the violation of the exercise on equal terms (Article 13 of the Portuguese Constitution) of the fundamental right to develop one‚Äôs personality, foreseen in Article 26 of the Portuguese Constitution, by divorcing one‚Äôs spouse are clearly different. Therefore, the reference to the need to regulate parental responsibilities as well as the consequences of the dissolution of marriage for the spouses‚Äô assets may be treated separately by the law of the forum if the parties reside there, without limiting the spouses‚Äô personal rights regarding the celebration, maintenance or dissolution of the personal ties arising from their marriage. These facts are sufficiently autonomous to justify the recognition of the foreign judgment that decreed the divorce, as was the case in the judgment of the Lisbon Court of Appeal dated 03.10.2006, case no. 454-2006-7, or, even, the regulation of the exercise of the authority of the State of destination if the children and former spouses come to reside there, without the need to breach the spouses‚Äô right to the recognition of the dissolution of the marriage.
- The vague and subsidiary nature of the concept of international public order of the State advises against an overestimation of substantive, constitutional or legal, arguments as the ones mentioned in this case a propos the admissibility of the unilateral divorce in the Portuguese legal system. The preference for a substantive consideration of the international public order provision may open the door to a control of what, in reality, should be a cosmopolitan plural relation of Comparative Law, guided by the principle of equivalency. The exception of international public order of the Portuguese State is the ultima ratio of substantive control having regard to the requirements of legal certainty and security of the private international legal exchanges of the State (in order to avoid limping situations) which, if used crudely, opens the door to potential unilateral excesses in the illusory refusal to import only apparent ethnic implants ‚Äď the recognition of a foreign judgment addresses the effects of a unilateral divorce that has already been granted in a particular territory instead of the decree of unilateral divorce by the domestic courts, and this is why the amendment to the Portuguese Code of Civil Procedure was to set the bar at a result‚ÄĚ that is ‚Äúmanifestly incompatible‚ÄĚ with the international public order of the Portuguese State.
- Besides, the breach of the principle of equality (Article 13 of the Portuguese Constitution) in the exercise of the fundamental right to form a family (Article 36 of the Portuguese Constitution) and of the right to the free development of one‚Äôs personality (Article 26 of the Portuguese Constitution) is one of the arguments used by those who defend and those who oppose the unilateral divorce in the domestic legal system, thus we can hardly draw any definitive conclusions from here regarding the international public order of the Portuguese State, as stated by the Court in its judgment dated 18.10.2007, case no. 10602/2005-2, at least not without endorsing one of those proposals. Bearing in mind that the principle of equality does not entail a fundamental right to equality but instead a general principle of law in the exercise of each fundamental right, and that this principle is not guaranteed according to an ‚Äúall-or-nothing‚ÄĚ logic but, instead, by ‚Äúdegrees‚ÄĚ, there are several limitations possible, one of them being, precisely, the comparative ‚Äúcosmopolitan‚ÄĚ openness of the Portuguese State, in this case enhanced by the ‚Äúmulticultural case law‚ÄĚ. Indeed, a high degree of supra-national openness (international and European) of the Portuguese State is also one of the genetic markers of the Portuguese State‚Äôs public order, as it may refer to the legal pluralism allowed by the Portuguese Constitution, namely in its Article 8 regarding the acceptance of International and European Union Law. It is not difficult to include among these suggestions of legal pluralism the consideration of the sources of Comparative Law, with the potential for development of the domestic law of all the legal systems involved.
