Trapped in History: Greek Muslim Women Under the Sacred Islamic Law
Annuaire International des Droits de l’Homme, Vol. 5, 2010
Religions et Droits de l’Homme, pp. 397-418, 2010
23 Pages Posted: 2 Jul 2011 Last revised: 30 May 2016
Date Written: July 2, 2009
Sacred Islamic law (the Shariah) is applied on Greek Muslims and regulates their personal status and family relations, especially inheritance, marriage, divorce and, in the latter case, issues of custody and the award of parental responsibility. In this field the application of the Shariah does not touch upon private international law, as it is the case in many European countries; it is rather applied by the Mufti as internal Greek law on Greek citizens. As opposed to that, non-Greek Muslims bring their cases in front of civil courts, which have the discretion to decide according to Islamic law based on international private law provisions.
The present article sketches the factual presuppositions as well as the legal basis of and draws consequences from the application of Shariah law on Greek Muslims, especially women, who have consistently fallen victims of a multi-dimensional discrimination (Kofinis 2010). The focal point of the discussion is the violation of both the Greek constitution and European constitutional values.
The article departs (section II) from the personal and regional scope of the Islamic law application and its main material provisions and closely examines the contradictions between the Shariah legal ramifications and fundamental rights, especially gender equality, the right to a fair trial and the protection of the best interests of the child. Following the basic premise that Shariah law imposes second class status on women and is therefore incompatible with the constitutional values of liberal Western societies and the basic principles of human rights including gender equality and personal autonomy, it is asserted that there are political and legal ways to avoid its application, at least on European citizens. In the examination of the aforementioned ways of avoiding the Shariah implementation lies the main objective of the present article.
In order to attain this objective section III looks closer at the international law basis for the obligation of Greece to guarantee the Mufti’s jurisdiction regarding Muslim Greeks who are residents of Thrace and concludes that such an obligation no longer exists. Even on the hypothetical grounds that such an obligation was to be incurred, it is argued that the manifest unconstitutionality of many Shariah regulations and Mufti decisions constitutes adequate legal ground to negate their implementation. The article reaches the conclusion that the most viable and clear solution pertains to separation of organised religion from state affairs and to the establishment of a different system of regulation, which would eventually and hopefully lead to the uniform and unitary legal treatment of all Greek citizens independently from ethno-religious dividing lines and discriminations.
Keywords: Shariah, Islamic Law, Muslims in Europe, gender equality, Shari'a, Greece and religious liberty
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