Greek expert Ilker Tsavousoglou (Ghent University) examines developments in Western Thrace, in Greece, to illustrate the complexities of modern legal pluralism where secular states have some jurisdiction for Islamic law. Greece recognizes an Islamic law jurisdiction in Thrace, whereby it accords muftī tribunals – muftīs being expert jurists who typically give advisory opinions in Islamic law – the authority to oversee and enforce Islamic law in the region. To some observers, this system limits Muslim women’s access to equal justice under the laws of Greece, because the Islamic laws governing their lives are uncodified and often permit differential treatment. This arrangement results in a type of “legal disorder,” Tsavousoglou argues, that twists legal pluralism into a “dysfunctional mechanism” for legal regulation. Moreover, the disparities that the different systems operating in a single region create are, he argues, unconstitutional under Greek law. Accordingly, the Commissioner for Human Rights of the Council of Europe and the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) have paid special attention to Greece on assessing the status of women in the region. Both organizations found “discriminatory treatment of Muslim women as an outcome of an extensive application of Sharia in their family and inheritance relations.” In response, they issued proposals designed to accord equal rights and opportunities to Muslim minority women, including educating legal professionals and religious leaders on the “norms and principles of [CEDAW].” The operation of Islamic law in Greece exemplifies the practical difficulties of legal pluralism. Yet overall, the proposed solutions may “enhance the notions of legal pluralism and multiculturalism and effect the improvement of the levels of legal culture in Greece.”
Original publication:
Oslo Law Review, vol. 2, no. 3 (2015), pp. 241-262 (http://dx.doi.org/10.5617/oslaw2769)
Author’s Abstract
“The treatment of women in the frame of Islam has become subject to lively debate, lately concentrated in domains of the West where Islamic law seeks recognition without Islam being the prevailing creed. The discussions often are focused on concerns whether Muslim women are confronted with discriminative treatment and impediments to their access to justice. In this context, Greece occupies a unique position. Greece constitutes the only European State that recognises officially a special Islamic jurisdiction. In Thrace, Mufti tribunals are considered the cornerstone of application of Islamic law and administration of Islamic justice. However, this regime has been repeatedly criticised for failing to safeguard Muslim women’s rights. This article engages with the legal treatment of the women who belong to the Muslim Minority of Western Thrace. It examines the ways in which this religious normative regime affects their access to justice and the potential impacts that are generated from their subjection to the authority of the system thereof. The analysis is based on a methodology that combines the study of domestic and international legal scholarship with insights that were drawn from the study on representative case law of the local Sharia courts and of the competent civil courts.”
Excerpts
“… In the implementation of the above international obligations, the application of Islamic law in the Greek legal system is based on the stipulation of two domestic laws: Act 147/191414 and Act 1920/1991.15 Thus, in the Greek context, Islamic law is recognised as national law. However, it is worth noting that what is called domestic is actually the statute that introduces the applicability of Muslim law and the adumbration of the religious authority’s jurisdiction. The Greek legal order, contrary to those of other States (e.g., Egypt, Tunisia, South Africa) does not codify the substantive religious law.17 Therefore, what should be anticipated in Western Thrace to be administered is Sharia as derives from its primary sources but without any reference to certain documentation. On the other hand, its formal nature implies that this normative framework generates binding legal effects and that its regulations are enforceable. In addition, the scope of its application is restricted in terms of subjective and objective fields of applicability (partial application). Although not indisputable, contemporarily, Islamic law is accommodated in the Greek legal order as a source of law that regulates only a specified number of the legal affairs18 of the Muslims of Western Thrace.19 However, it is notable that the lack of clarity in the scope of the legal provisions allows their differentiated interpretations, which in turn results in confusion and legal uncertainty. It seems that much of the confusion is generated because of the mismatch between the extent of the applicable law (Act 147/1914) and the limits of the religious jurisdiction (Act 1920/1991).”
“NB. Article 4 of this Act reads: ‘The issues pertaining to the legal formation and dissolution of the marriages of those who adhere to the Muslim faith as well as the personal relations of the spouses and the kinship bonds are governed and judged by their Sacred Law.’ Article 5 para 2 of this Act reads: ‘The Mufti exercises his jurisdiction between the Muslim Greek citizens of his district, in issues pertaining to marriage, divorce, maintenance, guardianship, custody, emancipation of minors, as well as Muslim wills and intestate succession.’”
“The religious regime in Thrace rests on a controversial Mufti authority. The Muftis are granted by law multiple duties that include religious, judicial and administrative responsibilities. In particular, in his district, the Mufti is the spiritual leader, the judicial authority as well as the head of his office, the latter considered as public service according to the law (Article 7 of Act 1920/1991). Of this complex of activities, in a strictly legal sense, the most interesting, yet problematic one is the administration of justice. In this context, the Muftis act as single-member religious tribunals (Sharia courts).29 Their jurisdiction is a sui generis Greek conception, considering that in the Islamic administration of justice, the Qadi is the genuine judicial authority whereas the Mufti is the divine interpreter and qualified consultative theologist,30 commissioned to provide legal assistance by issuing the fetwa.31 According to the law, his jurisdiction comprises dispute-resolution of issues pertaining to Muslim marriages and divorces, the personal relations of the spouses, maintenance, guardianship, custody, kinship, emancipation of minors, as well as Muslim wills and intestate succession (Enumeration extracted from the correlation of Article 4 of Act 147/1914 and Article 5 para 2 of Act 1920/1991 ). In this regard, Muftis adopt the Hanafi doctrine of Islamic thought (fiqh), which was also the prevailing tenet in the Ottoman Empire.”
“NB: Article 5 para 1 of Act 1920/1991 provides that Muftis exercise their duties as prescribed by the law as well as their religious duties that stem from the Sacred Muslim Law within the limits of their district. They appoint, supervise and retire the Muslim religious servants, solemnise or ratify religious marriages between Muslims and issue expert religious opinions (fetwas) on matters related to the Sacred Muslim law. In addition, they are granted the power to adjudicate on issues enumerated in the law between Muslims of Greek citizenship that reside within their district, as prescribed by Article 5 para 2 of the same Act. Nowadays, there are three Mufti Offices (and Sharia Courts at the same time) in operation in Greece, in Komotini, Xanthi and Didymoteicho, all of them located in Western Thrace.”