Ricardo Sousa da Cunha
Guest contributor, integrated researcher at JusGov Translated from the Portuguese by Ana Rita Silva
- This judgment is a good illustration of the difficulties encountered by Portuguese judges ‚Äď as by most of their European counterparts ‚Äď in accessing reliable legal information on the content of foreign law, in particular when it has religious grounds, as is the case with the provisions of Bangladeshi law which are relevant to the assessment of the case at hand [see PATR√ćCIA JER√ďNIMO, ‚ÄúIntoler√Ęncia, integra√ß√£o e acomoda√ß√£o jur√≠dica das minorias isl√Ęmicas na Europa‚Ä¶, op. cit., pp. 90-91]. The difficulties are made apparent in the first section of the judgment (report), where we have a description of the sequence of requests for information and clarifications on the content of Bangladeshi law, made by the Court to the applicant and, at his prompting, to the Bangladeshi Embassy, which was not particularly available to help. It is worth noting that one of the difficulties alluded to concerns the poor quality of the translations. ‚ÄúInvited to make proof of the foreign law, the applicant submitted a document pertaining to the registration of his name in the ¬ęRegistry Book of Divorce by Husband in accordance with Muslim Marriage and Divorce Rules¬Ľ, under Section 27 of the Muslim Family Law of 1961, and its translation. Following court order[,] the applicant provided ¬ęclarifications about the Divorce Law of Bangladesh¬Ľ and submitted, again, the document pertaining to the applicant‚Äôs divorce registration with a somewhat improved translation, and requested that the Bangladeshi Embassy be asked to clarify the questions raised by the Court[.] The Bangladeshi Embassy replied that ¬ęit was not in a position to answer the questions raised¬Ľ, being able only to ¬ęgive its views at to the authenticity of the documents submitted, and, if the Court so whished, give ¬ęits opinion based on the documents presented¬Ľ‚ÄĚ. The judgment‚Äôs rapporteur was careful to check the Bangladeshi legislation directly on the Bangladeshi Government Legislative and Parliamentary Affairs Division website, using research previously conducted by the Comparative Law and Documentation team of the Portuguese Prosecutor-General‚Äôs Office, as clarified in a footnote. When presenting the legislation relevant for the determination of the established facts, the rapporteur cites several provisions of the Muslim Family Laws Ordinance, 1961, and of the Divorce Act, 1869, translated by her into Portuguese and accompanied by the original English version (in footnotes), with reference to the website where the provisions were checked. The rapporteur was also careful to look into (and refer in the judgment) academic publications on the status of Muslim women in the Family Law of Bangladesh by Bangladeshi lawyers (Sultana Kamal and Kamrul Hossain), something which is not very usual in the practice of Portuguese courts and which we consider to be a welcome development. The Court‚Äôs overview of the Bangladeshi law has some inconsistencies [the titles of the legal acts are not accurate and it is not entirely clear why the Court cites some provisions (e.g. Section 8 of the Muslim Family Laws Ordinance, 1961) and not others (e.g. Section 6 of the Muslim Marriages and Divorces (Registration) Act, 1974)] and does not include any case law (a serious omission given that this is a Common Law legal system), but it has the merit of comparing different sources instead of the usual reliance on academic publications by Portuguese lawyers. The Court also makes a (not so easy) incursion into the field of Sharia Law and its interplay with the State law of Bangladesh. Here, it relies, not only on Sultana Kamal, but also on Suleiman Valy Mamede, a prominent Portuguese author in matters of Islam and Muslim Law. The judgment reads as follows: ‚ÄúIt so happens that the legal status of Muslim women in Bangladesh is defined by the Sharia principles, through the Muslim Personal Law, on a par with the General Law (which includes the Constitution and some Codes), the latter being of secular character‚ÄĚ. In a footnote to this sentence, the rapporteur adds: ‚ÄúSharia is the Islamic Law par excellence, the Divine Law, Revealed, contained in the Quran, since faith is inextricably linked to the Law, which is an integral part of it. Muslim Law was, therefore, developed on the basis of Sharia (the lawyer is at the same time a theologian), having as its purpose to legislate for the Community of Believers (Umma). The Hanafi Legal School is one of the four Schools of the orthodox branch of Islam, that is, Sunni, having been founded by Abu Hanifa, and is considered to be the staunchest defender of traditional sciences and of a blind obedience to tradition. [In] the case of Bangladesh, 91% of the Muslim population is Hanafi‚ÄĚ. The Court conflates Sharia with the Quran, which is not entirely correct, since Sharia has other sources ‚Äď Sunna, Ijma and Qiyas [see e.g. SULEIMAN VALY MAMEDE, O Isl√£o e o Direito Mu√ßulmano, Lisbon, Edi√ß√Ķes Castilho, 1994, p. 24]. It is by reference to the 65th Surah that the Court justifies its presentation of the talaq regime (included in the list of established facts) in the following terms: ‚ÄúAccording to Sharia the talaq prerogative is exclusive to the husband. Under Islamic tradition [rooted in Sharia], this modality of divorce ‚Äď Bayen Talaq ‚Äď operates by the husband‚Äôs declaration, when saying three times the word Talaq (divorce by repudiation, irrevocable), before third parties, namely before a Notary‚ÄĚ. Some of the aspects of the regime thereby described are not in the Quranic Surah, being instead the result of legal developments brought about on the basis of other sources of Sharia and/or through State legislation adopted in conformity with the Quran, as is the case with the Muslim Family Laws Ordinance, 1961. Contrary to what the Court seems to suggest at some point, this Ordinance is not, in the strict sense of the term, Islamic Law (with the meaning of law of divine origin), but instead State law (of human origin) adopted to give effect to Islamic Law (Sharia) provisions and principles.
REFERENCES IN THE LITERATURE: n.a.
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